Posts tagged ‘Eva Subotnik’

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May 9, 2016

Subotnik Wins Award for Empirical Research Project on the Role of Intellectual Property in the Business and Art of Photography

Professors Eva Subotnik, Jessica Silbey (Northeastern University School of Law), and Peter

subotnik[1]

Eva Subotnik

DiCola (Northwestern University School of Law) have been awarded a $10,000 grant for intellectual property and innovation research from the Spangenberg Center for Law, Technology & the Arts at Case Western Reserve University School of Law. Their future project, Empirical Study of Intellectual Property, Photography, and Changing Aesthetic and Business Practices, will investigate the business and art of photography. The goals of the project are to learn by employing various empirical methods how earning a living as a photographer (or through photography) and the practice of photography have changed in the digital era. In particular, it will focus on the roles intellectual property law plays in the changing (or enduring) aspects of photography as a professional and artistic endeavor.

Announcement of the award is available here. 

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April 4, 2016

Subotnik’s Article To Be Published by Washington Law Review

Professor Eva Subotnik’s article, “Artistic Control After Death,” has been accepted for evapublication by the Washington Law Review. Here is the abstract:

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music is a fundamentally troubling notion. This article evaluates instructions given with respect to authorial works against the backdrop of the laws and policies that govern bequests more generally. In particular, it considers the enforceability of attempted artistic control through the imposition of a fiduciary duty. In balancing the competing interests, this article considers the demands of both state trust laws and federal copyright policy. In the end, the article argues that authorial instructions must yield to the needs of the living. Such a view requires that, to the greatest extent possible, some living person(s) be authorized to decide how works of authorship are used—even if that means overriding artistic control by the dead.

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January 13, 2016

Subotnik to Present Article at NYU Law School IP Workshop

This Friday, January 15th, Professor Eva Subotnik will be presenting her paper, Artistic Control After

Eva Subotnik

Eva Subotnik

Death, at the Sixth Annual Tri-State Region IP Workshop at NYU School of Law. Professor Brett Frischmann, of Cardozo School of Law, will serve as the paper’s commentator. An abstract follows:

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The weakening of the Rule Against Perpetuities, the rise of the honorary trust, and the availability of incentive trusts and conditional bequests all portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music seems fundamentally troubling. This article situates the instructions given with respect to authorial works within the constellation of instructions given with respect to—and the policies that govern—other types of bequests. In particular, it considers the enforceability of attempted artistic control through the use of a fiduciary duty. In balancing the competing interests, this article considers the demands of both federal copyright policy and state trust and right of publicity laws. In the end, the article argues that authorial instructions must yield to the needs of the living. In particular, such a view requires that some living person(s) be in a position to make decisions about uses of a work of authorship.

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January 6, 2016

Subotnik Speaks on Scope of IP Rights at AALS Annual Meeting

On Saturday January 9th, Professor Eva Subotnik will be speaking on a

subotnik[1]

Eva Subotnik

panel at the Annual AALS Meeting that will address the scope of intellectual property rights. A description of the topic and speakers follows:

Interpreting the Scope of Rights in IP  (1:30 pm – 3:15 pm [6390])

A recurring question in intellectual property law concerns the delineation of the scope of the protection it confers. Enforcing rights in intangible things often requires some form of interpretation (linguistic or otherwise) to determine the very boundaries of the thing protected. In order to understand what a copyright’s protection includes, for instance, it is necessary to engage in idea/expression analysis, or otherwise separate the utilitarian (non-protectible) aspects from the expressive (protectable) ones. A patent’s enforcement typically hinges on claim construction (or interpretation), and a trademark’s enforceability similarly depends on interpretive issues regarding the trademark’s meaning to consumers and its functionality. All three areas thus embed epistemological and evidentiary questions in their assessment of scope yet they are not always recognized as questions concerning interpretive choices and methods. Recent case law has seen renewed attention to interpretive questions, including how patents should be construed (and whether these issues are questions of fact or law); by whom; and at what point in litigation. Recent scholarly debates concern whether IP statutes should be interpreted like other subject matter statutes. This Panel will examine the question of scope in intellectual property law as a function of interpretive questions that require greater theorization as such.

Speakers: 

Amy M. Adler, New York University School of Law

Kevin Emerson Collins, Washington University in St. Louis School of Law

Mark A. Lemley, Stanford Law School

Margaret-Jane Radin, The University of Michigan Law School

Eva E. Subotnik, St. John’s University School of Law

Moderator: Zahr Said, University of Washington School of Law

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December 18, 2015

Subotnik’s Harvard JOLT Article Reviewed on PrawfsBlawg

Professor Eva Subotnik’s article, Copyright and the Living Dead?:

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Eva Subotnik

Succession Law and the Postmortem Term, forthcoming shortly in the Harvard Journal of Law & Technology, was reviewed on PrawfsBlawg by Andrew Gilden.

In her article, Subotnik argues that succession law principles provide discrete, though qualified, support for a postmortem copyright term and that more precision should be used in categorizing the costs associated with postmortem protection. In particular, in many instances, the costs should be conceptualized as resulting from suboptimal stewardship by the living rather than from dead-hand control. 

In his post, Gilden writes that “Subotnik’s article makes at least two important contributions to the literature: First, she brings copyright law more explicitly into conversation with trusts & estates theory and scholarship….Subotnik provides some useful new ways of using succession law to think about the very long postmortem copyright term, and her article more broadly reads as a blueprint for some fruitful conversations between and among copyright and T&E scholars….Second, Subotnik’s article begins the useful task of disaggregating the initial ‘life’ term from the ‘plus 70.’…As Subotnik observes, succession laws generally recognize the strong desire for individuals to provide for their loved ones, the sentimental attachment to particular items, and an interest in preserving legacy.  Structuring copyright around a postmortem term might accordingly provide a qualitatively different set of incentives than the financial incentives typically acknowledged in the case law.…Definitely worth a read!”

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October 7, 2015

Subotnik to Present Article at Texas A&M IP Scholars Roundtable

Professor Eva Subotnik will be presenting her work-in-progress, Artistic Control After Death, at the inaugural Texas A&M IP

Eva Subotnik

Eva Subotnik

Scholars Roundtable in Fort Worth this Friday and Saturday, October 9-10.  The Roundtable brings together intellectual property and technology law scholars, providing them with an annual forum for sharing research and peer networking. In addition to the usual work-in-progress presentations, this interdisciplinary Roundtable will feature substantial commentary offered by veteran commentators and extended Q&A sessions.  Information about the Roundtable is available here:

The abstract to Professor Subotnik’s article follows:

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die?  Looked at through the lens of general succession law trends, there is some evidence to suggest that strong control is warranted.  The weakening of the Rule Against Perpetuities, the rise of the honorary trust, and the availability of conditional bequests all portray a tightening grip of the dead hand.  And yet, an unconstrained ability of the dead to determine future uses of works of art,music, and literature seems fundamentally troubling.  This article situates the instructions given by authors with respect to literary and artistic works within the types of instructions given by decedents with respect to other bequests.  In particular, it considers whether the use of a fiduciary duty to ensure artistic control is an appropriate and enforceable maneuver.  Weighing in favor ofsuch enforcement, arguably, are the natural and personhood rights of author-testators as well as the possible up-front incentive effects on them.  Weighing against, arguably, are the natural and personhood rights of others as well as the possible long-term effects on cultural development.  In balancing these competing interests, this article considers, among other things, the demands of both federal copyright policy and state trust and right of publicity laws.  In the end, it argues that authorial instructions must yield to the needs of the development of culture.  Such a view requires that some living person(s) be in a position to make decisions about the uses of literary and artistic works.

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October 6, 2014

Subotnik Speaking at Symposium on Authors and Performers

Eva Subotnik

Eva Subotnik

This Friday, October 10th, Professor Eva Subotnik will join Professor Molly van Houweling of UC Berkeley Law School and Professor Daniel Gervais of Vanderbilt Law School for a panel discussion at Columbia Law School’s symposium addressing the concerns of professional authors, artists and performers and suggesting changes to law and practice that would benefit authors and encourage creativity.  Professor Subotnik will present a talk entitled “Actors and Artists as Authors,” forthcoming in the Columbia Journal of Law & the Arts, which will explore the degree to which different kinds of creative professionals can and do benefit from the status of “author” under the Copyright Act.

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September 15, 2014

Professor Eva Subotnik Chairing Federal Law Clerk Copyright Seminar

Eva Subotnik

Eva Subotnik

This Tuesday, Professor Eva Subotnik will be chairing and co-teaching the annual Law Clerks Copyright Seminar, sponsored by the Copyright & Literary Property Committee of the New York City Bar Association.  This program, which will be co-taught by top IP practitioners in the NYC area, provides the incoming federal law clerks of the Second and Third U.S. Circuit Courts of Appeals with an overview of copyright law as well as an introduction to new legal developments in this area.  The program will be held on Tuesday, September 16, 2014, from 5pm to 7:45pm, at the Daniel Patrick Moynihan U.S. Courthouse, 500 Pearl Street, Room 850, in Manhattan.  Information about the program can be found at:  www.nycbar.org/clerks

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