The Columbia Journal of Law & the Arts

Full Issue

Columbia Journal of Law & the Arts — 2024-09-30

Understanding the MetaBirkin: Trademark Law and an Appropriate Legal Standard for NFTs

Michelle Gery — 2024-09-30

This note argues that the recently decided trademark case, Hermès v. Rothschild, highlighted the flaws of the Polaroid factors and their singular focus on determining consumer confusion, and makes a case for an expanded understanding of a copyright fair use defense in trademark law. Two forms of fair use are already acknowledged in the trademark context, but neither are comparable to the much stronger fair use exception in copyright law. The factors in the copyright fair use defense seem to strike directly at the heart of the most salient concerns in Hermes v. Rothschild, while the Polaroid factors seem to allow only tangential considerations of certain key factors.

Copyright Is a Joke: Perspectives on Joke Theft in Stand-Up Comedy, and How To Save the Punchline

Jared B. Hopper — 2024-09-30

It seems that while comics are interested in using the law to enforce joke theft, no legal mechanism currently exists that would apply in a meaningful way to the intangible and ever-changing nature of performed comedic material. Perhaps the realities of the stand-up comedy industry are incompatible with a purely legal solution, and it would be better to get creative, break down the norms-based system, and determine how best to import components of legal redress in a way that not only preserves the efficacy of the current approach but also addresses some of the pitfalls leading to inconsistent enforcement. In attempting to bolster the protections against joke theft while respecting the preferences of comedians, learning from the law might be better than leaning on the law.

Covers and Front Matter

Columbia Journal of Law & the Arts — 2024-09-30

The Seesaw Effect: How Unregulated Negotiations Undermine Regulated Prices in the Market for Music Streaming

Doug Lichtman — 2024-09-30

Spotify, Pandora, and other firms that stream copyrighted music must acquire a variety of copyright permissions in order to legally stream even a single song. Federal law regulates the price charged for some of those necessary licenses, but other equally necessary licenses are sold in the unregulated market. This causes a seesaw effect where government efforts to raise or lower rates are blunted, or even fully reversed, by responsive private negotiations. In essence, in the hope of achieving one or another policy aim, the government dramatically orders a reduction in the price of right shoes, only to see the unregulated price of left shoes move correspondingly higher in return. In this Article, I consider the degree to which this largely ignored seesaw undermines the public policy stories that scholars, government officials, and industry stakeholders tell about the regulation of music streaming. Those stories turn out to be significantly incomplete, because the regulatory infrastructure is likewise significantly incomplete.