Year-End Letter 2022

November, 2022

Dear Friends of the Kernochan Center for Law, Media and the Arts,                 

Once again we write to thank you for your continued and generous support of the Kernochan Center, and to let you know about developments at the Center, the work we are doing and the extensive programming we have brought to Columbia in the past year.  

It is with equal measures of appreciation and regret that we announce that in June, Executive Director June Besek retired.  For over 20 years, June charted the course of the Center, making it one of the premier academic institutions for copyright policy studies.  Her unparalleled knowledge of copyright law and of the “creative industries” earned the admiration of professionals and government officials in the US and abroad, who over the years have solicited the Center’s input on a variety of domestic and international copyright issues.  Under June’s guidance, the Center filed numerous responses to Copyright Office Notices of Inquiry, and participated in that Office’s Roundtables and submitted Congressional testimony.  June’s Columbia Law School seminars in “Artists, Authors and the Law,” and in “Current Issues in Copyright” have attracted scores of students in addition to those she has supervised on Center research projects or whose journal notes she has advised.

June has served on the Board of Advisors of the Columbia Journal of Law & the Arts and on the Editorial Board of the Journal of the Copyright Society of the USA, as well as a Trustee of the Copyright Society and of Volunteer Lawyers for the Arts.  She chaired the ABA Section on Intellectual Property, and filled the role of its liaison to the American Law Institute’s Restatement of Copyright.  Before she came to the Kernochan Center, June was IP counsel for Reuters, and a partner at Cowan, Liebowitz and Latman.

June’s wise counsel and profound expertise at the Center’s helm will be sorely missed.  We hope to continue the work she so admirably undertook.

The Kernochan Center's Spring IP Speaker Series began on February 1st, with speakers Jonathan Band and Danielle Coffey, who spoke on press publishers’ rights.  Coffey, the Executive Vice President and General Counsel for the News Media Alliance, began by outlining the difficult financial straits in which news publishers currently find themselves, since major platforms leave them little bargaining power.  She suggested one remedy might be the passage of the Journalism and Competition Protection Act (JCPA), which would allow news providers to bargain together as a unit for a share of advertising revenue.  Band, of Jonathan Band PLLC, countered with possible alternate explanations for the financial difficulties of news outlets and the decline of newsrooms, including buyouts by hedge funds, and the general loss of revenue from classified sections.

The series continued February 8 with a discussion of § 230 of the Communications Decency Act.  Lawyer Cathy Gellis took the position that, despite its possible shortcomings, § 230 was serving its purpose, ensuring that the public can find “the most good and the least bad” content on the internet while protecting platforms against expensive litigation.  She noted her concern that, without § 230, platforms will self-censor and, concerned about potential litigation, err on the side of over-censoring their sites.  Professor Mary Anne Franks of the University of Miami School of Law argued that the internet needed heightened policing.  She noted that internet service providers (ISPs) are held to a lower standard than the general public, saying that if someone knows of harassment in the workplace, they have a duty to report it, but ISPs are under no obligation to do anything about harassment on the websites they host. 

On February 15, Pascale Gelly (LL.M. ’92), the Group Data Protection Officer of Schneider Electric, and Ari Waldman, Professor of Law and Computer Science at Northeastern University School of Law spoke on the subject of personal data privacy.  Professor Waldman argued that the protection of private data is a human right, and that the current set of laws regarding personal data privacy, in both the US and the UK, were written in large part by the very entities from whom individuals need protection.  Responsibility for the maintenance of privacy, Waldman proposed, is not individual but collective, and individual notice-and-consent forms have no meaningful value.  Gelly suggested that Waldman was pessimistic.  Speaking as a privacy professional, she said she had seen progress over the years.  In her opinion, the General Data Privacy Regulation (GDPR), the EU regulation on which she focused her talk, points the way to a robust privacy protection framework.

In the next talk, Durie Tangri’s Joseph Gratz and Steven Tepp, President of Sentinel Worldwide, discussed the Supreme Court’s decision in Google v. Oracle (141 S. Ct. 1183 (2021)).  Gratz, who represented Google in the suit, highlighted the Court’s balancing test of Oracle’s copyright in the code with the “greater good” that came about because of Google’s use of the computer language.  Tepp argued that, since Oracle had offered a license to Google and Google had instead opted to copy the code rather than pay a license fee, the Court should have weighed Google’s bad faith in Oracle’s favor.    Both speakers agreed that it was unclear whether the expansive interpretation of fair use in the Court’s decision would be limited to computer code, especially in light of the Court’s decision to grant certiorari in another fair use case (Andy Warhol Found. for the Visual Arts v. Goldsmith (11 F.4th 26 (as amended August 24, 2021); certiorari granted March 28, 2022) in its 2022-2023 term. 

The next talk was on copyright issues surrounding the embedding of photos.  Brian Carver, Google’s copyright counsel, said that search engines transform original photographs (such as by shrinking them into thumbnail-sized images) in order to inform the public and displays the images solely in order to guide the public to the image’s location.  Citing the 9th Circuit’s decision in Perfect 10 v. Amazon (508 F.3d 1146 (9th Cir. 2007)), he argued this was a fair use of the images posted.  Nancy Wolff of Cowan DeBaets Abrahams and Sheppard argued that seamlessly incorporating content located on another server eviscerated the exclusive right of display in online environments, and pointed to decisions in the SDNY rejecting the 9th Circuit’s “server rule.”

            Dale Cendali of Kirkland & Ellis and Robert Clarida ’93 of Reitler, Kailas & Rosenblatt gave an update on fair use litigation on March 29.  They focused their talk on two cases.  Clarida covered Grant v. Trump (563 F.Supp.3d 278 (2021))(where he noted that his firm represents Eddie Grant who wrote, recorded and produced the song at issue, “Electric Avenue”), a case in which a musician is suing the former president for the unauthorized use of the musician’s song in a presidential campaign ad.  Cendali discussed the issues presented by Andy Warhol Found. v. Goldsmith.

            The final talk of the season was a discussion of recent developments in the right of publicity.  Kirkland & Ellis partner Joshua Simmons ’10 and Penn Carey School of Law’s Jennifer Rothman discussed the differences between the right of privacy and the right of publicity and the interactions with copyright law.   Simmons raised several cases where an individual’s likeness was used for commercial purposes but courts found that the image had been sufficiently transformed as to render the work original.  Rothman also brought up cases highlighting the potential conflict between the rights of publicity and privacy and the First Amendment.

Judge Margaret McKeown of the 9th Circuit Court of Appeals delivered the 34th Annual Manges Lecture on Monday, April 4.  Her lecture, entitled “Art, Music and Mashups,” discussed the importance of using copyright to protect creative communities, focusing on the visual arts and music.   She highlighted the complexities that arise as artificial intelligence (AI) plays an increasing role in the creation of visual works, and questioned whether a scenario exists where an AI-generated work contains enough human involvement to be copyrightable.  The Judge also discussed the tensions between copyrightability and material in the public domain in the music industry, and the Circuit split that exists regarding the legality of music sampling.  Judge McKeown’s lecture will be published in an upcoming issue of The Columbia Journal of Law & the Arts.

In June, Columbia Law School welcomed Dr. Mala Chatterjee to the faculty. Chatterjee is a philosopher and legal scholar interested in the theories surrounding intellectual property law.  In addition to the numerous articles published in the nation's leading law journals, she is currently expanding her doctoral thesis, “The Fruits of Authorship: A Theory of Copyright,” into a book.  Chatterjee is currently teaching a foundational torts section and, this spring, will teach a seminar in intellectual property theory.  She can be reached at [email protected].

We welcomed four accomplished alumni back to campus on October 13 for our first in-person Alumni in IP and Entertainment panel since 2019.  Joel Feigenbaum ’17, Associate Counsel, Digital Legal Affairs, Warner Music Group, stressed the importance of networking, which he started doing as a student.  This, combined with not hesitating to take chances when they came along allowed him to reach his career goal.    His advice to current students?  “Be kind.  Be prepared.  Be helpful.”  Kate Saba ’17, a senior litigation associate at Debevoise & Plimpton spoke of the internships she did while getting her JD and her clerkship experience.  Hunter Vanaria ’16, Counsel, New Media, Marvel Entertainment urged students to keep an eye out for developing fields in the industry of interest to them.  Becoming an expert in the digital media space at the firm for which he worked after graduation allowed him to move in-house after three years in private practice, and then to his current “dream” job last year.  The last panelist to speak was Elizabeth Wang ’90, Principal, Law Offices of Elizabeth Wang, who spoke of her career from junior associate at a large firm to in-house counsel to founding her own practice.  She emphasized that students should always remember that they are in charge of their own career and that making connections in your field, following your passion and knowing your worth will lead to success. 

The Center’s annual symposium focused on whether press publishers need extra protections due to the financial losses associated with the rise of news aggregators (among other factors) and, if so, what those protections should encompass.  The first panel of the day featured Lisa George, Associate Professor of Economics at Hunter College; Latham & Watkins’ Colin Stretch (who was formerly General Counsel of Facebook); and Emily Bell, Director of the Tow Center for Digital Journalism at Columbia Journalism School. George discussed the economics of the news industry, while Bell and Stretch debated the causes of the lost revenue.  The second panel focused on current EU and US protections currently in place.  The Sorbonne’s Edouard Treppoz explained the measures contained in Article 15 of the EU’s Digital Single Market Directive (2019), while Andrew Foglia of the United States Copyright Office discussed the Office’s June, 2022 report on and recommendations for press publishing in America.  Professor Neil Netanel of UCLA School of Law argued that increased IP rights may not provide the increased revenue for which publishers are searching. The final panel of the morning featured Andrea Carson, Associate Professor at Melbourne’s La Trobe University; Ariel Katz, Associate Professor at the University of Toronto Faculty of Law; Dana Scherer, Telecommunications Policy Specialist at the Congressional Research Office; and Hal Singer, Managing Director, Econ One.  They discussed whether it was appropriate to use methods other than copyright to bolster the news industry and, if so, whether those methods could be successful.  Video of the entire event can be found on the Kernochan Center’s website.  Articles by the participants will be featured in a spring edition of The Columbia Journal of Law & the Arts.

The Center continued to be an active participant in formulating copyright policy. Faculty Directors Shyam Balganesh and Jane Ginsburg continue to serve as Advisers to the ALI’s project on a Restatement of Copyright.  They have attended the organization’s meetings, and they have submitted multiple comments regarding the objectives, substance and format of the project. These comments are available on the Center’s website.  Executive Director Philippa Loengard worked with other academics on comments to the Copyright Office’s Notice of Proposed Rulemaking on student representation of parties before the new Copyright Claims Board.

Jane Ginsburg and Prof. Sam Ricketson (University of Melbourne) published the Third Edition of the leading international copyright treatise, International Copyright and Neighboring Rights: The Berne Convention and Beyond (Oxford 2022).  She also published several other articles and chapters on international and comparative copyright law and on copyright reform.  Together with Profs. Shyam Balganesh and Peter Menell (Berkeley), she submitted an amicus brief in support of Respondent in Andy Warhol Found. v. Goldsmith.

Shyam Balganesh published multiple articles on copyright law, including The Institutionalist Turn in Copyright Law, (2021 Sup. Ct. Rev. 417), which examines the Roberts Court’s copyright jurisprudence, and Proving Copying, (64 Wm. & Mary L. Rev. (forthcoming 2022)) along with Professor Peter Menell, which defends courts’ use of the inverse ratio rule to prove factual copying in an infringement action.

Pippa Loengard was named the Center’s Executive Director in June.  She continues to serve as chair of the Copyright Division of the American Bar Association’s Intellectual Property Section and sits on the Copyright and Art Law Committees of the New York City Bar Association (NYCBA).  She and Nicholas O’Donnell of Sullivan & Worcester LLP filed an amicus brief in Andy Warhol Found. v. Goldsmith in support of the Respondent.  She has spoken at many events and conferences including the New York County Lawyers Association’s Art Law Days; the NYCBA; Howard University Law School’s MOSAIC conference; the Copyright Society of the USA; and Fordham Law School’s IPLJ Symposium.

We hope you will continue to support the Center and Columbia’s program in law, media and the arts.  Your donations will help defray the costs of the Center’s operations and programs. We are always grateful for any donation, but please consider a gift of $75 for recent graduates (2018 or later), $100 for graduates of 2013-2017, and more for graduates from earlier years. The Kernochan Center relies on your generosity to support our work. Your contribution is fully tax-deductible. 

To make an online contribution to the Center, follow these instructions:

1. Visit the Columbia Law School Gifts page.
2. From the drop-down list of Funds, select "Other - Law School."
3. Select the amount of the donation.
4. In the "Allocation Instructions" box, list the Kernochan Center for Law, Media and the Arts.

To make your gift, you may also send a check to the Center at:

435 W. 116th Street, Box A-17
New York, NY 10027

Thank you for thinking of the Kernochan Center today!


            Happy holidays and all the best for a wonderful 2023.


Jane C. Ginsburg

Shyamkrishna Balganesh

Pippa S. Loengard