Judges: you never really understand a person until you consider things from his point of view.

Dahlia Lithwick writes of her legal hero, Atticus Finch, and the noxious myth that empathy has nothing to do with being an effective judge:
Atticus’s life instruction to his daughter, Scout. As he explains, “If you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view, until you climb Read more

Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

The myth of authorship and the rise of a new artistic culture

As I’ve pointed out previously, my colleague and friend Martha Woodmansee’s scholarship is fundamental to the reexamination of the historical bases of our present conceptions of “authorship”:
An “author” in the modern sense is the creator of unique literary, or artistic, “works” the originality of which warrants their protection under laws of intellectual property — Anglo American “copyright” and European “authors’ rights.”
Now Abram Sinnreich, in Mashed Up: Music, Technology, and the Rise Read more

Richard Posner: Law Schools need to hire more professors who identify more strongly with legal practice.

From Richard Posner writing in honor of the memory of Bernard Meltzer:
What has happened since the 1960s—that watershed decade in modern American history—is the growing apart, especially but not only at the elite law schools, of the lawyer and the judge on the one hand and the law professor on the other hand. Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has Read more

August 28, 1963

Why don’t law professors know how to be lawyers?

I’ve made plain my disdain for the ways law schools neglect what anyone outside law school faculties would presume is the central purpose of law schools — to train law students how to be lawyers. Among the ways this neglect manifests itself is the second class status accorded most clinicians and legal writing professors — those professors whose focus is on teaching practice — in most law schools. Now Brent Read more

If you think lawyers lifting other lawyers’ language is proof lawyering is easy, you know nothing about true creativity.

There’s always the danger that when someone suggests that genuine creativity can and is built from earlier creative works that someone else will believe the implication is that creativity is no big deal. If I feel I can cut-and-paste from other lawyers’ works then lawyering must be nothing but a cut-and-paste job, right?
It’s not as if I’ve never dealt with these matters for real, as if I’m dealing with it Read more

Manny Garcia gives up his claim that he, not the Associated Press, owns the copyright in the photo he shot and that Shepard Fairey used as the source of the image in the Obama Hope poster.

Manny Garcia has dropped all the claims in the lawsuit over whether Shepard Fairey’s Obama Hope poster infringed the copyright in the photo Garcia had taken and that Fairey had used as the source of the image. The Stipulation of Discontinuance with Prejudice filed in the case is embedded below.
What this means is that Garcia has given up his claim that he rather than the Associated Press owns the copyright Read more

Words and Ideas as Common Property: Lewis Hyde, Stanley Fish and lawyers as “plagiarists”

In yesterday’s New York Times, Robert Darnton reviewed Lewis Hyde’s newly published Common as Air: Revolution, Art, and Ownership, describing it as “an eloquent and erudite plea for protecting our cultural patrimony from appropriation by commercial interests.” As Darnton explains, “Hyde invokes the [founding fathers] in order to warn us against a new enclosure movement, one that would fence off large sectors of the public domain — in science, the Read more

Special Friday Night Mashup: Negativland’s “U2,” a lesson in copyright (not least because it’s available online now)

The facts” re U2 v. Negativland:
August 20, 1991: SST Records releases a CD single by Negativland called “U2″, a tape-collage parody of U2’s “I Still Haven’t Found What I’m Looking For” featuring sampled and scrambled portions of the U2 song itself and a found tape of radio personality Casey Kasem losing his cool. As part of the joke, the CD packaging features the title–the letter “U” and the numeral “2″–largely Read more

Blanch v. Koons, transformative appropriation art, and Fairey v. AP

It’s well worth revisiting the decision by the United States Court of Appeals for the 2d Circuit (the Circuit in which the court hearing Shepard Fairey’s lawsuit against AP and Manny Garcia is pending) in Blanch v. Koons, 467 F.3d 244 (2006). Andrea Blanch, “an accomplished professional fashion and portrait photographer,” unsuccessfully sued Jeff Koons for copyright infringement of a photograph she had shot entitled “‘Silk Sandals by Gucci’ (‘Silk Read more

Andy Warhol was sued, but the cases were never decided.

After posting Campbell Soup’s letter to Andy Warhol expressing admiration for his Campbell Soup paintings 2 weeks ago, I’ve been asked by several people whether Warhol was ever sued for his appropriations of copyrighted photographs. He was indeed, though all of the cases settled out of court with Warhol “paying” by giving the plaintiffs pieces he had created. They therefore provide no guidance how courts would rule on those claims. Read more

Saturday Night Music: Glenn Gould — Goldberg Variations ## 29 & 30 (a “quodlibet,” look it up)

Friday Night Mashup: Evolution Control Committee — Rocked by Rape

Why Shepard Fairey’s deceit should not stop the court from finding that the Obama Hope poster did not infringe the copyright in the photo it was based on.

There has been a lot of discussion (here, for example) about whether Shepard Fairey’s deceit in the course of discovery in his lawsuit with the Associated Press and photographer Manny Garcia constitutes “bad faith” that will tilt the fair use analysis against him and compel the court to rule that his Obama Hope poster an infringement of the copyright in the photo that Garcia shot.
I don’t think so, and the Read more

Hot Tuna: Uncle Sam Blues

A few more (last?) thoughts on Donald Rosenberg v. Plain Dealer and Cleveland Orchestra

Tim Smith, with whom I participated in a twitter chat 2 nights ago, expressed there and on his blog yesterday, the kind of thinking about the conflict between Donald Rosenberg, the Plain Dealer, and the Cleveland Orchestra that represents a problem and dispute resolving attitude that, I think, the best lawyers embody. There’s no question Rosenberg was no fan of Franz Welser-Möst, the Orchestra’s conductor. There’s no question his views on Read more

Tweet chat at 9pm tonight on Donald Rosenberg v. PD and Cleveland Orchestra

Janice Harayda has arranged and agreed to moderate a twitter chat on the Donald Rosenberg lawsuit against the Plain Dealer and the Cleveland Orchestra tonight at 9 p.m. EDT. I will be fortunate enough to be participating with Tim Smith, the classical music critic for the Baltimore Sun. The hashtag for the chat will be #DonR.
Addendum: Rosenberg’s claims against the Plain Dealer are grounded in an article he wrote for the Read more

Why I didn’t like Donald Rosenberg’s lawsuit against the Plain Dealer and Cleveland Orchestra.

I want to expand a bit on why I don’t believe a lawsuit of the sort Donald Rosenberg brought is a useful way of enforcing journalistic integrity. My opinion, of course, is grounded in the belief I’ve had since I first heard of the lawsuit that there was little if any legal merit in it.
First, our legal system is intended to remedy individual harm. It does so by limiting the Read more

Jury rules against Donald Rosenberg

A jury found for the Plain Dealer and the Cleveland Orchestra’s governing body yesterday, rejecting all of reporter Donald Rosenberg’s legal claims arising out of the decision by the Plain Dealer to relieve him of his duties as the Orchestra’s reviewer and reassign him.
As anyone who has followed my speculations on this lawsuit knows, I have always been skeptical of the legal merits of Rosenberg’s claims. As the NY Times Read more