The end of a year is a time to reflect on the changes in our lives, and that holds true for the life of American law, which often struggles to keep up with technology. From the arrival of new forms of, and new uses for, social media (iTunes App Store favorites Periscope and Meerkat, with Facebook bringing the competition) to the envelope-pushing of artists and photographers, law related to art and entrepreneurship is in as much a state of flux as it has ever been. Here are some takeaways from 2015:
1. There is no consistency in the enforcement of copyright protection. Copyright decisions all year long have been head-scratchers, especially the "Blurred Lines" case and the Batmobile-protected-as-a-character (!) case . There doesn't seem to be rhyme or reason, and performing artists, in particular, have sought to claim copyright in other people's costumes, their own performance, and even photographs of accidentally exposed genitals. Needless to say, copyright case law is confounding, often favors the rich and powerful, and is long in the tooth--the last update was in 1976, almost 40 years ago.
2. But fair use seems to be getting wider latitude. The "Dancing Baby" case really made a big splash this year, even if the consequence of filing a Digital Millennium Copyright Act takedown notice may not be as draconian as fair use champions across the country had hoped. And there were plenty of astonished gasps when a Broadway show got away with lifting Abbott and Costello's most famous sketch. In any event, the risk-takers and the wealthy will continue to push the envelope of appropriation, and the distinction between fair use and outright theft will continue to become, er, blurred. But, for, let's say, the average Etsy seller, there are real risks involved in claiming fair use.
3. There may be a new paradigm in worker classification. Uber has changed the game. There are many motivated people who would like to see an amalgam of employee and independent contractor. And, despite the efforts of intrepid reporters and lawyers to expose exploitation, there are still plenty of people who want to see unpaid internships stick around, too.
4. Startups are not the domain of tech or Silicon Valley only, but technology is key to startup success. New York has made incredible strides in the world of entrepreneurship, and there is now a distinction between "tech startup" and "tech-leveraged startup." Simply put, small businesses can sell off-line products or services, but the world is mobile-optimized, and so must a business be. And the wonderful thing about a mobile-centric economy is that it can be run from anywhere. But large populations=large local customer base. New York taking Silicon Valley's crown shouldn't be such a surprise.
5. Drones are invading every area of the legal landscape. 2015 was the year of the drone invasion, and inevitable statutory regulations followed, including FAA registration requirements (quick tip: you can have the $5 charge waived if you register before January 20). But the legal implications of drones are not limited to safety concerns for firefighters and pilots. Photographers love their drones. It is easy to imagine questions of rights of privacy and rights of publicity (which vary from state to state, and can be quite valuable for celebrities), let alone questions of copyright when a photographer loses control over the instrumentality of a flying camera.
6. Artificial intelligence is breaking new ground, but many are scared of its potential. Data mining has made a lawyer's discovery process so much easier, and new apps modeled on big data, predictive analytics, and machine learning are revolutionizing the work day. I have always been a fan of artificial intelligence, but now it kind of scares me. More important, it scares Elon Musk and Stephen Hawking, too.
7. The JOBS (Jumpstart Our Business Startups) Act is finally being realized. This year, Regulation A+ created an easier way for startups to raise money. And equity crowdfunding will be a complete reality for non-accredited investors in 2016. New York, with onerous Blue Sky laws, still has a long way to go before making it easy-peasy to raise startup investment financing from small-time investors, but there was a time not-so-long-ago when non-accredited investors really couldn't legally invest in private companies. Opportunities abound in 2016!