Year-End Letter 2024
November 21, 2024
Dear Friends of the Kernochan Center for Law, Media and the Arts,
Thank you for your continued and generous support of the Kernochan Center. We are excited to share developments at the Center, the work we are doing, and the extensive programming we have brought to Columbia in the past year. We have also started sharing our events on Instagram @kernochancenter and on LinkedIn. Please follow us if you would like to stay up to date on everything we are doing.
On January 16, the Center welcomed new staff member Caitlin McGrail. McGrail will spend two years as a Kernochan Center Fellow, working on her own projects and assisting the Center in all of its work. McGrail is an alumna of Wellesley College and graduated magna cum laude from the Villanova University Charles Widger School of Law in 2022. Prior to joining the Center, McGrail was an associate at Kirkland & Ellis LLP.
Our first event of 2024 was our Art Law symposium, “Protecting Cultural Property: The 1954 Hague Convention at 70,” Over 250 practitioners, scholars, and students gathered in person or online to hear a retrospective on the Hague Convention’s impact on cultural heritage in armed conflicts. In her keynote address, Patty Gerstenblith, Professor of Law at DePaul University, provided an overview of the history and legal framework for protection of cultural heritage during armed conflicts.
Center Executive Director Pippa Loengard moderated the second panel which provided updates on the current state of protecting cultural property during wars and natural disasters. Panelists featured Professor Solange Ashby (UCLA); Professor Ömür Harmanşah (University of Illinois, Chicago); Roksolana Makar from the Ukrainian Heritage Monitoring Lab; Fahim Rahimi, former Director of the Afghanistan National Museum; Samuel Franco Arce, of Guatemala’s Cultural Rescue Center; and Corine Wegener, Director of the Smithsonian Cultural Rescue Initiative.
Cathy Kaplan ’77, adjunct professor at Columbia Law School, moderated the third panel on the market response to looting and theft. Jane Levine, also an adjunct professor at Columbia Law School and managing partner of The ArtRisk Group, discussed how to develop an effective compliance program. Sotheby’s Lucian Simmons described his experiences in provenance and restitution research, while White & Case’s Brigit Kurtz, and Nicholas O’Donnell of Sullivan & Worcester LLP, provided perspectives from their experiences in provenance and restitution research, risk assessment, and offered best practices.
Professor Gerstenblith moderated the final panel on the intersection of cultural heritage and human rights. Panelists Professor Federico Lenzerini (University of Siena) and the University of Pennsylvania’s Professor Brian I. Daniels, commented on the relationship between cultural heritage and human rights and the growing understanding of the “intangible” aspect of cultural heritage, looking at the implications for cultural heritage’s transition from “people-based approaches” to “property-based approaches.”
The video of this symposium is available on our website, https://kernochan.law.columbia.edu, and papers based on the event will be published in an upcoming volume of The Columbia Journal of Law & the Arts.
The Spring IP Speaker series began on February 27 with George Wang, a staff attorney at the Knight First Amendment Institute at Columbia. Wang spoke to students about the recent Supreme Court cases concerning social media and the First Amendment, as well as the litigation status of TikTok bans across the country. Wang argued that the Texas and Florida laws do violate the First Amendment, but that not all regulation of social media platforms is per se unconstitutional. Wang concluded by giving an update on litigation concerning the TikTok bans.
On March 19, Matthias Leistner, Professor of Private Law and Intellectual Property Law at Ludwig Maximilian University (LMU) in Munich, gave a lecture on proposed European laws surrounding generative AI copyright infringement. Professor Leistner noted that he does not believe copyright protection is warranted for “outputs” from generative AI models, nor is a new right needed to protect outputs. Professor Leistner provided an overview of the European Union’s approach to AI and copyright infringement by examining how current EU copyright law, EU regulation, and the AI Act of 2024 treat the infringement question for both training “inputs” and “outputs” before probing potential EU legislative approaches.
The Spring IP Speaker series continued on March 25, when Schindler Cohen & Hochman LLP partners Katherine Wilson-Milne and Steven Schindler, discussed the state of generative AI and copyright. Wilson-Milne discussed the history of the human authorship requirement for copyrightability and the Copyright Office’s current guidance on the copyrightability of purely generative AI works and registering a work with both human and AI authorship. Schindler spoke on current lawsuits alleging that AI companies infringed copyrighted works in training and using their models, particularly Getty Images (US), Inc. v. Stability AI, Ltd., No. 23-135 (D. Del. filed Feb. 3, 2023) and Anderson v. Stability AI, No. 23-201 (N.D. Cal. filed Jan. 13, 2023). He detailed the various claims and defenses at issue in these cases including direct infringement, vicarious infringement, violation of the Digital Millennium Copyright Act, common law rights of publicity, unfair competition, and fair use.
Professor Pablo Ignacio Fernandez Carballo Calero, Full Professor of Commercial Law at University of Vigo (Spain) and Academic Counsel at Hoyng Rokh Monegier Madrid, presented the final lecture of the Spring IP Speaker series on April 2. Professor Carballo Calero examined copyright protection for AI generated works in Europe. He began by discussing the history of artificial intelligence. He compared copyrightability prerequisites from various countries, including the US, Spain, and Australia. He also contrasted the Copyright Office's analysis of the human authorship requirement in AI works with the current approach in Chinese courts.
Dale Cendali, Partner at Kirkland & Ellis LLP gave the 36th Annual Horace S. Manges Lecture on March 25. Cendali’s lecture, entitled “Litigating Fair Use,” maintained that not only Congress can change fair use law. In examining the history of fair use, she commented that the doctrine has changed over time through the input of judges, law professors, and practitioners, Cendali noted the persuasive power of amici briefs to flesh out additional arguments, influence the court’s opinion, and offer solutions. Next, Cendali noted the importance of litigators’ investigation into the facts, particularly in fair use cases where context is critical. She said that litigators can also assist clients by taking proactive steps, such as minimizing damages. She also cautioned against accepting the opposing side’s facts without verification, describing how deeper investigation has revealed falsified evidence in cases she has litigated. Cendali also noted the importance of a litigator’s persuasive ability, stating that she always tried to craft an effective “theme” for the case which can be repeated throughout arguments. Cendali concluded by discussing the future of fair use adjudication, including the potential rise of jury trials, new interpretations of the second fair use factor, and the impact of artificial intelligence. An article based on her lecture will be published in an upcoming volume of The Columbia Journal of Law & the Arts.
On September 27, the Kernochan Center hosted its annual symposium: “The Past, Present and Future of Copyright Licensing.” The symposium featured industry experts, government and judicial representatives, academics, and lawyers from creative industries discussing how current licensing models might be adapted to accommodate new technologies. In his opening remarks, Center Faculty Co-Director Shyam Balganesh expressed the Center’s interest in gaining a thorough understanding of current licensing models in various creative industries in order to develop hypotheses about which licensing models are most appropriate for licensing regimes for artificial intelligence models.
The first of four panels discussed the publishing industry and was moderated by Center Faculty Co-Director Jane Ginsburg. Anita Huss-Ekerhult, Secretary General and CEO of IFFRO (the International Federation of Reproduction Rights Organisations), described IFRRO’s approach to ensuring artificial intelligence systems respect the rights of creators. Roy Kaufman ’91, Managing Director, Business Development and Government Relations, Copyright Clearance Center (CCC), explained how the CCC has already incorporated AI rights into their collective licenses. Matthew Stratton, Deputy General Counsel, Association of American Publishers, discussed tech companies’ arguments against licensing and why private licensing for AI is likely the most appropriate avenue for the publishing industry. Finally, Regan Smith, Senior Vice President and General Counsel of the News/Media Alliance, explored various licensing mechanisms in use today and lessons learned to evaluate such regimes’ suitability for AI licensing.
The second panel focused on the image and motion picture industry and was moderated by Caitlin McGrail. Panelists Ron Wheeler, Head of Business and Legal Affairs, Motion Picture Licensing Corporation; Benjamin Marks, Head of Intellectual Property and Media Practice at Weil, Gotshal & Manges LLP; and Nancy Wolff, of Cowan, DeBaets, Abrahams & Sheppard LLP, discussed the history of licensing in the image and motion picture industries. The panelists shared the impact of AI on these industries, before detailing how licensing can be a solution and indeed, already is, as licensing deals between AI companies and image stock houses, such as Shutterstock, make headlines. The panelists also discussed the impact of the ongoing infringement litigation on licensing.
In the third panel, moderated by Professor Balganesh, the focus was on the music industry. Elliott Peters ’95, General Counsel for Empire Records, discussed the history of the music industry and its response to “disruptive technologies” in the past. Lidia Kim, VP, Business & Legal Affairs, Concord Music Publishing, provided an overview of licensing from the music publishing perspective, including the role of performing rights organizations. Judge Steve Ruwe of the Copyright Royalty Board (CRB), presented on the CRB’s adjudication of statutory licenses, particularly in their rate and distribution proceedings while Joe Keeley, former General Counsel to the Senate’s Judiciary Committee who now has his own firm, shared his role in developing the Music Modernization Act of 2018, and analyzed the likely effectiveness of such an approach for AI licensing.
Professor Balganesh also moderated the final panel on antitrust concerns in licensing. Anu Sawkar, Special Counsel for Intellectual Property, Federal Trade Commission, traced the history of antitrust action in the music licensing industry and antitrust enforcement laws today. Professor Johan Axhamn, Senior lecturer, Department of Business Law, Researcher, Lund [Sweden] University Centre for Business Law, provided an overview of extended collective licensing in Europe, including the European Union Directive on Collective Rights Management. Another CRB Judge, David Strickler discussed how economic/price regulation can also serve an antitrust purpose. Finally, Columbia Professor Tim Wu discussed how intellectual property licensing is relevant as an antitrust remedy both historically and potentially in present disputes.
A recording of the Symposium is available on the Center’s website. The Columbia Journal of Law & the Arts will publish its annual symposium issue featuring articles from the symposium’s panelists.
The Kernochan Center offered a robust Fall Speaker Series. On October 10, Rudy Carmenaty ’90, Kernochan Center board member and Deputy Commissioner of the Nassau County Department of Social Services, kicked off the Fall Speaker Series with a lecture on Jackie Robinson. He traced the story of Jackie Robinson’s life and how lawyers played a vital role as drafters of the contracts that integrated Major League Baseball.
On October 15, 2024, Colin Golvan, an Australian barrister and author of Protecting Indigenous Art, joined Jane Anderson, Associate Professor of Anthropology and Museum Studies at New York University. Golvan addressed the evolution of Indigenous art protections in Australia, while Professor Anderson noted the differences between the United States’ and Australia’s treatment of Indigenous art, both legally and culturally. She noted that current US intellectual property law does not provide appropriate protections for indigenous artists, and as such, contracts play a key role in preserving their rights in their work.
On November 19, the Center hosted the final event in the Fall Speaker Series, a Meet the Practitioner lunch with Olena Ripnick-O’Farrell ’14, Associate General Counsel, IP Product at Meta. Ripnick-O’Farrell discussed her career path and gave students advice on how to find positions that align with their values. She also shared insights into her role at Meta.
On November 20, the Center hosted its annual Alumni in IP and Related Industries panel featuring Rhea Gordon ’05; General Counsel at the American Museum of Natural History, Stephany Kim ’23; Associate at Kirkland & Ellis LLP, Claire Leonard ’12; Senior Counsel at Penguin Random House, and David Manella ’18; Associate at Loeb & Loeb LLP. Each spoke about their areas of practice and gave students tips on finding a job that suits their interests and career goals.
The Kernochan Center will co-host the Second Annual US-Asia Comparative Copyright Law Symposium alongside Waseda University School of Law and Hong Kong University School of Law. The symposium will be held in Tokyo at Waseda University on December 14 and build off last year’s symposium through continued examination of the intersection of copyright law and AI. Professor Balganesh and Professor Ginsburg will moderate panels at the symposium.
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Jane Ginsburg was recently inducted into the Italian Accademia Nazionale dei Lincei as a Foreign Fellow; the Academy is the oldest learned society in the world: Galileo was one of its founders. She is the first American legal scholar to be inducted since Guido Calabresi in 1993 and Duncan Kennedy in 2000. In 2024 she published the second edition of the one-volume manual Copyright: Concepts & Insights (Foundation Press) and the 10th edition of Copyright: Cases and Materials, with Prof. R.A. Gorman and Prof. R.A. Reese (Foundation Press, 10th edition 2024). She has been delivering lectures and publishing articles about AI and copyright, including AI Outputs “in the style of . . .” in Josefien Vanherpe, ed., Révérences to Marie-Christine Janssens (2024); AI Input data and fair use: A view from the U.S., (forthcoming, Auteurs et Médias 2024); and Fair Use in the US Redux: Reformed or Still Deformed? 2024 Singapore Journal of Legal Studies 1,https://law.nus.edu.sg/sjls/wp-content/uploads/sites/14/2024/05/firstview-march24-JaneGinsburg.pdf; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4883378.
Shyam Balganesh delivered the 2023 Brace Memorial Lecture of the Copyright Society of the USA on December 4, titled The Judicial Method in Copyright, which will also be published in the Journal of the Copyright Society later this year. He also delivered the Annual Year in Review Lecture at the USC IP Institute in March 2024. In 2024, he published Going “Beyond” Mere Transformation: Warhol and Reconciliation of the Derivative Work Right and Fair Use, with Professor Peter Menell, in 47 Journal of Law & the Arts 413 (2024). In December 2024, he will be a Visiting Scholar at the Waseda University in Tokyo, conducting research on AI and copyright issues, and organizing the Second Annual Comparative U.S.-Asian Copyright Roundtable, an annual gathering of judges and lawmakers from the U.S. and different jurisdictions in Asia.
Pippa Loengard represented the Center at two listening sessions on regulating AI conducted by the US Patent and Trademark Office. She was a commentator or panelist at a variety of meetings and conferences including the New York City Bar’s IP Institute, the Art Law Works-In-Progress Colloquium held at Ohio State University, and the “Culture Summit On the Road” conference. She continued her work with the ABA as a member of the IP Law Section’s Council and as the new Chair of the Copyright Reform Task Force. In addition, she spoke at the IPL’s Annual Meeting this Spring, and the Entertainment and Sports Law Forum’s November conference.
Caitlin McGrail submitted comments to the Copyright Office’s NPRM regarding Group Registration for Two-Dimensional Artwork, serves on the American Bar Association’s Copyright Reform Task Force, and attended the Hudson Institute’s AI and Intellectual Property Rights Roundtable.
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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 (2020 or later), $100 for graduates of 2015-2019, and more for graduates from earlier years. The Kernochan Center relies on your generosity to support our work. Your contribution is fully tax-deductible. Enclosed you will find a reply card and envelope. Please note that due to building closures, donations received by mail after December 19, 2024 will be processed after the new year.
Happy holidays and all the best for a wonderful 2025.
Jane C. Ginsburg
Shyamkrishna Balganesh
Pippa S. Loengard