Jeanne Fromer’s “New Copyright Opportunist” and a New Perspective on Copyright Litigants

I really enjoy academic conferences and presentations. A competent, prepared expert can present an interesting set of ideas that will, in some way, enrich the lives of the audience. The loftiest goal for the presenter might be an amazing presentation that revolutionizes the entire field, and that presentation becomes a legend. A more attainable goal is to present something interesting, meaningful, applicable, novel, or at the very least, something clear. Achieving any one of these is laudable. Recently, I was fortunate to see a presentation on copyright that ticked all the boxes.

 

At the Copyright Society’s annual Brace Memorial Lecture this month, Jeanne Fromer gave one of the best academic talks I’ve ever seen. It wasn’t startlingly revolutionary or polemic, but it was clever, careful, and nuanced. This is extremely difficult to achieve, and I have seen some rather sorry presentations that did not qualify for even one of these accomplishments. Even more difficult than having a clever idea or a nuanced distinction is to be clear in explaining the idea and its nuances. Maybe I’ve spent too much time scrolling through sloppy communication on Twitter lately, but I feel strongly that her presentation deserves praise just for how careful and clear it was. But it also deserves praise for its substance, not just the organization and effective communication. Fromer suggested a more careful consideration of some of the current litigation in copyright, and presented a new perspective on a segment of those litigants based on her distinctions. As the title of her talk promised, she gave a view of “the new copyright opportunist.”

 

Fromer set out a distinction between copyright trolls and copyright opportunists by defining each clearly. Copyright trolls make no creative contribution of their own and merely aim to make money solely by settling lawsuits that would be too expensive to litigate. Copyright opportunists seek to increase the value of a work by litigating novel relevant issues.

 

She then gave three examples of these new copyright opportunists:  tattoo artists whose work is represented in video games, paparazzi whose photographs are used by the subjects on their own social media, and songwriters whose less popular songs bear substantial similarity to successful new hits. Each of these examples shows a current contention over the plausible increase in the market potential of these works. One of the most exciting aspects of this presentation was the clear presentation of how technological advancements impact the legal dimensions of artistic and creative works, and subsequently affect the economic dimensions of those works.

 

I particularly like the fact that, after this presentation, I have a new framework and language for considering new copyright litigation I hear about. I expect that this will help me to make more nuanced evaluations of copyright cases and policies in the coming years. It also gave me a new standard for clarity and elegance in communication, particularly where any kind of subtly is involved.