Professor Eva Subotnik will be presenting two papers this week. Today, she will be presenting her paper Intent in Fair Use at the Pace Law School Faculty Colloquium. On Friday, she will be presenting a new work-in-progress, Fiduciary Duties and the Stewardship of Intellectual Property, at the 2014 IP Scholars Roundtable at Drake Law School. Abstracts for the two articles follow:
Intent in Fair Use
This Article explores the role of intent in the context of fair use. Specifically, it examines whether a claim of fair use of a copyrighted work should be assessed solely from an “objectively reasonable” vantage point or should, additionally, allow for evidence from the subjective perspective of the user. Courts and scholars have largely sided with the former view but have failed to explain fully why this should be the case or whether there might be countervailing benefits to considering evidence of subjective intent. Crucially overlooked is the possibility that taking the user’s perspective into account would promote copyright’s utilitarian values by stimulating socially beneficial uses that would not otherwise occur. In addition, formal recognition of the role intent plays in fair use would bring needed transparency to judicial practices in this area. This Article first develops a framework for evaluating the degree to which courts, parties, and scholars have deemed conscious compliance with fair use principles relevant to the fair use analysis. It then argues for a limited role for evidence of subjective intent, proposing criteria for when such evidence should, and should not, be weighed in the fair use calculus.
Fiduciary Duties and the Stewardship of Intellectual Property
Intellectual property laws are primarily justified on the grounds of spurring authorship and inventorship. But, particularly in the case of copyright law, with its lengthy term of protection as well as the possibility of termination rights, works of authorship that are in fact produced will be tended to and exploited by others long after the creator’s death but before they enter the public domain. This Article will explore several threads that are raised by the prospect of downstream stewardship of IP: what is the right legal prism through which to understand the nature of later-in-time decision-making that occurs with respect to the exploitation of a work? For example, should these stewards in some sense be conceived of as authors themselves by virtue of the control they exert over these works? Does their status depend on whether they are exercising rights in an individual role (say, as a family member) or in a fiduciary capacity (say, as a trustee)? This Article will examine the nature of downstream control exerted in the context of copyright law, making applicable comparisons to the laws governing patents and rights of publicity, in an attempt to offer a coherent theory of the nature and legal consequences of downstream control of intellectual property.
Eva Subotnik
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