The Columbia Journal of Law & the Arts

Full Issue

2024-04-08T14:03:41+00:00

Covers and Front Matter

2024-04-08T14:06:56+00:00

The Patent Law Origins of Science Fiction

2024-03-09T02:01:26+00:00

This Article reveals the surprising role of patent law in shaping the literary genre of science fiction. Drawing on previously unpublished sources, the Article shows that Hugo Gernsback— the so-called “father” of science fiction who started the first all-science-fiction magazine in 1926—believed that works of science fiction are analogous to patents. Like patents, science fiction stories can disclose useful information to the public about new inventions. Like patents, science fiction stories can influence future inventors and drive innovation. Gernsback went even further, positing that some of the inventions depicted in science fiction should themselves be patentable. In 1952, he urged Congress to reform the Patent Act to make so-called “Provisional Patents” available to science fiction authors who depicted major technological developments before their time. He argued that science fiction authors who filed for Provisional Patents should get an extra thirty years in which to show their invention worked. If they could do so, they would thereafter be able to obtain an ordinary patent, to last another twenty years.

Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy, and rightly so. Granting patent rights too early in an invention’s lifecycle creates new and unjustified opportunities to hold up innovation. A science fiction author who obtained a Provisional Patent for a theoretical invention could crawl out of the woodwork half a century later and sue the very people who figured out how to make the invention work. Gernsback’s ideas for patent reform were half-baked and, the Article shows, probably self-serving. Nonetheless, exploring the connection he cultivated between patents and science fiction yields many surprising insights for science fiction and for innovation policy. Science fiction has more in common with patents than it might seem. Although science fiction does not typically impart enough information to “enable” others to make and use the inventions it describes, science fiction can inspire readers and supply them with a motivation—in Gernsback’s words, a “stimulus”—to implement science fictional inventions in the real world. Science fiction, like patents, can play a role in promoting innovation.

Fair Use and the Judicial Search for Meaning

2024-03-09T01:45:17+00:00

Are courts capable of deciphering the true meanings of artworks? Is it reasonable for them to try? Recent litigation between the Warhol Foundation and the photographer Lynn Goldsmith brought these questions into sharp focus. Fair use, the limited exception to the otherwise exclusive property rights granted to copyright owners, requires courts to assess the meaning of a secondary work so that they can determine whether the secondary use is sufficiently “transformative” to qualify for the fair use defense. Warhol used Goldsmith’s photo of Prince as the basis for his silkscreen, which he called the Orange Prince. Was it infringing, or was it fair use? What did Warhol’s work mean? Despite the centrality of this doctrinal question in all fair use disputes, neither courts nor scholars have ever devised a methodology for assessing new meaning. The theoretical vacuum has led to unpredictable and inconsistent case law. Warhol provided the Supreme Court with a rare opportunity to sharpen methodology, but the Court declined, leaving a pernicious theoretical gap at the heart of the fair use doctrine.

This Article provides a much-needed judicial basis for assessing new meaning. By weaving together doctrinal analysis—with insights drawn from existing case law—and art theory, the Article provides a framework that courts can utilize to determine whether new meaning exists.

First, the Article proposes a methodology that allows courts to determine whether there is new meaning without forcing judges to try to find—in vain—what a work of art “really” means, a doctrinal and theoretical dead end that, to date, has yielded painfully inconsistent case law. Second, the proposed methodology not only relieves judges from the impossible task of figuring out what a work of art means, but also provides a clearer standard for when new meaning is transformative. Third, the suggested standard for transformativeness provides a useful method for finding a healthy balance between free speech and economic rights, which are inevitably at odds with each other in fair use disputes. By recognizing that creative works have unique interpretive demands and that the judge’s role should be to inquire into meaning rather than to legislate it, the Article provides our courts—as well as fair use practitioners—with a clearer path forward than our current jurisprudence allows.

After Abu Dhabi: Restoring Integrity and Accountability in Formula 1

2024-03-09T01:50:23+00:00

By any metric, Sir Lewis Hamilton is one of the greatest drivers in Formula 1 history. With seven World Championship titles, 103 race victories, 104 pole positions, and 197 podiums under his belt to date, he continues to perform after nearly two decades at the pinnacle of motorsport. For many fans, the exciting aspect of a sport comes from the spectacle of competition, where regular people can watch an elite group of athletes fight for the title under a set of strict guidelines that are designed to promote fairness and offer a chance for any competitor to win. This veneer of a level playing field is shattered, however, when the very people put in charge to ensure accountability are the ones who contravene the established rules. Formula 1, with its flashy cars and highspeed racing, is no stranger to excitement and controversies. But the 2021 season brought to light certain aspects of the sport’s regulations and governance structure that many fans were unaware of, but which sit at the heart of the sport.

The 2021 Abu Dhabi Grand Prix ended the 2021 Formula One World Championship in a dramatic and controversial fashion. Mercedes’ Lewis Hamilton and Red Bull’s Max Verstappen went into the final round with an equal number of points scored for the World Drivers’ Championship. The race was decided in the final few laps after Williams’ Nicholas Latifi crashed into the barriers with five laps remaining. After the safety car was deployed, Verstappen pitted for a fresh set of soft tyres, while Hamilton stayed out to maintain track position. On the second-to-last lap, Race Director Michael Masi directed only the five lapped cars between Verstappen and Hamilton to unlap themselves, in direct contravention of established Fédération Internationale de l'Automobile (FIA) rules. On the final lap, the green flag was deployed and the race resumed; Verstappen overtook Hamilton on his fresher tyres and maintained the lead, going on to win the Grand Prix and consequently the World Drivers’ Championship. Mercedes initially filed protests for breach of sporting regulations, but eventually withdrew them, citing a loss of faith in racing and that what happened in Abu Dhabi was "not right."

This Note will clarify the problems with the current self-governing system utilized by FIA by examining the level of external versus internal decision-making and accountability systems, including the current judicial remedies offered by FIA. I will specifically examine the substantive discretion accorded to the Race Director and stewards to dictate the events of each Grand Prix, and what avenues are available to drivers and teams when a dispute arises that involves actions by the stewards. Namely, I will address the inadequacies of an organization attempting to police itself using its own appeals system. I will compare the governing structure and dispute resolution mechanisms used by FIA with the structures used by Major League Baseball (MLB) and the Fédération Internationale de Football Association (FIFA). I will then offer three potential methods of introducing external accountability to FIA—the Court of Arbitration for Sport (CAS) arbitration, MLB arbitration, or civil justice—and ultimately recommend CAS arbitration to FIA for adoption.

Deconstructing the Blueprint for Infringement: Remedying Flawed Interpretations of the § 120(a) Exception to Architecture Copyrights

2024-03-09T01:53:34+00:00

Drafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations.
Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal—itself not without built-in tensions—was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving the interests and expanding the rights of America’s architects in one corner. In the opposite corner, with a seemingly outsized influence, were the proponents of the rights of America’s architectural photographers. Finally, and most abstractly, there were the proponents of preserving the elusive integrity of copyright law itself. As a testament to this elusiveness, the most active debates were fought not between the architects and photographers, but rather among America’s foremost copyright experts whose various normative frameworks led them to competing views on how best to facilitate the progression of the law.

While all views were considered, the final product is unsurprisingly flawed: an amalgamation of poorly assimilated concepts with rampant logical loopholes. The flaws are most evident in § 120, the scope of copyright protection for architecture. Section 120(a) provides an exception, common to nearly all Berne Union members, allowing buildings to be replicated in other artists’ two-dimensional works without violating the copyright of the building’s architect. During the drafting process, while there was debate over the exact wording, there was little debate over whether to include this exception, as it seemed fairly innocuous and important for the endurance of the urban photography industry.

In 2022, the U.S. District Court for the Western District of Texas interpreted this exception to allow a realtor to reproduce and distribute the blueprints of a single-family home for marketing purposes without the consent of its architect. As confounding a conclusion as this may seem to those well-versed in copyright law, it is actually not entirely unfounded in the text. This is due in part to an edit that was made during the drafting of the definition section of the Act to include “architectural plans” in the definition of “architectural works,” thus arguably extending the same exception from the exterior of constructed buildings to their blueprints. As such, in an effort to meet its Berne obligations and provide added copyright protection for America’s architects, Congress may have inadvertently stripped architects of a right that they previously held.

Before the passage of the AWCPA, architectural blueprints were protected as “[p]ictorial, graphic, and sculptural works,” and were therefore protected against unauthorized reproduction in two-dimensional form. That said, these blueprints were not protected against construction of the buildings depicted in them because the buildings themselves were nearly always considered “useful articles,” with few to no conceptually separable elements. This protection for blueprints was clarified and codified in the Berne Convention Implementation Act of 1988, which added “diagrams, models, and technical drawings, including architectural plans” to the definition of “[p]ictorial, graphic, and sculptural works.” Substantively, the result of this amendment—that architectural plans that contained copyrightable elements could not be reproduced and distributed without the consent of the copyright owner—made no difference except to appease those concerned about the lack of explicit statutory language responsive to Berne Convention requirements. The real substantive change came a year later with the AWCPA, which created a new copyright subject matter category: “architectural works.” This category covers both plans and constructed works, thus protecting against the construction of buildings from protected plans.

It is important to note here that the AWCPA was not intended to replace the copyright protection in blueprints as “pictorial, graphic, and sculptural works,” nor was it meant to take precedence over that right. After the AWCPA, architectural blueprints are simultaneously protected both as “architectural works” and as “pictorial, graphic, and sculptural works.” These two forms of copyright protection bring with them different standards and different exceptions, but they are meant to coexist. Protection as a “pictorial, graphic, and sculptural work” is subject to the conceptual separability test. However, those elements that are deemed copyrightable are always protected against unauthorized reproduction. As noted above, the AWCPA includes a pictorial representations exception. In applying the pictorial representations exception to architectural plans, as the U.S. District Court for the Western District of Texas did, however, the protection that copyright holders previously held against reproduction of their plans as “pictorial, graphic, and sculptural works” is lost. Loss of that protection means that there is no statutory means of preventing rampant copying and distributing of architectural blueprints of constructed buildings visible from public places. It also means that protection as “pictorial, graphic, and sculptural works” for architectural plans is rendered toothless.

This is a problem for a few reasons. First, for the most successful architects, there exists a market in their blueprints and architectural drawings as art forms themselves. A quick Google search reveals that one can purchase prints of the original architectural plans of renowned architectural works, such as those by Frank Lloyd Wright, Frank Gehry, and Michael Graves. These prints contain as much artistic value as any other prints and thus Wright, Gehry, and Graves deserve the right to control the market for their original drawings just as much as Hopper, O’Keeffe, and Warhol do. Second, while it remains unlawful to construct buildings out of blueprints without the authority of the owners of the copyrights in the blueprints, there are other economic benefits that might come from copying and distributing the blueprint. Other architects might consciously or subconsciously copy those blueprints, without authorization from their authors. Realtors might circulate the blueprints to potential buyers, to promote houses on the market. The purpose of copyright law is to provide incentives to authors to create works by granting them limited monopolies on their works. With nearly no monopolies on their blueprints, architects may find that they lack incentive to create them. More abstractly, this would allow one section of the Copyright Act to invalidate another section of the Copyright Act, thus rendering the entire Act unstable.

In order to ensure that architectural plans remain protected against reproduction and the integrity of copyright law is preserved, Congress or the courts must reiterate the persistent protection of plans as “pictorial, graphic, and sculptural works” and clarify that, while an “architectural work” could be any physical manifestation of architecture, the § 120(a) exception applies only to the constructed exterior (or publicly accessible interior elements, such as the interior of the Capitol building’s dome) of the work. This interpretation is simple, but understanding why it was necessary to add architectural plans to the definition of “architectural works,” how Congress failed to perceive the ambiguities that addition potentially introduced, and where to go from here requires in-depth analysis of the legislative history and text. Part I of this Note will present the requisite background information, including the history of the inclusion of architecture in the Berne Convention, U.S. implementation of the Convention, expert opinions on the language at issue, and international interpretations. Part II will address the problems that have emerged in subsequent case law and the paradox that the intended beneficiaries might not be the actual beneficiaries of this protection. Finally, Part III will present solutions to the problem.