Reading list: measuring the impact of user rights

Abstract

International and domestic
copyright law reform around the world is increasingly focused on how copyright
user rights should be expanded to promote maximum creativity and access to
knowledge in the digital age. These efforts are guided by a relatively rich
theoretical literature. However, few empirical studies explore the social and
economic impact of expanding user rights in the digital era. One reason for
this gap has been the absence of a tool measuring the key independent variable
– changes in copyright user rights over time and between countries. We
developed such a tool, which we call the “User Rights Database.” This paper
describes the methodology used to create the Database and the results of
empirical tests using it. We find that all of the countries in our study are
trending toward more open copyright user rights over time, but the wealthy
countries in our sample are about thirty years ahead of developing countries on
this measure. We find evidence of benefits that more open copyright user rights
generate, including the development of high technology industries and scholarly
publication. We do not find evidence that opening user rights causes harm to
revenue the of copyright intensive industries like publishing and
entertainment. We have released all of the data gathered in this project to the
public under an open license to enable its use by other researchers. Our
empirical findings are relevant to several major arguments for or against
expansions of copyright user rights that one hears frequently in reform
debates.

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Allegedly false certification for competitor brings trade secret, deceptive practices claims

Duro Corp. v. Canadian Standards Assoc., 2017 WL 6326862,
No. 17 CV 1127 (N.D. Ohio Dec. 11, 2017)
Duro, a distributor of high end gas ranges, sued the CSA, a
nonprofit consumer product safety testing organization, for misappropriation of
trade secrets, violation of the Ohio Deceptive Trade Practices Act, and Lanham
Act violations.  The CSA issues a
“Certificate of Compliance” to tested products that meet the requisite
standards.  Duro Ranges have been
CSA-certified, as Duro highlights in its advertising, allegedly contributing to
its success and profitability. A non-party, Hyxion, manufactures Duro Ranges in
China.  Hyxion allegedly used designs it
acquired for the manufacture of Duro Ranges to begin manufacturing its own
brand of “knock off” ranges which are virtually identical in design to Duro
Ranges, but which use cheaper parts.  The
Hyxion “knock offs” have also been certified by CSA, and this certification
allegedly harmed Duro’s sales.
The main allegation of the complaint is that CSA’s certification
of the Hyxion ranges was improper, and wrongly based on the belief that the Hyxion
ranges were identical to Duro’s even though Hyxion used different parts. As a
result, CSA allegedly used the Duro Range drawings and test results to certify
corresponding Hyxion ranges instead of independently testing the Hyxion ranges.
The CSA website which advertises its certification of the ranges refers to the
Hyxion ranges as having the trade name “Hyxion/Duro” despite the lack of
affiliation.
On the state law trade secret claim, CSA argued that, because
Duro provided the Duro Range drawings to its manufacturer, Hyxion, it did not
take reasonable steps to maintain their secrecy, and also that the test results
didn’t belong to Duro, and therefore cannot be Duro’s trade secrets.  The court found the complaint sufficiently
alleged trade secret misappropriation for the design drawings, which were to be
treated as confidential under the parties’ agreement. “Disclosure of
proprietary information, as necessary, to parties essential to the manufacturing
and marketing of a product does not strip that information of its trade secret
status if reasonable steps are taken to ensure the confidentiality of the
information,” as was alleged here.  However,
the test results couldn’t be trade secrets; they weren’t identified as
confidential in the parties’ agreement, and they were independently developed
by CSA.  The federal trade secret claim
failed because there was no alleged misappropriation on or after May 11, 2016,
that law’s effective date. Hyxion’s continuing use of the CSA certification might
be relevant to damages, but there was no allegation that the design drawings
themselves were appropriated beyond the initial misuse.
The Ohio Deceptive Trade Practices Act covers, among other
things, “(1) passing off good or services as those of another (2) causing the
likelihood of confusion or misunderstanding as to affiliation, connection , or
association with, or certification by another; (3) representing that good or
services have sponsorship, approval, characteristics…status, affiliation, or
connection that they do not have; (4) representing that goods are of a certain
standard, quality, or grade…if they are of another.”  Duro argued that two statements/practices were
deceptive: (1) CSA’s ads for its own services, specifically the statement that
its certification mark should offer “peace of mind to retailers, regulators,
consumers and end users the word over by indicating that your products have
been independently tested and have met the required standards for safety &
performance,” and, (2) CSA’s certification of the Hyxion products.
The first statement wasn’t adequately alleged to be false;
indeed, Duro’s claims relied on the “peace of mind” idea being true and therefore increasing sales.  Thus, Duro couldn’t claim any damage from CSA’s
ad.  Indeed, if Duro truly believed that
CSA’s independent testing claims were actually false, Duro itself “could
potentially be at risk of violating of the ODTPA.”
However, CSA’s certification of Hyxion was plausibly alleged
to violate the ODTPA through false certification. The complaint alleged that
CSA materially represented, through its certification, that Hyxion’s products
met certain safety standards, even though CSA had not properly tested the
products. Further, the complaint alleged that CSA listed Hyxion’s products as
having a trade name of “Hyxion/Duro” on its website, which could have caused
consumer confusion over whether Hyxion was affiliated or associated with Duro.  The court also noted that “[i]t is difficult
to imagine how Duro would be able to prove deception, or causation of damages
if it cannot eventually prove that CSA would not have certified the Hyxion
products but for the alleged misuse of Duro’s information,” which is an
interesting point—the falsehoods alleged are related to, but not necessarily
determinative of, the ultimate harm-causing behavior, the certification itself.
The court also dismissed the Lanham Act claims, because they
weren’t alleged to be in “commercial advertising or promotion.” Duro
sufficiently pled that the statement of certification was commercial speech
that is disseminated to a substantial portion of the plaintiff and/or
defendant’s existing customer or client base. However, the complaint failed
sufficiently to allege that the statement was made for the purpose of influencing
customers to buy CSA’s goods or services, as the Sixth Circuit test requires.  An out-of-circuit case allowed a claim to
proceed where a statement was made to support affiliates and thus directly
increase the defendant’s own profits, but “[n]o such economic incentive exists
for CSA’s certification of the Hyxion ranges under the alleged facts of this
case.”

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Knit-picking right of publicity question of the day

I’m learning to knit, and at the local store I encountered this charming pin:

Does Arnold Palmer have any recourse against the “yarnold palmer”?

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I’m a judge, not a media theorist, Jim: NFU doesn’t protect use of Dr. Seuss font in mashup case

Dr. Seuss Enterprises, L.P. v. ComicMix LLC, No. 16-CV-2779
(C.D. Cal. Dec. 7, 2017)
Though the court dismissed the first trademark/copyright
infringement complaint against this Star Trek/Dr. Seuss mashup, the amended
complaint survives.
Copyright: It’s still transformative, but the complaint
added information about the fourth fair use factor.  Dr. Seuss’s earlier complaint alleged that it
was not uncommon for it to license its works and collaborate with other rights
holders; the court presumed a potential harm to licensing opportunities, but
still found that Oh, The Places You’ll
Boldly Go
“does not substitute for the original and serves a different
market function” given that “Boldly’s market relies on consumers who  have already read and greatly appreciated Go!
and Dr. Seuss’s other works, and who 
simultaneously have a strong working knowledge of the Star Trek series.”  The amended complaint alleged that Dr. Seuss
had published derivative works of Go! such as Oh! The Places I’ll Go and other
works based on the Dr. Seuss IP such as Oh, The Things  You Can Do That Are Good for You!  “Dr. Seuss” doesn’t appear on the book covers,
which include names of other authors, even though they’re recognized by the
public as Dr. Seuss works.  ComicMix
argued that none of these were “crossover works that integrate pre-existing
characters or imagery from another 
entertainment franchise, such as Star Trek, with those of Dr. Seuss.” Dr.
Seuss argued that The Wubbulous World of Dr. Seuss, “a live action/puppet show
produced by the Jim Henson Company featuring Dr. Seuss’s well-known and
beloved  characters alongside new,
Muppet-like characters created by The Jim Henson Company,” showed that Boldly was the kind of derivative work
that Dr. Seuss had the right to develop and could develop or license others to
develop.
The court declined to presume market harm, because of the
transformativeness of Boldly.  Still, factor four weighed in Dr. Seuss’s
favor.  On the allegations of the
complaint, there’s a potential market for literary mash-ups, and such a market
wouldn’t be unlikely based on Dr. Seuss’s past licensing programs. Motion to
dismiss denied, as before.
Dr. Seuss secured an even better result on its
trademark/unfair competition claims, which had previously been dismissed. Dr.
Seuss claimed trademark rights to (1) the title Go!; (2)  “the stylized font used consistently on the
front and back covers, spine, and title page of 
the Dr. Seuss books such that this use of the styled font has come to be
recognized by  consumers as a source
identifier for Dr. Seuss,” and (3) “the unique illustration style of the  characters and backgrounds found throughout
Dr. Seuss books.”  Dr. Seuss also claimed
registrations for Go!; Go! 25th Anniversary, and for a trademark in connection
with downloadable digital children’s books, among other goods, as well as a
family of  common law trademarks deriving
from the title of Go!
Based on the allegations of the complaint, Dr. Seuss alleged
protectable marks in the Go! title, and it was unnecessary to determine whether
it could claim separate rights in the fonts used on other book covers or inside
the book.  Illustration style cannot be a
protectable mark, even if particular characters can be.
Nominative fair use (should have gone with Rogers, as this result illustrates, no
pun intended): The fact that defendants’ use wasn’t exact wasn’t disqualifying,
especially given the complaint’s allegations of misappropriation/use of the
marks. Likewise, NFU can apply as long a defendant uses the plaintiff’s mark to
describe the plaintiff’s product, even if the ultimate goal is to describe the
defendant’s own product, which is what happened year.  And the product (the underlying work) wasn’t
readily identifiable without use of the mark. 
And defendants didn’t do anything other than use the mark that would
suggest sponsorship or endorsement; people might not read the disclaimer on the
third page, but disclaimers aren’t required.
However, factor two was the problem: the use was more than
reasonably necessary (I think the court is saying that this is true for
purposes of the motion to dismiss, not definitively, but I’m not sure) because
defendants didn’t just use the words, but also the font of the original, “down
to the shape of the exclamation point. The Court finds it was unnecessary for
Defendants to use the distinctive font as used on Go! to communicate their
message (i.e., that Boldly is a mash-up of the Go! and Star Trek universes).”  Aviva USA Corp. v. Vazirani, 902 F. Supp. 2d
1246 (D. Ariz. 2012), applied NFU even though the defendant there used the
“distinctive colors and font” of plaintiff’s mark, but that was part of a “very
obvious negative  commentary directed
toward [plaintiff]” that could not lead to confusion.  [Again you see the benefit of Rogers.]

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DMCA exemption survey: for vidders and other remixers

Take an 8-minute survey and help make the #DMCA decryption exemptions more user-friendly for vidders: bit.ly/2nEfY8j

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Sazerac will pay fees for its buffalo stance

Sazerac Company, Inc. v. Fetzer Vineyards, Inc., 2017 WL
6059271, No. 15-cv-04618 (N.D. Cal. Dec. 7, 2017)
The court here awards defendants its fees for proceeding
past summary judgment in this trademark infringement case. “This was an
exceptionally weak case,” though Sazerac had a legitimate motive in bringing it—to
avoid “loss of control over its brand.” What made this case stand out was that “Sazerac
proceeded to trial—where the only available remedy was injunctive relief—with
zero evidence that it had been harmed in any way. Its decision to continue
litigation unnecessarily burdened the court and defendant.”  The court awarded fees incurred after the
summary judgment order, over half a million dollars.
Sazerac alleged that Fetzer’s 1000 Stories red zinfandel
buffalo mark and trade dress infringed Sazerac’s BUFFALO TRACE word mark,
Buffalo logos, and trade dress for its BUFFALO TRACE bourbon whiskey. The court
ultimately Fetzer’s request to preclude monetary damages because Sazerac failed
to disclose an expert to prove damages, as it indicated it would in its initial
disclosures, and the remaining injunctive relief claims were tried to the
court.

The basic claim sounded in trade dress; the buffalo depicted
on the Fetzer label wasn’t an imitation of the Sazerac buffalo, and Sazerac
consistently argued “that it was the combination of Fetzer’s buffalo with the
reference to ‘bourbon’ in ‘BOURBON BARREL AGED’ that confused consumers as to
the source of Fetzer’s 1000 Stories wine.” But Sazerac failed to provide any evidence of secondary meaning.  For belt-and-suspenders
purposes, the court also rejected the claim using the multifactor likely
confusion test.  Among other things,
Fetzer showed widespread use of buffalo marks in the alcohol market, while Sazerac
presented “no evidence of a single instance of actual confusion[,]” which the
court found quite compelling considering the products’ “extensive presence, coexistence,
and interaction with consumers” over three years, and “the fact that the
products even appeared two tables apart from each other at the 2016 Bourbon
Classic.”
The court rejected Sazerac’s argument that fees were only
available for improper motivation, litigation misconduct, or objective
unreasonableness. Under Octane Fitness,
the standard is more relaxed.
There was no allegation of improper motive, but the court
highlighted that there was “zero evidence of actual confusion,” which was especially
important given Sazerac’s reliance on confusion to establish harm.  Sazerac did introduce a survey, which the
court rejected, but the majority of respondents who falsely believed that the
products were connected “identified the buffalo logo as the source of their
confusion, as opposed to other options such as ‘label’ or ‘looks similar’” –
this might have supported a trademark infringement claim based on the large
buffalo mark, but not an independent claim for trade dress infringement.  Importantly, the main trade dress claim
failed both on protectability and on likely confusion, as well as on evidence
of harm, indicating the weakness of the case.
Sazerac maintained that its incontestable rights in the
Buffalo Logo obviated the need for it to establish that its trade dress had
secondary meaning, but that’s a misstatement of the law under Wal-Mart and blurred the line between
its trademark and trade dress infringement claims. It turned out that Fetzer
had been correct in its motion for summary judgment when it argued that “[t]his
case is about Sazerac’s improper efforts to exclude all others from using in
commerce the generic term ‘bourbon barrel aged’ in conjunction with any image
of a buffalo.” Indeed, one of the reasons Sazerac’s survey was “fatally flawed”
was because the control didn’t use the word “bourbon,” because the survey
expert indicated that it was his understanding that Fetzer’s use of the phrase
“Bourbon Barrel Aged” was somehow wrongful.  On summary judgment, the court concluded that Sazerac might
be able to prove a likelihood of confusion without asserting rights over
“bourbon.” But it became clear at trial that Sazerac could not do so.
The summary judgment motion didn’t address irreparable harm,
but after Sazerac survived that, it was required to present evidence to succeed
at trial, but instead it relied on the “meager” disputed facts that enabled it
to survive summary judgment and showed no evidence of harm. “These deficiencies
effectively render its entire manner of litigation wholly unreasonable.”  Though Sazerac was precluded from introducing
evidence of monetary damages, that was Sazerac’s own doing, and it didn’t
prevent Sazerac from presenting evidence of reputational damage, or any other
form of irreparable harm.
The case began for subjectively legitimate reasons, but “once
[Sazerac] forfeited the right to pursue damages and the case ‘officially’
became about injunctive relief, it was unreasonable for it not to present any
evidence of irreparable harm.” This also meant the case was litigated
exceptionally.  Evidence of harm would
have been uniquely within Sazerac’s possession, and it was required under Herb Reed.  Sazerac argued that it provided evidence of
harm in its loss of control over its brand. But that claim relied only on the
conclusory statements of its senior marketing director, and was completely
speculative.
And here, the court does something I’ve long wanted to see
(yay Judge Orrick): it walks through the harm scenario, showing its absurdity:
A consumer would have to purchase
1000 Stories wine—which … occupies a “double niche” market given its price
point and varietal—because s/he looks at the bottle and draws an association
with Sazerac’s Buffalo Trace bourbon. And, in envisioning this obscure
possibility, keep in mind that Buffalo Trace represents 0.5 percent of the
whiskey market. Now assume that this consumer is a bourbon drinker (because
that is 1000 Stories’ target demographic) who goes to the store looking for a
red zinfandel. S/he purchases 1000 Stories because s/he knows of Buffalo Trace
and associates 1000 Stories with it because of the 1000 Stories trade dress.
Then, for Sazerac to suffer damage to its good will, that consumer would have
to dislike 1000 Stories to the point that it would impact his or her
perspective of Buffalo Trace, and, by implication, Sazerac, who, as an aside,
owns over 350 brands.
Among the problems with this scenario, there were no
assertions that 1000 Stories was inferior, so the only potential harm to
Sazerac was a speculative and remote “loss of control” over one brand. “Accepting
this extremely unlikely scenario to arrive at a finding of any harm would still
have been insufficient for Sazerac to succeed, considering the other elements
required for a permanent injunction,” especially the harm Fetzer would suffer
if forced to change its label.

Brand owners may attempt to protect their rights, but they
must have “an objectively reasonable basis for believing that its rights are
under attack and consumers are at risk of being confused.” Moreover, Sazerac
needed to “demonstrate some harm— separate from the potential for confusion”—to
win. Exceptionality was shown by Sazerac’s failure to show evidence (1) that
1000 Stories was using any colorable imitation of any of Sazerac’s asserted
trademarks; (2) that it had any protectable trade dress; (3) on six of the
eight Sleekcraft factors; and (4) of any type of irreparable harm. 

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Roundtable: The Right of Publicity in New York, St. John’s University

An Academic Discussion of Policy Choices in
Designing a Publicity/Privacy Rights Regime: Rothman, Buccafusco, & Tushnet
The roundtable is on the proposed changes to NY’s ROP, which are very extensive.
[I didn’t take notes early on, sorry, but Prof. Rothman discussed issues like transferability,
postmortem rights/justifications thereof; Prof. Buccafusco worked through the
statutory text and showed that the exception to the exception to the exception
structure raised lots of questions such as the treatment of biopics]
Bankruptcy: freely transferrable rights can be transferred involuntarily in bankruptcy. OJ Simpson: faced forced
transfer of his IP, including his book, released under a cover that looked like
it said “I Did It” instead of “If I Did It”
Reed v. Town of Gilbert: Supreme Court announced a stringent
rule applying strict scrutiny for content-based distinctions and exceptions:
there has to be a compelling government interest justifying the regulation and any
exceptions also have to meet stringent tests—overbreadth will get the law
struck down, but so will exceptions that indicate that the law isn’t targeting
enough of the issue
Consider a biography of a literary figure that includes a
number of quotes from her writings that qualify as fair use, or that are
licensed by the copyright owner who isn’t the ROP holder—that seems to replicate
her professional activities—there seems to be different treatment for writers,
composers and artists than for other creators or public figures, and that could
generate first amendment problems as well as uncertainties.
Other lessons from recent challenges to new problems largely
generated by the digital age: revenge porn laws—where written broadly, risk
invalidation as overbroad—Anthony Weiner and now apparently a number of other
congresspeople are the usual examples: if you write a law that would prevent a
woman from speaking out about the explicit photo that a congressman sent her,
then your law is overbroad and will probably not survive First Amendment
scrutiny.
By contrast, narrow laws directed at unwanted disclosures of
ordinary people’s intimate photos shared in consensual contexts can and should
survive.
Publicity rights are different from revenge porn, but the
lesson about being clear about the goals, especially when you go beyond
regulating advertising, is very important
Recent case from the 9th Circuit: while the 9th
Circuit had previously approved very expansive rights of publicity, Hurt Locker
case it reversed course—applying ROP to a movie at all required the ROP to
survive strict scrutiny, which it could not do at least in the circumstance of
the Hurt Locker
Inextricably intertwined
w/the right of publicity
: definition? 
Completely new concept, not borrowed from other doctrines; there is a
related concept for determining what is commercial speech, but in that case
when the First Amendment protected content is inextricably intertwined with
unprotected content, the First Amendment wins, and this provision seems to be
designed to reverse that.
Agree with professor Buccafusco about the questions about
biopics.  Documentary about athlete’s sports
successes? 
Vagueness and uncertainty concerns—First Amendment doctrine
says that if you can’t readily determine what’s covered, the law will be void for
vagueness.  Here is where a more specific
labor right, similar to the special privacy rights now granted to police
officers in section 50, rather than an exception to the exception might be
better tailored to deal with what seems to be the concern
Another example where a court might find an invalid content
based exception under Reed is the exception for the use of an individual’s
right of publicity for fund- raising purposes by not-for-profit radio and TV
stations
Also raises copyright preemption issues: even if 1A doesn’t
preclude a use, the Copyright Act may do so if it interferes w/rights to reproduce
works that the performers or athletes consented to making—Dryer case in the 8th
Circuit, Maloney in the 9th Circuit, 7th Circuit also—2d
Circuit is unlikely to create a split by allowing a ROP claim to proceed
against a work even if it is subject to the exception to the exception—focusing
on the labor law components of a reanimation claim could be more likely to
avoid preemption
Part 3: A Discussion With Legislative Actors About The Goals
and Means of A8155-A/S5857-A: Sen. Savino, Bergin, Clenahan, & Maggs
Savino: Important to understand how we create
legislation.  W/o lots of input you end
up with bad law.  Fewer members of the
legislature now are lawyers; we rely on counsels/staff to draft laws.  History of ROP in NY started w/a girl who saw
her face on a bag of flour and sought redress. Beginning is an individual who
felt aggrieved and sought redress from her gov’t— “lobbyist” began in NY where
people waiting for legis. would sit in the lobby.  Views this as a labor issue—workers’ rights.  Time to update NY law.  Has heard from SAG-AFTRA and MPAA, but now
hearing from IP lawyers. We don’t want trolls.
Bryan Clenahan: 99 year old law needs to be updated for the
digital age. This is a fluid process w/ more drafts to come.
Robert Bergin: Represents the majority leader, lead sponsor
of bill.  1902 marked first case, and
also introduction of Brownie camera, opened up a new field.  Reanimation/computer generated images reach a
point where changes are needed.  Fairness
to deceased’s estates about benefiting from use v. other people w/no connection.
Amy Maggs: Central staff/drafter.  In the room where the inextricably
intertwined language happened.  [But gets
bonus points for Hamilton reference.]
Scavino: Suggestions for language changes to correct the
deficiencies identified?
Jeremy Sheff: lots of parts of the draft use language with a
history. But salient terms don’t have that pedigree, either not explicitly
defined or not found in statute on the books w/100 years of history.  What is the impetus for including those terms
in the draft?  Is there a way to either
define those terms or create legislative history for interpreting those terms?
Maggs: We know inextricably intertwined is imperfect—that’s
being negotiated among parties.  Partially
meant to deal w/avatars and digital recreations like those in Rogue One.  [But I’d even add talk about why you have proposed
protection for “gestures.”  Why is that
important for those objectives?]
Bergin: What we were looking at is existing law, grafting
onto it. Not trying to undo 100 years of experience.  We’re trying to add postmortem and dealing
w/new tech. Trying to keep purposes of trade.
Maggs: took out the misdemeanor, b/c we were asked to get
rid of that.
Scavino: Actual entities affected—what may appear to be
confusing is language they’ve agreed on to protect their interest; it made
sense to them.   [This isn’t a great justification for First
Amendment purposes.]
Maggs: some of the language was agreed to by all parties.
RT: Rogue One
wouldn’t be purposes of trade in current law. 
If you leave purposes of trade where it is in the current law you are
also clearly trying to cover Rogue One
and thereby creating a serious interpretive issue.  This is why you might want to leave purposes
of trade where it is and create a separate provision targeting avatars if that’s
the specific concern.
SAG-AFTRA and MPAA may understand the language, but if other
people don’t that’s still a problem. First Amendment cases are often brought by
outsiders who aren’t covered, and to design a system in which insiders are
protected and outsiders aren’t is pretty much a problem from the First Amendment
perspective.
Rothman: leave in place what you have which is working well
in most instances. Rather than complicating it with exceptions to exceptions,
affirmative descriptions of narrow, precise right is a smart approach. Tech
change: technical neutrality is important—need to think about whether current
law actually addresses this. Reanimation is new, but recasting is not.  There’s a lawsuit about Back to the Future
II, Crispin Glover sued because he was recast (they used existing footage and a
prosthetic mask); old law provided an opportunity to protect his rights.  Unintended consequences: think of people who
don’t have lobbyists who aren’t getting exemptions who might be affected. That’s
why she is specifically concerned about transferability of rights—young actors
(even minors) w/o bargaining power who will transfer their rights away.  Websites, journalists, ACLU—a more diverse
base consulted. 
Maggs: several unions support the bill.
Rothman: may not understand unintended consequences.
Clenahan: how have states dealt w/intestate transfer?
Rothman: 25 states don’t have intestate rights; Illinois
says creditors can’t get it; Nebraska said it’s not transferable; it’s an emerging
issue not litigated very much.  More
pressure likely to come.  (Bettie Page
transferred her rights to CGM when she was very old, windfall for CGM and not
much justification for it.)  There isn’t
a great model in a statutory postmortem right, but if we really care about
heirs it should be focused on inheritance by natural persons.  Could also do confusion about sponsorship
requirement as some states do.
Q: Lock down the substance first, then the language.  What does “transformative” mean in the ROP
context?  Borrowed from © where it’s been
the most enormous controversial issue in ©. 
Judicially made construct.  Would
Vanna White case come out the same way under transformative standard?  What is NY’s interest in protecting
noncitizens?  Only 5 states allow that, not
even California.
Maggs: If it’s wrong to exploit someone’s persona it’s
wrong. 
Q: what if it’s not wrong in the state where they lived their
whole life and died?
Scavino: Congress might be better, but we know that’s not
going to happen. States as incubators; maybe this will eventually percolate
up.  As NY goes, so goes the nation.
Maybe if NY says this, that will force a larger discussion.
Q: Live stage rights: Carole King, Frankie Valley/Jersey
Boys. The exception seems like it covers a musical, but the exception to the
exception seems to bring that back in. When clients ask whether ROP is
required, what is the answer?  Create and
write the musical, but the next step is reading—may be considered a
solicitation under the statute.
Maggs: Exception to exception is more about avatars/create
people after they’re dead.  [Then maybe
it should be written that way?]  That’s
part of the confusion.  That language has
to do w/Zacchini and taking away
someone’s job by taking whatever entity they’ve created and recreating it w/o
them—recreating their persona.  [Chris
Pine needs to worry about William Shatner, it seems to me!]
Q: Athletes and biopics: does the exception to the exception
come in if there are reenactments of big sports scenes?
Maggs: They had someone play “Who’s on First/What’s on
Second”—they’d gone too far [that’s a copyright case involving fair use—and I
note that the transformative use exception is subject to the exception to the
exception, so even a transformative use is unprotected if it is “inextricably intertwined”
w/ performance]. Depending on how it’s done—if you put a clip from a sports
event on stage v. you have someone pretending to be people, there’s a lot of
variations. [Seems to suggest that one of those should be illegal?]  She’s not sure how that biopic would come out.  [Ulp.]
Q: Active debate about whether we care about the likeness
being transformative or whether the work as a whole is transformative. The use
has a lot of baggage.  Remedies portion:
purposes of trade is in the remedies portion; is there a point of limiting the
remedy more than the scope of the right?
Maggs: want to change as little as possible in the case
law? 
Q: so you would have a right but you wouldn’t be able to get
damages if it wasn’t for purposes of trade?
Maggs: yes. A lot of the language like transformativeness comes
from other states’ legislation.
Q: if it’s wrong it’s wrong, then why would you deny this
right to the estate of someone who died 10 years ago?

Maggs: Rights have vested, estates have paid taxes, etc.

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