Accrediting Private Collections To Serve the Public Interest in Art

This Note is about the civic role of private collections of art. Specifically, it argues that private collections can and should be a fixture of the U.S. cultural landscape alongside museums, which are devoted to serving the public. To some extent, this already happens. Collectors often lend their artwork for museum exhibitions, for example, and some put their entire collections up for public display. Nothing better illustrates the convergence of owning art as an asset and for conspicuous public display than one entrepreneur’s business idea to sell prefabricated private museums: Why not make it easy for collectors, with readymade galleries to accommodate the Koons or the Basquiat? But this Note adds to commentators who wish to see a reform in private collecting so that the public benefits more from these collections than it does currently. This Note argues that the public interest calls for enhancing, not subordinating, the role of private collectors. Certain commentators argue that collectors should be compelled to act in service to the public, either by lending significant works of art to a museum or publicly displaying the works themselves.Behind such proposals lies the notion that private collections and museums are in tension, and that museums are a superior institution for benefiting the public, if private collections are capable of providing public benefits at all. Informing this intuition are the legal and normative differences between private and museum ownership. Museums are subject to certain obligations that collectors do not share, the rationale for which is that they vindicate the public interest in art. But it does not follow from this distinction that collectors, lacking these obligations, cannot also promote the public interest through their own actions. Private collections should play a complementary role to museums in serving the public interest. Private collections and museum collections are qualitatively different in meaningful ways. Furthermore, museums appear increasingly unable to effectively promote the public interest in art, at least without help. Thus, this Note proposes a regime that would harmonize the civic practices of collectors and museums while preserving the role of the collector. Part I explains the differences between collectors and museums with respect to ownership. One way to understand these differences is to say that while collectors mostly operate under general principles of property law, their art being their chattel, museums are subject to certain obligations on account of their charitable status and purpose. Building on the idea that these obligations exist for the benefit of the public, Part II describes how previous scholars have defined the contours of the “public interest in art” and introduces one paradigm in particular for reforming private collecting so that it serves the public interest. Part II then critiques this paradigm and shows why a different approach is necessary; in doing so, it makes an important distinction between proposals that focus on individual works of art and proposals that focus on collections in their entirety. Part III outlines an incentive-based system for achieving the desired reform under this new approach. Accrediting private collections that meet certain criteria for providing public benefits could motivate collectors to act civically and promote better practices for private collecting broadly, depending on the benefits associated with accreditation.

Investor-State Dispute Settlement Reform: Reconsidering the Multilateral Investment Court in the Context of Disputes Involving Intellectual Property Law

On January 18, 2019, the European Commission submitted a proposal to the United Nations Commission on International Trade Law to establish a multilateral investment court for investor-state disputes. The European Commission’s proposal reflects growing discussions about the potential reform of the investor-state dispute settlement system. While the present work on reform options focuses on issues relating to the legitimacy of the investor-state dispute settlement system, the effects of the reform options on investor-state disputes that specifically involve intellectual property law remain to be examined. This Article argues that although the proposed multilateral court structure offers a comprehensive approach to addressing the concerns with the investor-state dispute settlement system, it does not address a number of issues that are specific to disputes involving intellectual property law. This Article analyzes issues that arise from the arbitral tribunal’s role in investor-state disputes that involve laws governing intellectual property at the international and domestic levels. In doing so, this Article shows that these issues are distinct from the ones that broadly relate to the legitimacy of the investor-state dispute settlement system. In light of these issues, this Article proposes additional considerations for the multilateral investment court structure. Specifically, this Article proposes including expertise in the relevant international agreements as a selection criteria for adjudicators and giving deference to the host state’s courts in disputes that involve issues of domestic intellectual property law.

The Press and Libel Before New York Times v. Sullivan

This Article argues that Sullivan was not only a “civil rights case,” but also very much a libel case, one that was influenced by contemporaneous debates over libel law and freedom of the press. The Court intervened in what was perceived at the time as a near-crisis for the press caused by an increasing number of libel suits and large damage awards against publishers in the 1950s and ’60s. This escalation was a notable departure from the relatively tame “libel climate” of the previous forty years. For most of the first half of the twentieth century, the press had been able, to a remarkable degree, to avoid and defeat libel suits through strategic navigation of the libel law landscape. By combining a tactical accommodation of libel law with a dedicated resistance to it, the press had learned to “liv[e] with the law of libel.” By the 1940s, most of the nation’s major newspapers faced only a handful of libel suits each year, and the amount paid in judgments and settlements was low. The upset of that equilibrium, starting in the 1950s, put libel on the Supreme Court’s radar, and it spurred the Court to contemplate more aggressive intervention into the state law of libel. In what follows, I shed new light on Sullivan through an account of the history of libel law and litigation in the United States in the years prior to the case, and the libel law context in which Sullivan was initiated and rose through the courts. This Article does not dwell on the constitutional law developments that influenced Sullivan or the common law of libel prior to Sullivan, but instead focuses on how the press dealt with libel, and the practical implications of libel law for American print media in the years leading up to Sullivan. In so doing, it reveals a reality about libel law that cannot be readily gleaned from a study of case law or treatises: that for much of the twentieth century, especially prior to the 1950s, libel did affect press behavior and the ability of the press to publish newsworthy stories, although it likely did not have the highly chilling effect on the press that its rigid formal doctrines suggested. Libel law did impose burdens on the press; it did require self-censoring to some extent. Yet many sectors of the press enjoyed broad latitude to report the news and to comment on politics and public issues, libel law notwithstanding. That state of affairs, however, was seemingly threatened by changing libel trends in the 1950s and ’60s. Changes in the nation’s social and political culture, new dynamics of tort litigation, and new norms and practices of journalism increased the willingness and ability of plaintiffs to sue for libel and to recover damages. In an era when controversies around communism and civil rights, hostility towards the press, and large jury verdicts in tort cases encouraged the use of large-scale libel litigation as a weapon in political and cultural battles, when tort judgments increased nationwide, and when news publications received record-high jury verdicts in libel cases, many news outlets could no longer rely on their established systems for dealing with libel suits, and the likelihood of chilling effects was heightened. This change in the libel climate was not the only force encouraging the Court to institute constitutional protections in libel law, but it was an important factor, one that has been overlooked in standard accounts of the Sullivan case. This Article describes the libel law history leading up to New York Times v. Sullivan. It explores the cultural and legal contexts that surrounded the case, and it suggests the influence of those contexts on the Supreme Court’s actions in Sullivan. Drawing on legal sources, popular literature, journalism, and the archival papers of publishers, it offers an account of how the press accommodated and resisted libel, how libel law shaped the workings of the press, and how the press shaped libel law. The Article focuses on major newspapers (and to a lesser extent, magazines) that dealt regularly with libel issues and libel litigation, and also preserved substantial records of their operations. This Article chronicles the rise, fall, and partial resurgence of libel as a critical concern for the press in the United States from 1880 to 1964. Part I provides background on the law of libel. Part II describes the development of the mass circulation press in the late 1800s and the many libel suits that accompanied the rise of popular publishing. A surge of libel suits, spurred in part by sensationalistic yellow journalism, posed a formidable burden and near-existential crisis for newspapers in the late nineteenth century. By the early twentieth century, however, the adoption of professional ethics and standards of accuracy and objectivity in journalism, including fact-checking and “libel-vetting” programs at many newspapers, reduced the number of potentially actionable statements and defused the libel crisis. The need to reduce or avoid libel had become an integral part of the professionalization of journalism. Therefore, by the 1920s, primarily as a result of the press’s own efforts, libel had receded to the periphery of the problems faced by most major newspapers. As Part III describes, those elaborate systems of editing and checking for libel, the use of legal counsel to conduct prepublication review, and aggressive litigation strategies kept the number of libel suits and judgments low at most publications. These efforts consumed resources and curtailed some news content. Yet anecdotal accounts from publishers and lawyers suggests that they did not impose stifling burdens on publishing. A fairly broad freedom of the press existed, if not in formal law, then in the law’s practical operation. The 1950s saw the resurgence of libel suits against the press. In the political ferment of the postwar era, an emboldened, well-funded press engaged more forthrightly in political critiques and investigative journalism, and the subjects of such reporting reacted with libel suits. As Part IV describes, the number of libel suits against the press increased, as did the amount of damages claimed and awarded. Many of the press’s established strategies for dealing with libel no longer functioned as they once did. Libel law became more of a concern for the press, and libel cases became central to the era’s political and culture wars. Against this contentious backdrop, the Supreme Court made its first, historic intervention into libel law in New York Times v. Sullivan.

Is There a New Extraterritoriality in Intellectual Property?

This Article is the first to comprehensively interrogate the impact of the Supreme Court’s recent interventions in extraterritoriality as it relates to the three historical forms of federal intellectual property: patent, copyright, and trademark. In this manner, it fills an important gap in the literature because most assessments of the presumption focus only on one area of law. Moreover, this Article offers a novel comparative assessment of the evolution of the presumption across the patent, copyright, and trademark regimes, offering both a descriptive account of the state and evolution of the law, as well as a normative assessment of whether the current state of the law best effectuates the policies that justify these forms of protection. In reviewing the application of the Supreme Court’s recent jurisprudence in these three areas of intellectual property, the Article concludes that the Supreme Court’s effort to standardize the law of extraterritoriality has failed. Lower courts’ engagement with the presumption has been, at best, inconsistent. There are times where the courts simply ignore the Court’s recent cases, relying on previous cases and doctrine without pausing to reconsider whether those doctrines survive the Supreme Court’s latest changes to the law. The Article also concludes that this inconsistency cannot be justified based on the differing policies surrounding copyright, trademarks, and patents. This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been some impact on patent law, but virtually none on copyright or trademark. The Article assesses whether there is a new extraterritoriality for intellectual property and concludes that there is not: The Supreme Court’s efforts, at least in IP, have not led to greater coherence. While there may be reasons for the lower courts’ failure to follow the framework, it does represent a missed opportunity for cross fertilization, at least among intellectual property regimes, if not across all fields of law. It also offers a call for the consideration of comity—looking to foreign law and potential conflicts—in deciding whether to apply U.S. law extraterritorially.

Retelling Copyright: The Contributions of the Restatement of Copyright Law

The provisions at issue in the draft Restatement of Copyright Law on which ALI membership will vote at ALI’s upcoming annual meeting are central to copyright doctrine and have been the subject of numerous court decisions over the past several decades of technological and industry change: originality, fixation, categories of copyrightable subject matter, the idea-expression distinction, and authorship and ownership. This abundance of legal activity on copyright law demonstrates the value to the profession of this project retelling copyright. In contrast to the dramatic criticism of this Restatement project alleging political capture or illegitimate law reform, the draft’s provisions are routine and straightforward. They will surprise no one and are almost boring in their adherence to and synthesis of the copyright statute and judicial interpretations of it. Far from being radical or ill-advised, the Restatement of Copyright Law is a reasonable and welcome addition to the work of the ALI. Part I of this Article situates the current Restatement of Copyright Law in the historical context of other ALI projects, drawing parallels in their purposes, processes, and political tensions. Part II describes the controversy over a “retelling” of copyright law as misguided insofar as it fails to account for the practice of interpretation as part of the practice of law that is constrained by professional standards. Part III describes the analysis and exposition of the provisions of the draft portions of the Restatement of Copyright Law presented to the ALI membership for discussion and vote this year as unremarkable but also beneficial, achieving the ALI’s goals of clarification and simplification of the sprawling federal case law interpreting and applying the 1976 Copyright Act.

The Myths of Textualism and Their Relevance To the ALI’s Restatement of the Law, Copyright

In 2015, Justice Elena Kagan famously proclaimed, “We’re all textualists now.” To which I ask, “When were we not?” Justice Kagan not only used the word “now,” but also provided her evidence that being a textualist is of recent vintage. She asserted that when she was at the Harvard Law School in 1983, the inquiry concerning a statute was “what should this statute be,” rather than what do “the words on the paper say.” And she attributed this inquiry to a “policy-oriented” approach with judges “pretending to be congressmen.” With respect, I cannot credit this evidence. I started my law school years thirty years earlier at Yale Law School, which reveled in its reputation for being concerned with “policy,” yet I never once heard a professor suggest that the text of a statute should be ignored in favor of a “policy” interpretation. “Policy” was thought relevant when a statutory provision was unclear, or, in nonstatutory cases, when existing case law provided no clear answer. Of course, even in a statutory case, the policy to be implemented was the policy preferred by Congress, not by judges. I take on the task of refuting Justice Kagan because I believe the “now” in her statement is only one of many myths about textualism, myths often perpetuated by some judges, legal scholars, and politicians, especially when they disagree with a court’s decision. Refuting these myths is particularly relevant to the current controversy within the American Law Institute concerning the effort to craft a Restatement of the Law, Copyright.

Restatements of Statutory Law: The Curious Case of the Restatement of Copyright

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements projects but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century. This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risk undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation, and highlighting the unique legislative process through which the statute was developed.

Restating Copyright Law’s Originality Requirement

In 2015, the American Law Institute (ALI) launched a project to create a Restatement of the Law, Copyright. Concern, objection, and disagreement about the ALI’s Restatement projects is not new, but the Restatement of Copyright project seems to be particularly controversial among industries dependent on copyright protection. The drafting group has now worked through several versions of some proposed sections; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the projects that have crystallized. This Article reviews the 2020 draft Restatement’s presentation of American copyright law’s threshold requirement for protection: that copyright protects only “original works of authorship,” and how that “originality” requirement should be understood in light of the Supreme Court’s 1991 decision in Feist v. Rural Telephone. Copyright’s originality requirement is a challenging subject for a Restatement because what is unquestionably agreed is that black letter law is limited, formulaic, and opaque. Not surprisingly, the Restatement’s handling of this topic hews close to the words of the Supreme Court’s modern pronouncement on the issue, sometimes to the detriment of a richer, potentially more enlightening discussion. The discussion here is based principally on “Tentative Draft No. 1” of the Restatement, released on April 8, 2020,3 but the discussion will also include consideration of the earlier “Council Drafts”4 that led to the 2020 proposal. Part I of the Article briefly describes the controversial beginnings of this Restatement project—and, as of 2021, the continuing animosity of copyright stakeholders to the project. Part II lays out the 2020 draft Restatement’s core provisions on copyright originality, the modest evolution of these provisions since the 2017 draft, and some concerns with what these sections, Comments, and Reporters’ Notes say. In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Part II.A explores the draft Restatement’s presentation of Feist’s “modicum of creativity” requirement, raising some issues both with what the Reporters have said so far and equally with what the draft Restatement seems unwilling to say about minimal creativity. Part II.B discusses the draft Restatement’s presentation of Feist’s “independent creation” requirement; here the concern is that the draft may conflate independent creation with minimal creativity in a way that does not contribute to coherence in copyright law.

Restatement of the Law, Copyright: A Useful Resource for Practitioners and Courts or a Rashomon Exercise?

As the Ninth Circuit succinctly observed, when deciphering copyright law, “[w]e begin, as always, with the text of the statute.” An examination of any aspect of copyright law commences with the text of Title 17 of the United States Code (the “statute”), and then turns to case law for adjudications and interpretations of the relevant statutory text, or as the primary source of law in the gaps in the statute. Everything else is secondary and not, of course, a substitute for the law, whether it is legislative history, Copyright Office (and other government agency) studies, treatises, or other commentary. If copyright law consists predominantly of federal statute, how, if at all, will the American Law Institute (“ALI”) project to prepare a Restatement of the Law of Copyright (the “Restatement”) provide a useful or necessary resource for attorneys and the courts? In the face of the primacy of the enacted statutory text, why undertake a project to recast and rephrase the law? What, if any, use might it yield to practitioners and courts, and equally importantly, will consequential harms result? From the inception of the Restatement project, the creative community has collectively viewed the project with skepticism about its necessity and fears about its purpose and biases, and the resultant impact on the livelihoods of creators. This Response focuses on the practical uses, if any, of the Restatement for attorneys and courts grappling with copyright issues. The Response also examines, from a practitioner’s point of view, the Restatement’s potential to harm the ecosystem of the copyright creative community, and the likelihood that the harm will outweigh any value the Restatement might bring to clarifying the law.

Between Code and Treatise: The Hard Challenge of the Restatement of Copyright

The proposed Restatement of Copyright raises a question that has been obvious to everyone from the very start of the project: How do you restate an area of the law governed by a comprehensive federal statute? Restatements have, to date, focused near-exclusively on common law subjects. The Reporters of other Restatements thus did not operate in the shadow of an authoritative uniform federal statute. Instead, they faced an unruly and “ever-growing mass of decisions in the many different jurisdictions, state and federal, within the United States.” From this mass of decisions, the Reporters derived the “black-letter law” and “restated” the law in a form resembling a code. In doing so, reporters sought to bring order, clarity, and coherence to a body of law that lacked any other means of doing so. But if this act of restating the law in the form of a code is a central feature of a Restatement, then how do you restate an area of law that already has a comprehensive code? What is to be gained by essentially re-codifying the law?