Should We Abolish Copyright in Academic Journal Articles?

scholarSome years ago, when I was on the Marquette Law Review editorial board, my responsibilities included obtaining a rudimentary copyright release from authors whose articles we had agreed to publish.  In fact, I signed the form myself when I published my Note.  If we did not obtain the release, we would not publish the article.  I presume this is still the Review’s policy, although current members can confirm or deny it, and I also suspect that many journals have a similar procedure.  If the “open access” movement continues to gather steam, however, one can wonder how long this and similar practices will continue.    For example, Professor Steven Shavell recently posted a draft, pre-publication article for public comment arguing that we should abolish copyright for all academic writings.

The open access debate goes well beyond the world of academia, and what follows is only a brief summary.  Many open access advocates support both free online access to works as well as the granting of a license that permits copying and redistribution of the work.  They underscore the broad societal benefits that would flow from broad public access to such information.  Opponents of the movement have argued that true open access is impossible because publishers could not then recover the costs of their work, and that all but a few scholarly journals would cease to exist.  The usual response to this criticism is that the journals could simply charge the authors fees to cover their costs in publishing such works (and, in turn, that the fees would likely be paid by the authors’ university employers).  Perhaps this counterargument is less attractive given the current global economic downturn.

I think the fundamental question is the following: what motivates academic authors to write and publish journal articles? 

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Redskins Prevail in Offensive Trademark Case

Washington Redskins logoEarlier today (Nov. 16) the United States Supreme Court denied cert. in the case of Harjo v. Pro-Football, Inc., bringing to a close, at least for the moment, litigation concerning the legality of the Washington NFL team’s registration of its “Redskins” trademark. The decision not to hear the case was announced without comment.

In 1992, Native-American activist Suzan Harjo, on behalf of herself and six others, petitioned the Trademark Trial and Appeal Board (TTAB) to cancel six trademark registrations granted to the Redskins beginning in 1967. (Although team had used the name “Redskins” since 1933, it did not attempt to register the trademark until 1967.)

The gist of Harjo’s argument was that the TTAB had erred in registering the trademark because it violated section 2(b) of the federal Lanham Trademark Act, which prohibits the registration of a mark that “consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The Redskins (who do business as Pro-Football, Inc.) defended on grounds that the trademark was not offensive and that such an interpretation of the Lanham Act unconstitutionally violated the team’s rights under the First and Fifth Amendments to the United States Constitution.

In 1999, seven years after the initial claim, the TTAB ruled in favor of Harjo, finding that the trademarks “may be disparaging of Native Americans to a substantial composite of this group of people,” and “may bring Native Americans into contempt or disrepute.”  Consequently, it scheduled the cancellation of the offending marks.  The ruling was appealed to the United States District Court for the District of Columbia, which in 2003 ruled that the complainants had failed to establish that the marks were in fact disparaging and that in any event their failure to bring the claim in a timely fashion—25 years passed between the first registration and the initial complaint—resulted in it being barred by the equitable doctrine of laches.

On the appeal of that decision, the Court of Appeals for the District of Columbia ruled in 2005 that the laches defense was valid for six of the seven petitioners, but remanded the action to the District Court for a determination whether or not the defense was valid as applied to petitioner Mateo Romero who was only one year old when the mark was first registered in 1967.  It retained jurisdiction over the “disparagement” claim without ruling whether the TTAB or the District Court were correct.

Upon reconsideration the District Court concluded that the laches defense applied to Romero as well, given his understanding of the issues involved prior to reaching the age of majority and his failure to object to the registration until almost eight years after reaching the age of majority.  This conclusion was upheld by the Court of Appeals in May of 2009, and it was this decision that the Supreme Court decided today not to review.

There are apparently plans, however, to re-file the challenge to the registration but this time using Native American challengers who have just reached the age of majority.  The earlier Circuit Court of Appeals decision suggested that such plaintiffs would not be barred by the laches defense.  Such a case will presumably reopen the question of the propriety of the Redskins trademark.

Of course a reprisal of the original TTAB ruling would not prevent the Washington team from continuing to use the name “Redskins.”  It would, however, prevent the team (and the NFL) from excluding others from making use of the name.

A subsequent post will examine the historical background of the team name, Washington Redskins.

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The Obama “Hope” Poster Case — Whoa!

(This is the 8th in a series of posts on Fairey v. Associated Press. See below for other posts in the series.)

I’ve been too busy to blog recently about the Hope poster case, but aside from the AP’s answer to Garcia’s claims of ownership, not much has happened. And frankly, given my schedule, I was hoping it would stay that way for a while.

No such luck. AP just issued a press release on recent developments in the case—and it’s a bombshell. It starts off slow, as though the AP was just tendentiously describing some deposition testimony. But then it gets to this:

Fairey’s counsel has now admitted that Fairey tried to destroy documents that would have revealed which image he actually used. Fairey’s counsel has also admitted that he created fake documents as part of his effort to conceal which photo was the source image, including hard copy printouts of an altered version of the Clooney Photo and fake stencil patterns of the Hope and Progress posters. Most recently, on October 15th, Fairey’s counsel informed The AP that they intended to seek the Court’s permission to withdraw as counsel for Fairey and his related entities.

Whoa!

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