Professor Eva Subotnik recently presented her latest paper at the 25th Annual Intellectual Property Scholars Conference, this year held in Chicago and hosted by DePaul College of Law (August 7-8th). The article, entitled Digital Replica Rights and Postmortem Policy Levers, is co-written with Professor Andrew Gilden (Southwestern Law School).

Here is the abstract of their article:

For at least the second time, Congress is considering the NO FAKES Act, which would expand IP rights to include a federal digital replica right. One key provision of the Act introduces a novel mechanism for regulating federal IP rights: a 10-year postmortem term, which can be renewed by successors every five years upon a showing of “active and authorized public use” during the two preceding years. While the goal of regulating the creation and distribution of unauthorized digital replicas is advisable, the postmortem provisions create perverse incentives for estate administrators and raise questions about the motivating policies for digital replica rights. Drawing upon our expertise on the intersection of IP and succession laws, we evaluate the postmortem provisions of the NO FAKES Act and situate its approach within a broader examination of how IP laws use postmortem rights, estate planning, and the freedom of disposition as regulatory levers. In particular, we examine how different approaches to postmortem IP can be calibrated to address the wide range of economic, psychological, and cultural issues raised by digital replica technologies. While we welcome Congress’s innovative attempt at engaging with the nexus of IP and succession laws, we make several recommendations to improve the bill, or if enacted as is in the interim, on ways that the law will ideally be implemented by the Copyright Office and the courts.