ARTICLES

The Law of Ideas, Revisited

Lionel S. Sobel

Forty years ago the young Melville B. Nimmer wrote an article for the Southern California Law Review entitled The Law of Ideas. That article formed the framework for chapter 16 in his subsequent copyright treatise, Nimmer on Copyright. Today, the revered treatise still follows the structure and theory of that original article.

In this Article, the author responds to the contentions raised in chapter 16 of Nimmer's treatise. The author argues that the organization of Nimmer's chapter is a function of the issues on the law of ideas that were important forty years ago, not today. Consequently, the chapter gives insufficient attention to the issues of current importance. This Article, therefore, explores these issues and respectfully takes exception to some of the conclusions in the treatise.
 

A Positive Economic Theory of the Right of Publicity

Mark F. Grady

The right of publicity allows entertainers and other celebrities to charge for the commercial use of their names, likenesses, and distinctive performance styles. Why, from an economic point of view, should celebrities have this right? This Article suggests that courts create liability in publicity cases so as to prevent too rapid a dissipation of the value of socially valuable publicity assets. The right of publicity privatizes a public good-publicity-and thus encourages a more sensible use of this type of social asset.
 

ESSAY

Corcovado: Renewal's Second Coming or False Messiah?

David Nimmer

In Corcovado Music v. Hollis Music, the Second Circuit considered a foreign contract that assigned copyrights from one party to another. Although the contract was drafted in broad terms, it did not include an explicit mention of copyright renewal. The court concluded, therefore, that the grant did not convey American renewal rights. Notwithstanding the superficial congruence between that ruling and precedent, the author argues that Corcovado is both unprecedented and unfortunate because of the United States' recent accession to the Berne Convention and the policy of relaxing formalities when addressing the copyright laws of foreign countries.
 

COMMENT

It's A Wonderful Life - Motion Picture Studios Can Regain Control of Their Wayward Classics
 

Eric P. Early
 

Many of the copyrights to Hollywood's classic films have lapsed, and thus have fallen into the public domain. This Comment suggests two ways for the studios that produced these "wayward classics" to recapture their copyrights. The first, the doctrine of derivative-work subordination, has been recognized by the United States Supreme Court in Stewart v. Abend. This doctrine states that the owner of the copyright to an underlying work-such as a short story-has lawful control over the use of that work even after a derivative work-such as the movie based on the short story-has been published.

The second way to recapture these "wayward classics" is by arguing that movies distributed prior to the effective date of the Copyright Act of 1976 were not "published" in the legal sense. If the system for exhibiting movies in the United States prior to the 1976 Act did not constitute "general publication," then the classics themselves would not have been not invested with statutory protection until the effective date of the 1976 Act, at which time they would have been given protection until at least December 31, 2002.
 
 

It would be unthinkable for this inaugural issue of the UCLA Entertainment Law Review to be dedicated to anyone other than Melville B. Nimmer. The law school course called Entertainment Law was his invention, and it evolved naturally from his own life in the law. Before he became a scholar-practitioner, he was a practitioner scholar. He represented screenwriters and others in the entertainment industry, and while he was carrying on this demanding practice he wrote and published Nimmer on Copyright, a four-volume treatise on copyright law. Not just a treatise, but the treatise on that subject. At times Mel had mixed feelings about the treatise's standing as the nation's leading "authority" on the subject. Long after he had joined the UCLA law faculty, he was engaged as counsel in a major copyright case that required him to argue a position contrary to the position he had taken in his treatise. In one sense, it was an issue on which Mel couldn't lose-but, of course, neither could he win. If I remember correctly, the judge followed Nimmer the authority, ruling against Nimmer the advocate.

Even the title Mr. Entertainment Law is inadequate to define Mel Nimmer's place in the legal world. He became a leading scholar on the First Amendment, and his treatise, Nimmer on the First Amendment, joined Nimmer on Copyright on library shelves throughout the nation. In this field, too, he put his learning and his practical skills to work in live cases. The one case of Mel's that all law students know is Cohen v. California,¹ a case that tested the courage of his convictions. Cohen, it will be remembered, chose the Vietnam War as the time, and the Los Angeles County Courthouse as the venue, for wearing a jacket emblazoned with a four-letter incivility addressed to the military draft. A number of civil libertarians, some of them famous, urged Mel not to seek Supreme Court review of Cohen's conviction for disturbing the peace by offensive conduct. These cautious folks thought the case was a loser, and that the Court's opinion would make unwelcome law. The naysayers not only misjudged Justice Harlan's good sense; they also reckoned without Mel Nimmer's powers of persuasion. The story of the oral argument is one I tell my classes regularly-and Gloria Nimmer honored the victory by embroidering a pillow. On one side-the side that used to face outward in the Nimmer living room-the pillow quoted Justice Harlan's epigram: "One man's vulgarity is another's lyric." On the other side, of course, the pillow quoted Cohen's lyric.

The victory thus honored was not just a personal triumph-although Mel never feigned indifference to that aspect of the case. Cohen was a notable victory for the freedom of speech. From that decision forward the Supreme Court has recognized that the First Amendment protects more than civic deliberation, more than civil debate. Today the First Amendment extends its embrace to novel-emotional, uncivil, even raucous-modes of expression and to ideas that the conventional wisdom calls Unreason. In short, the First Amendment serves the cultural outsiders who challenge orthodox definitions of Reason and common sense. If the First Amendment today is an essential bulwark for the Constitution's commitment to tolerance in a society of many cultures, Cohen v. California is one of that bulwark's foundation stones.

Only once were Mel and I co-counsel in a litigated case. Our law school's student body president was charged with blocking a Beverly Hills sidewalk without a permit. His instrument for this alleged crime was a card table; he had sought to register voters for the Peace and Freedom Party. Now, this was no Cohen v. California; it was an easy case, and it made no history at all. Still, Mel and I had fun. In a thirty-three-page brief we wheeled up the First Amendment's heavy artillery and pointed it at the City. Then we offered an olive branch. We suggested that the municipal court could avoid the constitutional issue by limiting the ordinance to its obvious purpose: requiring permits for construction projects that blocked sidewalks. At the oral argument, the judge's laughter expressed not only his amusement but his sense of relief.

In matters large and small, in court and in the classroom, Mel taught not only by precept but by example. If his copyright treatise was at once magisterial and encyclopedic, his day-to-day teaching of classes in Entertainment Law and other subjects was prepared and executed with equal care. Not just the Cohen case but the Beverly Hills case, too, displayed Mel's grasp of the larger theories behind the issues-and also received the meticulous attention to detail that is the hallmark of the craftsman-at-law.

The UCLA Entertainment Law Review aims to present to the profession works of scholarship that will illuminate a particular field. The field is mainly identified, not by a separate body of legal doctrine, but by a focal point of law practice and a corps of law practitioners. Mel Nimmer would be-I daresay, is-ready to celebrate the launching of this journal, as anyone would celebrate the launching of a ship. May his spirit bless this vessel and all who sail in it.

* Professor of Law, UCLA School of Law.

1. 403 U.S. 15 (1971).
 

Melville B. Nimmer: A Special Kind of Man

Norman Abramst*

That this inaugural issue of the UCLA Entertainment Law Review is being dedicated to Melville B. Nimmer some eight years after he left us is testimony to how vivid the memory of Mel remains for all of us. Even today, it is hard to believe that he is not still with us.

Mel Nimmer was a rare combination. An intellectual, but without any pretensions, Mel was extremely well read, interested in everything that was interesting, informal in manner, serious in purpose, and with an impish sense of humor, a man who, with a twinkle in his eye, glorified in making creative puns. I do not know whether he was indeed named after Herman Melville-as Mel often said-but it seemed appropriate that he should have been named after the author of a monumental American literary work.

He was, of course, also a first-class legal scholar who made the field of copyright his own, dominating it nationally as few individuals have been able to assert themselves over an entire field of law. And he was also a first-rate First Amendment lawyer and scholar, while making occasional forays into other areas of the law. Not all may know, for example, that about twenty-five years ago Mel wrote a landmark article on Israeli jurisprudence dealing with the subject of judicial review in Israel, a country that does not have a constitution.¹ The issues that Mel addressed in that paper have been discussed since in numerous articles, but Mel's piece has stood the test of time and remains the fountainhead of scholarly discussion on the subject.

That he also managed, while teaching, to maintain his Treatise on Copyright, to produce a large quantity of scholarly material, to be actively of counsel to a law firm, and, with some frequency, to argue cases before the Supreme Courts of the United States and of California, was always a source of wonder to me. And the fact that he was able to do so much while keeping his desk relatively free of paper seemed a feat of wizardry. It is also worth mentioning that whether because he selected cases wisely or argued them creatively, or, I would venture, both, he had an outstanding record of appellate victories in landmark cases before the high courts.

I can remember when the issue of Mel's joining the UCLA law faculty after many years in practice was first broached. I was a very junior member of the faculty at the time; Mel was my senior in both age and experience. To appreciate the context in which that issue arose, one must understand several facts about law teaching and teachers: 1) in the national law schools, such as UCLA, teaching and scholarship are full-time activities; 2) there are a great many lawyers, often very talented and distinguished who after a number of years in practice persuade themselves that they would like to shift into a law teaching career; and 3) there is a view among law teachers, almost amounting to a prejudice, that once a person, no matter how talented as a practitioner, has spent a goodly time in a career of practice, let us say ten years or more, it is extremely difficult to shift into a life of full-time teaching and scholarship.

When the matter of Mel's appointment to the faculty was proposed it was against the background of such attitudes of many of the faculty about the ability of practicing lawyers to make the move into a new type of career. But Mel clearly was different. He had completed a substantial and very scholarly treatises while engaged in the full-time practice of law. That itself was an unusual feat. To meet and talk to him was to know immediately that he was a man of scholarly interests and would be a devoted teacher. And so he was appointed . . . and the rest is history. It was a decision that members of the faculty never regretted. He went on to become one of the most distinguished members of the UCLA School of Law faculty. I first came to know Mel as a friend through the many eveningmeetings at his home that I fondly remember, meetings in the 1960s of a group that was called, perhaps a bit pretentiously, "the Jurisprudence Society." It was composed mainly of law-school faculty

from UCLA, USC, and Loyola, plus a few practitioners and judges who gathered together to hear the presentation of papers on scholarly subjects that turned out sometimes to be jurisprudential in nature. There was a lengthy period during which Mel and Gloria made their lovely home available for the meetings of this group. Those were wonderful convivial evenings of thoughtful discussion on significant subjects in a atmosphere of serious purpose.

Subsequently, Mel (and his family) and I happened to spend our respective sabbaticals in Israel at the same time. It was a couple of years after the Six Day War, an exciting and uplifting time there, and we spent many hours together and with our mutual friends in Israel. He was a friend whose wise counsel I valued. He was an extraordinarily likable, gentle man, a person who was a good friend to all of his myriad friends.

Mel Nimmer is a man whose memory we cherish. And so we exert ourselves to preserve that memory through a successful lectureship named in his honor and through the dedication of this new journal on entertainment law, a field to which he contributed so much. And undoubtedly there will, and should be, other such efforts. His is a memory that should be preserved. He is a man whom we all miss.

* Vice Chancellor, Academic Personnel and Professor of Law, UCLA.

1. Melville B. Nimmer, The Uses of Judicial Review in Israel's Quest for a Constitution, 70 COLUM. L. REV. 1217 (1970).
 

Mel Nimmer: Scholar and Professor

Kenneth Ziffren*

A bit more than three decades ago, I was accepted for admission to the UCLA School of Law and "prepped" by working in the law library the summer before classes commenced. After getting some rigorous workouts running up and down stacks and through carrels, there were moments of reflection and terror as the weeks passed and school become imminent. I started to browse around. I spoke to my fellow workers about the enormity of the task soon (and sooner) to arrive. I became indoctrinated into the woof and warp of the school, to its then short tradition (having been formed circa 1950), to its past luminaries, its graduates, and to its then current faculty. Occupants of the library spoke of the titans of the era-of Richard Maxwell (then the Law School Dean), James Chadbourn, Murray Schwartz, Ben Aaron, William Warren, Arvo Van Alstyne, Addison Mueller, "Wild Willie" Cohen, and others. The list makes me shiver even today. But none was more awesome nor as well regarded for scholarship and working knowledge in his area of expertise than Professor Mel Nimmer.

In those days, with the Beatles chirping in 5/4 time and JFK on worldwide jaunts, Congress had begun the process of revising the Copyright Act of 1909. For his part, Mel Nimmer was the leading academician, indeed practitioner, advising and counseling on how to make sense of it. The politics and complexities of the subject, added to the multifarious lobbying groups, caused the legislative process to stretch out more than a decade. One would not recognize sufficiently, even today, how intricate themes and doctrines would be systemized, coordinated and resolved. What was apparent to all of us who joined Professor Nimmer on the long journey toward passage was that this saturnine, benevolent, extraordinarily calm genius was shedding light and vision on intellectual puzzles of great magnitude. Anticipating what was to come-pay television, home video, pay-per-view, interactive games (from Atari to CDI), lap top computers, and the emerging electronic superhighway, to name a few-this modest, straightforward individual sought to bring realistic and cogent examples of abstract thinking into very real everyday thought and language. What is more, he succeeded in illuminating a subject that still causes angst in intellectual circles. With a dry humor, almost continental in approach, he systematically laid out the historical background, the competing groups (financiers vs. "authors," distributors vs. producers, etc.), the options and alternatives. He challenged befuddled students, academics, practitioners and judges as no one had before.

Before the computer and its digital friends had made their appearance on the scene, he came forth with a compendium of organized depth and breadth called Nimmer on Copyright. But the treatise was much more than simply a volume about copyright it traversed a century of intellectual property matters melded into the growth of the entertainment industry in publishing, music, stage, film, television, and other disciplines. Today, thanks to his son and his colleagues, the opus is regarded as the indispensable reference for newcomers and veterans alike.

After matriculation from the Law School, I had the good fortune to practice in the arena that Professor Nimmer occupied. He was generous in his "off and on" the record consultations with me as a budding lawyer faced with the practical-as opposed to academic problems of making copyright law work for authors, producers, lenders and distributors. Even today, more than three decades later, I remember his measured discourse and keen appreciation for problems of the law practice and how to anticipate opposing counsel's arguments.

It is therefore altogether fitting that in this inaugural issue of the UCLA Entertainment Law Review, we pay tribute to this distinguished gentleman. His insight and verve will last as long as scholars and practitioners muddle over intellectual property issues.

* Senior Partner, Ziffren, Brittenham & Branca.