Professor Natapoff's Looks at Misdemeanor Decriminalization

Professor Alexandra Natapoff’s latest piece is entitled Misdemeanor Decriminalization, 68 Vanderbilt L. Rev (forthcoming 2015). She was interviewed about it by Slate. The abstract is below.

As the U.S. reconsiders its stance on mass incarceration, misdemeanor decriminalization has emerged as an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars—nonjailable offenses do not trigger the right to counsel--while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier—both logistically and normatively--to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

Loyola Professor Explores How and Who Makes Copyright Policy in Washington

Professor Justin Hughes, William H. Hannon Distinguished Professor of Law, recently published a pair of essays clarifying the level of copyright law expertise in the U.S. Patent & Trademark Office. Rebutting claims made by an entertainment attorney in an op-ed that appeared in The Hill, Hughes notes that “that USPTO currently has a bench of copyright expertise as least as deep as the team at the Copyright Office.” Read his full essays:

• The Hill 
• The Media Institute (expanded)

Prof. Rothman Submits Amicus Brief in Right of Publicity Case

Professor Jennifer Rothman submitted an amicus brief along with UCLA Professor Eugene Volokh supporting en banc review by the Ninth Circuit in Davis v. Electronic Arts, a case involving the right of publicity.

SUMMARY OF ARGUMENT

The panel decision in this case followed the majority opinion inIn re NCAA Student-Athlete Name & Likeness Licensing Litigation (“Keller v. Electronic Arts”), 724 F.3d 1268 (9th Cir. 2013)(commonly known as Keller), which defines thisCircuit’s law on the right of publicity and the First Amendment. No petition for rehearing en banc was filed in Keller, so this is the first clear opportunity for the entire Circuit to consider whether Kelleris correct.

Keller’s conclusion that references to real players in fantasy sports video games are not protected by the First Amendment is mistaken, and dangerously so. The Keller majority begins with the sentence, “Video games are entitled to the full protections of the First Amendment, … ‘[l]ike the protected books, plays, and movies that preceded them[.]’” 724 F.3d at 1270-71 (quotingBrown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011)). It therefore follows that, to the extent video games may infringe the right of publicity for depicting or referring to real people, so may books, plays, songs, and films.

Thus, under the logic of Keller, the makers of the recent filmSelma might be liable for a host of right of publicity violations unless they got permission from Coretta Scott King, Andrew Young, John Lewis, Harry Belafonte, and the heirs of Martin Luther King, Jr., J. Edgar Hoover, Lyndon Johnson, and others. The Academy Award-winning Forrest Gump might also have infringed historical figures’ right of publicity unless the filmmakers got permission from the Elvis Presley, John Lennon, and Abbie Hoffman estates. Simon & Garfunkel’s Mrs. Robinson, which asked “Where have you gone, Joe DiMaggio?,” might have infringed Joe DiMaggio’s right of publicity.