Year-End Letter 2023
November, 2023
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.
Our initial event of 2023 was our first annual Arts Symposium, “The Art of Looking: Ethics in Photography.” The event was hugely popular, playing to a packed house of practitioners, scholars, and artists, who came to hear a panel of distinguished photographers discuss the legal and ethical intricacies involved in documenting real people who may be in intimate situations or experiencing traumatic events. Mickey Osterreicher, Esq., of the National Press Photographers Association, gave an outline of his organization’s Code of Ethics and some common legal issues press photographers face. This was followed by a discussion with documentary photographers Professor Nina Berman of the Columbia Journalism School and photographer Donna Ferrato on the sensitive ethical issues and responsibilities involved in displaying pictures of people who have been victims of war crimes, domestic violence, or sexual assault. Fine art photographers Kay Hickman and Gail Halaban discussed the use of intimate situations as artistic subjects. Creative Director of Aperture Lesley Martin outlined her magazine’s internal code and the legal challenges it has faced in publishing books containing potentially controversial photos while Amy Adler, the Emily Kempin Professor of Law at NYU addressed the First Amendment and other legal issues
faced by photographers and the media.
On March 1st, our Spring IP Speaker series began, with Professor Barton Beebe of NYU Law and Megan Bannigan, a partner at Debevoise & Plimpton, giving students an overview of two trademarks cases that were then pending in front of the Supreme Court. The main case at issue was Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. ___ (2023), which Bannigan and Beebe discussed in detail, outlining questions of First Amendment rights to parody and commercial harm to the Jack Daniel’s brand. The pair also discussed a more technical case involving whether Lanham Act provisions barring trademark infringement apply to foreign conduct (which the Supreme Court unanimously decided in the negative in Abitron Austria GMBH et. al. v. Hetronic International, Inc., in June (600 U.S. __ (2023)).
The series continued on April 4th with a look at the complexities of intellectual property protection of tattoos. Kirkland & Ellis partner Joshua Simmons '10 and Professor Aaron Perzanowski of the University of Michigan focused on recent case law in the area. They discussed Solid Oak Sketches LLC v. 2K Games, Inc. (449 F. Supp. 3d 333 (March 26, 2020)) in which 2K Games and Take-Two Interactive were sued by a tattoo image licensing company on grounds of copyright infringement. Simmons, who was part of the team representing 2K Games and Take-Two Interactive in the suit, presented some of the issues raised by the case, in which a game featuring the images of real NBA players included some players’ tattoos as elements of character design in the game. Professor Perzanowki also discussed the case Brophy v. Belcalis Almanzar (359 F. Supp. 3d 917 (C.D. Cal. 2018)), in which tattoo model Kevin Brophy sued the singer known as Cardi B. over the photo-manipulated use of his tattoo on another model’s back on the cover of a one of the singer’s albums.
The final talk of the Spring Speaker Series featured Professor Jane Ginsburg in concert with Visiting Professor Laura Moscati of the University of Roma I (La Sapienza). Exploring the duration of copyright in historical and comparative perspective, the professors traced copyright terms from Napoleon’s establishment of copyright durations in France with an eye to the encouragement of scientific advancement to present day US. An article based on their presentation will be published in the Revue Internationale du Droit d’Auteur.
April 17th brought the Universitat Oberta de Catalunya Law School dean, Professor Raquel Xalabarder LL.M. '93 to campus to deliver the 35th Annual Manges Lecture. Her talk, titled “Regulating AI: Comparing US and EU Copyright Law,” looked at current technologies in light of the EU’s 2016 Digital Services Act and Digital Open Markets Act and the 2019 Digital Single Market Directive. Xalabarder explained how the various EU countries have implemented the Acts, and how the text and data mining landscape had changed since 2019. She highlighted the rise of generative AI models which, she noted, were not contemplated when these Acts were passed. She compared current and proposed laws in other countries such as the United States and Japan and speculated on whether these laws or proposed EU laws on generative AI would address the complex issues these new technologies bring about. An article based on her lecture will be published later this year in the COLUMBIA JOURNAL OF LAW & THE ARTS.
On June 10th and 11th, 2023, the Kernochan Center co-sponsored a two-day symposium on artificial intelligence and copyright law, held at Tokyo’s Waseda University. The symposium brought scholars, government officials, and industry executives together to discuss the legal challenges raised by content-producing machine-learning algorithms.
The first day of the symposium featured three panels. The first, on the copyright protection of AI-generated work, was moderated by Prof. Ginsburg, and included Register of Copyrights and Director of the US Copyright Office, Shira Perlmutter, as well as representatives of the governments of Hong Kong, India, and Japan. Professor Shyam Balganesh and Prof. Ginsburg both spoke on the second panel, moderated by Waseda University professor Tatsuhiro Ueno, which discussed copyright infringement by AI. The third panel, moderated by Prof. Balganesh, covered stakeholder views and experience, and included the perspectives of executives from Google, Microsoft, and Tencent, as well as artist Ken Akamatsu, creator of the Mangas Love Hina and A.I. Love You.
The second day of the conference was an academic roundtable, with short topic talks from speakers from Google, Singapore Management University, Kobe University, the University of Aberdeen Law School, and Yonsei Law School. The discussion included other invited academics, including Kernochan Center Executive Director Pippa Loengard, as well as Professors Balganesh and Ginsburg. Columbia and Waseda have agreed to host an annual conference in order to foster a stronger understanding of pan-Pacific and American copyright law. The topic will not always be focused on artificial intelligence, although the 2024 conference, to be held early next winter, will again center on AI.
The Kernochan Center’s fall events brought many distinguished speakers to campus. Our annual fall symposium focused on the derivative works right, especially timely in the wake of the Supreme Court’s decision in Andy Warhol Foundation for the Visual Arts v. Goldsmith et. al. (598 U.S. __ (2023)). Our first panel focused on how creative communities exploit the right. Emphasizing the importance of the right, Aimee Wolfson, Executive Vice President, Intellectual Property at Sony Pictures Entertainment, shared a slide showing that all of the top 10 highest grossing movies in 2022 were based on derivative works. Terry Hart, the General Counsel of the Association of American Publishers, discussed how the Warhol decision will impact the publishing industry, and Saint John’s Law School professor Eva Subotnik '03 noted how photographers utilize the right while attorney Jacqueline Charlesworth explained that the music industry has devised a licensing infrastructure for the creation of derivative works. This infrastructure renders some of the issues raised in the Warhol case moot as to the music industry. The second panel featured a lively discussion between law professors Pam Samuelson of Berkeley Law, Howard Law’s Lateef Mtima and Shyam Balganesh who offered differing analyses of the importance of the Warhol decision. Our final panel of the day saw judges Pierre N. Leval (2d Circuit) and Margaret McKeown (9th Circuit) discussing the Supreme Court’s majority and dissenting Opinions’ analyses of precedent, focusing on their interpretations of Campbell v. Acuff Rose (510 U.S. 569 (1994)) and Google v. Oracle (141 S.Ct. 1183 (2021)). The judges agreed that Google v. Oracle should be cabined to the fair use of functional software and that Warhol has given clearer guidelines on how courts should analyze transformative use.
Visiting Professor Ofer Tur-Sinai LL.M. '99, who is an Associate Professor at Ono Academic College in Israel, and who moderated the second panel at the Symposium, gave a lunch talk on intellectual property and the Right to Repair, on the heels of the Apple Corporation’s choice to reverse its position on allowing individuals to seek non-Apple repair of its devices. The Alumni in Intellectual Property event brought current law students the benefit of the insights of four recent alumni, Michelle Choe, '11, Senior Counsel, Apple Media Services; Shanti Sadtler Conway, '11, Partner, Kirkland & Ellis LLP; Collin Peng-Sue, '08, Director & Senior Counsel, IP, Netflix, and Brandon Zamudio, '20, Associate, Loeb & Loeb LLP. Each spoke about their their time at Columbia shaped their careers and how Kernochan faculty and staff had helped them along the way.
Jane Ginsburg spent Spring Semester 2023 on a sabbatical that took her to the National University of Singapore, as the Kwa Geok Choo Distinguished Visitor, to teach International Copyright Law and deliver a public lecture on fair use. From Singapore, she went to Vietnam, giving multiple lectures on a variety of topics, including copyright and artificial intelligence. Prof. Ginsburg gave the General Report on copyright infringement and AI at the annual ALAI (Association LIttéraire et Artistique Internationale) conference in Paris. As the inaugural Sir Percy Spender Visiting Fellow, University of Sydney in September, she participated in panels and lectured on archival research in the Vatican Secret Archives; Fair Use after the Supreme Court's decision in Andy Warhol Foundation v. Goldsmith; and copyright and AI. In November, she participated in a panel on AI and Copyright hosted by BLACA, the British ALAI group.
Shyam Balganesh delivered the Annual Year in Review Lecture at the USC IP Institute in March and will be delivering the Brace Memorial Lecture of the Copyright Society of the USA on December 4. In July, he co-organized a conference Intellectual Property and Private Law at the University of Cambridge, U.K. He also published multiple articles on copyright law, including Misreading Campbell: Lessons for Warhol (72 DUKE LAW JOURNAL Online 113-145 (2023)), along with Peter Menell, which showed how courts had misconstrued the logic and reasoning of Campbell in developing the transformative use idea. He also published Learned Hand’s Copyright Law, 70 J. COPYRIGHT SOC’Y U.S.A. 403 (2023), which examines Learned Hand’s role in the development of US copyright law and is finishing up work on his book manuscript, which tells the intellectual history of U.S. copyright law from the post-Civil War era to the present.
Pippa Loengard continued her work with the New York City Bar Association’s Copyright and Art Law Committees and the Intellectual Property Law Section (IPL) of the ABA. She finished her term as Chair of the Copyright Division of the IPL and now sits on the group’s governing Council. She authored an article, “Fair Use in Context” which discusses some of the nuances of the Warhol case and will be published in an upcoming issue of the IPL’s journal. She spoke on Hot Topics in Art Law at the City Bar and for the Center for Art Law and discussed the ramifications of the Warhol decision on multiple local and national panels and The Art Law Podcast.
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