Entitled to Copyright Erasure?: A Fair Use Search for a Derived Yet Transformational WorkILN IP Insider April 7, 2021
James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “Entitled to Copyright Erasure?: A Fair Use Search for a Derived Yet Transformational Work.”
Following is an excerpt:
For those of you who may read my past ILN posts, you will not be surprised that I subscribe to the Tucker Max approach: Make the title attention-grabbing, memorable and searchable, informative, easy and not embarrassing to say, and short. OK, maybe not the last prong so much, but I nonetheless have one regular reader who has noted that he thinks that I have “a real knack for catchy titles!” I will not debate the merits of that opinion right now.
Instead, I will just note that I generally let the title stand on its own, and do not deconstruct or explain it. But here, I am actually going to explain expressly a bit about the title, and what I meant it to convey. There is a lot packed into the possibilities of this title and each issue may not be as apparent as it is in some of my earlier titles, such as those with obvious puns (like “…this is my life”: Corporate Biography, Moral Rights & Being Slow To Berne” or Maybe Axanar Could Klingon To Its Fair Use Defense In A Parallel Copyright Universe) or specific revelations of focus (like “…as best as your interests don’t conflict with mine”: Lawyers Fighting Over Intellectual Property)… This title –“Entitled To Copyright Erasure?” — could have several meanings. It could signal the notion that copyrights should not exist, and that the ability to copyright anything should be erased. Alternatively, it could suggest that adopting certain rules could eliminate the practical ability to protect certain compositions from creative reuse even if there is no express desire to create a fully open-source world. But it could also encapsulate the question actually examined here, which is: “Can ‘erasure poetry’ be copyrighted independent of the work on which it is based and by someone other than the creator of the work from which it was drawn?" Naturally, our title here also plays on the multiple possible meanings of “entitle,” from “to name,” to “to allow,” to “to deserve,” and so on.