Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of...
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Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of Copyright Dilution? 6th Annual Works in Progress Intellectual Property Colloquium Tulane University Law School - October 3-4, 2008 Lucille M. Ponte Associate Professor Florida Coastal School of Law [email protected]
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Transcript of Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of...
Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of Copyright Dilution?
6th Annual Works in Progress Intellectual Property ColloquiumTulane University Law School - October 3-4, 2008
Lucille M. PonteAssociate ProfessorFlorida Coastal School of [email protected]
PROTECTING & PROMOTING CREATIVITY
MORAL RIGHTS DISTINCT FROM COPYRIGHT
Creative Work as Both Commodity & Embodiment of Author’s Personality/Identity
Protected as Personal Civil Right & Economic/Property Right
Rights Derived from Natural Rights/Personhood Self-Expression/Personal Fulfillment as Incentive to
Create
MORAL RIGHTS AS PREVAILING INTERNATIONAL TREND
RIGHT OF ATTRIBUTION/PATERNITY Right to receive credit/designation as creator Right to prevent misattribution
RIGHT OF INTEGRITY Right to stop alteration, distortion,
or destruction of work Right to prohibit presentation of work
in derogatory manner
WHY PROTECT MORAL RIGHTS
Promoting Future Creativity & Expanded Consumer Choice
Technology as Breaking Down Nat’l Borders/Ease of Manipulation & Copying
Fulfilling Long-Ignored Int’l Obligations
Infringement Alone Insufficient to Prevent Harm to Creators/Creative Works
LIMITED MORAL RIGHTS PROTECTION
VISUAL ARTISTS RIGHTS ACT (1990)
Restricted to Limited Edition Fine Art; Not Books, Movies, Music, Electronic Publications, Works Made for Hire
Moral Rights Waivable
Rights End at Death of Creator
Artists Normally Lose Under VARA/ Common Law Theories
OBSTACLES TO MORAL RIGHTS IN U.S.
Chilling Effect on Investments in Creative Works
Increased Censorship through “Aesthetic Veto”
Disruption of Pre-Existing Contractual Rights
Lobbying by Media/Entertainment Interests
Congressional Inactivity on Moral Rights
EVOLUTION OF TRADEMARK DILUTION
State Anti-Dilution Statutes Federal Trademark Dilution Act
Trademark Dilution Revision Act Protecting Business Brand/Goodwill
Trademark Blurring
Famous ® Will Be Weakened in
Marketplace Over Period of Time
Trademark Tarnishment Famous ® Will Be Reduced in Value Over Time
Due to Shoddy Quality or Unwholesome Use
PROPOSED THEORY OF COPYRIGHT DILUTION
DISTINCTIVE CREATIVE WORKS
© BLURRING ≈ RIGHT OF PATERNITY
Right to receive credit/designation as creator Avoid weakening reputation of creator/work in
marketplace
© TARNISHMENT ≈ RIGHT OF INTEGRITY Right to stop alteration, distortion, or destruction of
work (physical) Right to prohibit presentation of work in derogatory
manner (contextual)
APPLY TO SAME CREATIVE WORKS FOR SAME TIME PERIOD AS COPYRIGHT
REASONABLE LIMITATIONS ON COPYRIGHT DILUTION
Apply Proposed Theory Prospectively
Retain Fair Use and Public Domain as well as “Works Made for Hire” Exceptions
Limit Individual’s Exercise of Rights Based on Reasonableness Standard
Provide Post-Mortem Rights in accord with Length of Existing Copyright Protections
Allow for Limited Waivers based on Specific Uses of Work – No Blanket Waivers
Like TM Dilution, Remedy of Injunctive Relief/ Monetary Damages Only if Dilution is Willful
