Thursday, May 24, 2012

Overview of State IP Law with Resources

This is not legal advice. Leave audio feedback at (512) 686-6329.

One of the things I did not mention in the short overview of VARA yesterday, was VARA-like laws in states. Many of the resources you'll find below deal with the broader issue of how state law generally falls within the US system, but there is no time for that today*. It is worth noting that California, Connecticut, Massachusetts, Pennsylvania, Louisiana, Maine, New Jersey, New York, Rhode Island and New Mexico have all passed some sort of statutory moral rights. In other states, any sort of moral rights issues are covered by the common law.

Today's post is short too, because I started watching MIT's 4-part series on copyright in preparation for our show on Saturday.  Essentially, only the first installment where the course discuss state protection. It is very good. Check it out, especially if you are an auditory learner. The professor does use the board some, so there are some visual aspects, but it is a classroom, not generally visually stimulating environment.

Right of Publicity

All of the various Creative Commons licenses discuss the right of publicity. The most common license for music, CC BY-NC-SA, says in relevant part, on the "human readable" version:

Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public. If a CC-licensed work includes the voice or image of anyone other than the licensor, a user of the work may need to get permission from those individuals before using the work for commercial purposes.

This may be the topic of a full post later in the summer (or a full podcast at some point), but I want to mention it now because for musicians it is probably the most important state IP law.

Trade Secrets

Were this a post I was doing for, I would be focusing on this aspect of state law. This probably plays no roll for musicians, though if there were unpublished works which were stolen, it might apply. Unpublished works are protected by copyright, so that's the usual path people go. Perhaps an artist has made a pledge to never sue someone for copyright infringement, but the musician is upset that material got leaked before it was mastered. Trade secrets might apply. That's all I really want to say. More resources below. My guess is this is something that has been litigated and I just don't know about it. Remember, this is not legal advice.

*There are entire organizations dedicated to the topic of state independence, such as the Federalist Society and the 10th Amendment Center (both of which have audiocasts). I do not mean to endorse either organization, and in fact, I do often disagree with both of them, but the audiocasts the organizations provide are valuable. You need to understand (whichever side of the argument you are on) that these organizations have agendas to push.


Here's a fun one: A Short Tour of Robot Case Law

Intellectual Property: Private Rights, The Public Interest, and the Regulation of Creative Activity. Second Edition. Chapter Six: State Laws Governing Intellectual Property. Ghosh, Gruner, Kesan, Reis. (2011)

Intellectual Property & the Patchwork Right of Publicity Laws (NOTE: I could not find audio or transcripts for this. If you know where either of those can be found, please post in the comments!)


Mark A. Lemley. What the Right of Publicity Can Learn From Trademark Law, 58 Stanford Law Review 1161 (2006).


Other Podcasts

Suffolk Law - Kim Kardashian and the Right of Publicity
Suffolk Law - Lindsay Lohan v. ETrade Dispute