Noteworthy interview on new social media advertising regulations

Noteworthy interview on new social media advertising regulations

Earlier this autumn, several celebrities were investigated by UK regulators for not labelling social media posts as “advertisements”. Given that so-called influencers can potentially sway the shopping habits of millions, the Advertising Standards Association published An Influencer’s Guide to making clear that ads are ads, to help celebs and bloggers avoid misleading consumers. But what does this guide really mean in practical terms? To better understand the world of influencers and online advertising, I’ve interviewed Nicole Ocran-Hegarty: journalist, style blogger, and Influencer Strategy Manager at Disney.


Kelsey:  Nicole, you and I first met online about 15 years ago on the blogging platform Livejournal. Since then, we both – coincidentally – moved from the United States to London, where we finally met in real life!

Can you tell me a bit about your professional background in journalism, and what inspired you to begin your personal fashion blog, The Noteworthy?

Nicole:  I honestly cannot get over how the Internet brings people together. I remember typing away and commenting on your LiveJournal and messaging you from my childhood bedroom in Annandale, Virginia. You were constantly here there and everywhere and I was so jealous of that. Anyway, I’m already off topic!

My career in journalism started when I was 19 or 20 and a student at George Mason University. I had just started editing the Style pages of my university’s student newspaper, the Fourth Estate. It was there that I really honed my craft, my love of writing, editing of interviewing. In my junior year I became editor-in-chief of the paper: I lived and breathed the paper, and didn’t want to do anything else but be in the Student Media office. I also was interning at the The Washington Post’s free daily paper, Express.

By the time I graduated from George Mason, I started another internship at the non-profit Student Press Law Center, fighting for First Amendment rights for students across America. At the same time I applied to City University in London, and went with their journalism masters programme! It was the best decision I ever made.

In London, I got my first job in entertainment journalism at Entertainment News, and I’ve since written for the Metro, The Sun and Refinery29 UK! I decided to start The Noteworthy while I working in a job where I wasn’t really able to express myself through personal writing. When I got made redundant, The Noteworthy became a real outlet for me, as I was able to showcase my love of fashion, where I hadn’t been able to before.

In addition to writing about style, fashion and beauty, Nicole routinely explores topics about feminism, politics, Black women, and pop and celebrity culture. Recently, she explained why she won’t shop at Topshop anymore in light of the Philip Green sexual harassment scandal.

Under the new Influencer’s Guide, bloggers only need to disclose something as an advert if: (1) they’ve been “paid” in some way, which could include receiving a freebie, AND (2) they are under some form of editorial “control” by the brand. What are your thoughts on this? Do you think most people are aware of the “control” aspect? Do you think it matters?

I have so many thoughts on this! Firstly, I think disclosure is incredibly important. We’re in an age now where not only are audiences incredibly savvy but they’re also somewhat skeptical. It’s so important to be completely honest about their gifted items, paid campaigns, free trips and so on. Especially in an age where we are just feeling terrible and comparing ourselves to everything we see online.

I’m not sure how much the general public knows how much control a brand has over content. Often it can be very clear and sometimes it doesn’t look authentic to that influencer, so it can be a bit obvious. Other times, the brand might gift the influencer a product without any expectation for them to post, so it ends up just fitting in naturally.

The control aspect is key. If a brand gifts you an item, but then expects you to post on a certain day or see content before it goes live – then this is sponsored content. Even if you haven’t been paid for it, and that must be made clear to your audience. The guidelines are in place to protect consumers, which I appreciate.

You mention “gifting” by brands. Is the distinction between “paying” and “gifting” a product an important one to make? If so, why?

To me, yes. The two mean completely different things in my mind – when something is paid, I think of brand control, I think of money exchanging hands, and contracts signed. Gifted items and freebies although have monetary value, should be made clear in a different way. I do prefer to know that an influencer hasn’t purchased that product with their own money, for example, or didn’t pay for that holiday.

Something I hear often from colleagues and friends is that advertising on social media is “obvious enough,” and that consumers don’t need the #ad hashtag or similar disclaimers. As a general rule, do you think bloggers and influencers are actually clear and transparent enough? Is there sufficient self-regulation? Or were the regulators right to step in with new rules?

There are definitely #ads and #sponcon that are extremely obvious with their advertising messaging and aren’t being declared as such – but I don’t think that should matter. The regulators are absolutely right to step in with new rules and best practice. I also think there’s been a real effort from bloggers and influencers to declare ads, but there are still a select few (including celebrities and reality stars) getting away with not doing it.

What do you think some of the biggest concerns influencers and bloggers have with making it clear that adverts are indeed adverts? Aesthetics? Independence? Credibility?

I think fatigue? I think there are a lot of consumers who feel like they are constantly being advertised to, but we spend so much time on our phones, our laptops and social media now that advertising is just becoming more obvious. It’s always been there in TV, radio and print!

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But at least for me, a lot of the bloggers that I followed before they were known as influencers, I followed them because I liked them as people (or their online personas), so I understand it can be jarring to see an ad thrown in with their regular content. But I enjoy supporting them still because I feel like I’ve been on that journey with them.

If you could speak to the advertising regulators directly and tell them one key thing about this issue, what would it be?

I do think a lot of the declaration can feel excessive, which does cause people to have to say “This isn’t an ad, I just love X”. My main issue has been the distinction between a gifted item as payment, especially as there can be a lot of influencers who receive gifted product and declaring it as an ‘ad’ or as ‘sponsored’ to me as a consumer, means something else entirely.

Finally, what have been the most challenging and rewarding things about running your own fashion and lifestyle blog thus far? What is something you hope to accomplish or participate in over the next few months?

The most challenging thing is time! I still work full-time in talent/influencer strategy, so that is my 9-5 job. Having to run my blog during evenings and weekends can be pretty tiring but also I just wish I could do more!

The most rewarding by miles and miles are the friendships I’ve made through blogging, that is what I cherish the most and is what keeps me coming back to create more content! Being able to speak to people all over the world is just a joy.

I hope to be able to get my life in order and continue to post consistently! Anything I can do to write more would be ideal, so hopefully some more freelance opportunities, or even speaking opportunities as well!


Many thanks to Nicole for sharing her time, expertise and insight with me for this interview! You can follow her at, on Instagram at @NicoleOcran, and on Twitter @NicoleOcran

The MPRE: my experience sitting the American legal ethics exam as an English lawyer

The MPRE: my experience sitting the American legal ethics exam as an English lawyer

The Multi-state Professional Responsibility Exam, or “ethics exam” (MRPE) is one of three exams required in order to practice law in an American state (more on that here). Having just taken the exam, here are my thoughts as an English-trained solicitor currently practicing in London. 

🌟 UPDATE: I passed the exam! I exceeded the score I needed for California.

For more information on how the United States and English legal systems compare, read my post “Lawyering in America and England”. 

Introduction to the MPRE

The MPRE tests a prospective lawyer’s understanding of professional ethics regulation in the United States. The questions are based on the Model Rules of Professional Conduct (MRPC). The MPRE is a 60-item (50 scored questions and 10 non-scored questions), two-hour multiple-choice examination administered three times each year at established test centers across the country. You must pass the MPRE before you can be admitted to practice in the United States, but you can take it anytime after completing their first year of law school (including after sitting the bar exam itself).

I chose to sit the exam in New York City because: 1) it’s easiest to get to from London and 2) my husband works for a NY headquartered company, so he was able to meet up with colleagues while we were there. My score will be sent to my jurisdiction of choice, which happens to be California.

One Pace Plaza
I took the exam at Pace University in Manhattan. My only complaint was that the individual desks were really tiny, but other than that, it was a good test day experience. 

Test day

On the morning of the exam, I woke up at about 5AM: this was due to still being on “London time” and somewhat jet-lagged! I bought some coffee and brought it back to the hotel room, and spent about an hour doing some last minute cursory revision.

At 8AM, I walked the three blocks to the testing centre at Pace University. The reporting time was at 8:15, and there was already a massive queue of students and prospective lawyers outside. We were held in the queue for about 30 minutes, and I enjoyed chatting to a few people about our various career stages. I even spoke to a young guy who was resitting the exam after failing it previously. It’s important to maintain some perspective: failing isn’t the end of the world!

At 8:45AM we began to stream into the building, where people were turned away for having backpacks (the rules clearly state NO BAGS). At one point a test invigilator said, “if you have cellphones, don’t tell me about them! Just make sure they’re turned off and hidden away!” Phones, like bags, are also forbidden – but I suppose there was a slightly more lenient approach to having them on this occasion.

We then went through the process of having our admission tickets checked against our ID, and sent into our testing rooms. At Pace, we sat in small classrooms with about 20 people per room: there wasn’t any assigned seating, it was simply done on a first-come, first-seated basis.

By 9AM, everyone in my room was seated and the door was closed. The invigilator read instructions about the exam, and we had a few minutes to fill out the various bubbles with our names and other bits of information. At 9:10AM we were permitted to break open the seal of our papers and begin.

The day before the exam, I spent a few hours studying in the famous Rose Reading Room at the New York Public Library


I probably invested about 50 hours in studying for the MPRE over the course of two months. That time also includes “passive studying,” such as listening to MPRE lectures while on the tube, for example.

  • I first familiarised myself with the subject matter breakdown of the exam itself, available here on the NCBE website.
  • I listened to and read the BarMax lectures, which are free for the MPRE.
  • I did a lot of practice questions, using BarMax as well as AmeriBar.
  • I read through the MRPCs on the ABA website.
  • I identified which questions were tripping me up and what Rule they related to. I then read the explanatory comments for those particular rules, also available on the ABA website.
  • I read through all of the test day instructions at least one week prior to the exam itself, so I knew exactly where to go and what to bring (for example, a passport photo in addition to ID!)

Final thoughts and tips

  • Do focus your energies on practice questions when studying! This exam is not about understanding the theory or philosophy of professional ethics. You will not be writing essays about the merits of client confidentiality!
  • Do review the commentary for rules that you want more clarity on. The commentary is far less vague than the rules, and often includes practical examples.
  • Do not underestimate this exam. Especially as a foreign lawyer, I found some of the rules a bit counter intuitive. Don’t be tempted to cram the night before: I strongly recommend dedicating 20 hours to studying for this exam if you’re an American law student, and more if you’re a foreign lawyer.
  • Do feel free to contact LSAC ahead of time at if you have questions, including questions about test center assignments. I originally registered to take the exam in Seattle but then changed my mind. LSAC staff were very helpful and the change only took one email to initiate.
  • Do not bother trying to memorise the rules!
  • Do not worry about drinking too much coffee on the morning of the exam. You will have plenty of opportunities to use the toilet – at least I did at my centre!
  • Do manage your time. You will have two minutes per question. Some questions only took me 20 seconds to answer. My advice? Go through the exam answering everything you can on a first pass. If you come across anything that requires a bit of contemplation, write the question number down on the test booklet, and return to it later. When you go through the exam for a second time, cross off the difficult questions from your earlier list.
  • Do not be afraid to guess, if for whatever reason you can’t come up with the answer. There are no penalties for wrong answers, so just give it your best shot!

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From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

Three times each year, two professional American football teams journey across the pond to play against each other in the NFL London Games. This weekend however, four players from the Jacksonville Jaguars made headlines for something they did off the field. They were arrested under suspicion of fraud by false representation for attempting to leave a nightclub without paying the £50,000 ($64,000) bar tab.

According to ProFootball Talk, expensive bottles of champagne and vodka were sent to the players’ table. They thought someone else was paying, and were surprised to learn that they were expected to pay. The bill was settled hours after the arrest, and the players were released with no further action taken by police. “There was definitely a misunderstanding,” said Barry Church, one of the players arrested. “We handled it as a private matter within the team, and we’ll just go from there.”

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Despite their fame and talent, at the end of the day, professional athletes are capable of making mistakes just like the rest of us. But unlike the rest of us, sports stars are often contractually obligated to maintain a positive reputation.

The NFL has had a formal policy addressing off-field conduct since 1997. The current 2014 Personal Conduct Policy prohibits physical violence, illegal possession of a gun or drugs, and cruelty to animals – remember Michael Vick and his dogfightingBut the policy also prohibits anything “that undermines or puts at risk the integrity of and public confidence in the NFL.” Even if a player’s conduct does not result in a criminal conviction, the NFL can impose fines, suspension, or even banishment from the league.

In addition to the NFL Policy, individual player contracts also contain “morality clauses.” Also known as a “moral turpitude clause” or “bad boy clause”, this permits an employer to end the contractual relationship if the employee’s conduct breaches the moral expectations laid out in the employment or endorsement agreement. For my overview of the history and use of morality clauses more generally, see Morality Clauses in Talent Contracts.

The 2012 contract between Arian Foster (“Player”) and the Houston Texans (“Club”) is available online thanks to a (fascinating) IPO filing with the Securities and Exchange Commission. Clauses regarding Foster’s behaviour and conduct included:

  • Player agrees to give his best efforts and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game. 
  • If at any time, in the sole judgement of Club, Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.
  • Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the integrity and good character of NFL players.

“Meaning Transference” and marketing magic

You might be wondering why a football team should care about the off-field behaviour of its players. As long as the guy can run the ball or block a tackle, who cares if he’s arrested for trying to skip out on a bar tab. Right? Wrong.

Consider for a moment the amount of money teams and companies invest in employment contracts and endorsement agreements. By way of example, Russell Wilson earned $2 million during his first three seasons with the Seattle Seahawks. In 2015, the Hawks rewarded their quarterback with a renewed contract worth nearly $90 million. Wilson also gets $10 million a year from his deals with Bose, Nike, and Alaska Airlines. On the other side of the country, the New York Giants’ wide receiver Odell Beckham Jr is earning about $10 million over four years. But the real kicker is that Nike recently signed him for the biggest shoe endorsement ever, worth $25 million over five years.

“Seattle’s hometown airline” Alaska Airlines “couldn’t be more proud of Seattle’s football hero, Russell Wilson.” Thanks to Wilson’s impressive skill and wholesome image, they even made him their CFO! Chief Football Officer, that is.

Meaning Transference is a social theory which posits consumers “transfer” the perceived ideals, credibility and reputation of celebrities to the associated product or service being sold (Grant McCracken). Because negative perceptions can also transfer, a company will want to distance themselves if a celebrity behaves badly. Essentially, morality clauses protect the team or company’s public image from the athlete’s potential scandals. In practice, this could mean suspending or terminating the contract, which could cost the athlete thousands – or potentially millions – of dollars.

The crux of any morality clause is how the “bad behaviour” is defined. Does a player kneeling during the American national anthem adversely affect the image of the NFL?

Given today’s heated political climate, it’s no surprise that professional athletes are increasingly voicing – or otherwise demonstrating – their opinions on social issues. In 2016, Colin Kaepernick of the San Fransisco 49’s started the trend of protesting police brutality and racial inequality, by kneeling during the national anthem at the start of games. Other players soon joined in, much to the ire of many football fans and prominent figures, including President Trump. That same year, Kaepernick was deemed the most hated player in the NFL.

Speaking to The Washington Postconstitutional law Professor Fred Smith Jr. described the anthem debate as a “clash of values which has become a very fraught issue in the American political imagination.” The NFL reacted to the situation by announcing a new policy in May of this year: players must either stand for the national anthem on the field or wait in the locker room. The policy was then shut down by the NFL’s labour union (NFLPA) only two months later.

As the NFL and the NFLPA continue to negotiate, “no new rules relating to the anthem will be issued or enforced”. However, introduction of the new rules in the first place demonstrates that the NFL is at least attempting to mitigate the perception that it is an unpatriotic organisation. It could be argued that from the NFL’s perspective, it is the result of the public’s perception that matters, and not the conduct itself. 

In spite of the furor and uproar, Nike made a risky decision in September to feature Colin Kaepernick in an advertising campaign. Despite some backlash and boycotts, the move paid off handsomely overall: Nike received valuable free publicity, and online sales and stock price skyrocketed. In this way, Kaepernick’s kneeling is both detrimental to one organisation (the NFL), as well as highly profitable for another (Nike).

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Nike released a controversial commercial featuring Colin Kaepernick, which hints at the embroilment over NFL players kneeling during the American national anthem.

Ultimately, it is critical to understand that morality clauses attempt to regulate something that is continually in flux. Opponents of morality clauses worry that the definition of what constitutes “immoral” or damaging activity could be too broad and subject to abuse by the employer. Smart sports stars and their lawyers will therefore do well to ensure that morality clauses are carefully negotiated and written precisely in order to protect their position – and their paycheques.

NDAs and the Sound of Silence

NDAs and the Sound of Silence

“When truth is replaced by silence, the silence is a lie.” 
Yevgeny Yevtushenko

The #MeToo movement has brought Non-Disclosure Agreements (NDAs) as a way to silence allegations of sexual harassment into the public debate.  In light of controversies surrounding Donald Trump, Harvey Weinstein and now – Sir Philip Green, the billionaire retailer whose brands include Topshop – much has been discussed about the legality and morality of using NDAs to prevent publicity or otherwise cover up  bad behaviour.

But like any legal document, NDAs are not inherently “good” or “bad”. They are simply a tool, regularly used by lawyers in many contexts. To understand why they have become controversial, and to contribute to the debate concerning their use and abuse, we must first consider their structure and purpose.

NDAs, which are also called Confidentiality Agreements, are simply a type of contract used to prevent someone from sharing confidential information in ways which are unacceptable or damaging to another person. What information is considered “confidential” depends very much on the situation, as well as the relationship between the person providing the information (“discloser“) and the person receiving it (“recipient“).

Use of the word “confidential” to mean “intended to be treated as private” dates from the 1770s, and has its roots in the Latin word confidentia. This means “firmly trusting,” and is itself derived from confidere, which means “to have full trust or reliance.” 

Confidential information is often shared for a business purpose or in corporate negotiations, especially when mergers or collaborations occur. For example, a restaurant chain looking for a deal with a food manufacturer may want to share recipes, or a fashion designer may seek a partnership with a well-known athlete who has sketches and drawings of a sports-inspired clothing range. Likewise, when a company hires a new employee, they may be given access to company client lists, manufacturing processes or other valuable data.

The basic anatomy of the NDA is relatively straight forward, and should always contain the following elements:

  • A clear definition of the confidential information.
    These are often heavily negotiated clauses, and it is usual to have very wordy and detailed definitions which set out explicitly what is and is not captured by the agreement. Sometimes, even the NDA itself is considered “confidential information,” which means that its terms or existence must be kept secret.The discloser will often want a broad definition of confidential information which covers not only the documents or products in question, but perhaps any derivative ideas, feedback, analysis or concepts created or inspired by the confidential information. On the other hand, the receiving party will want to keep this definition as narrow as possible.


  • The key obligation to keep the information secret.
    Standard wording will typically begin as follows: “In return for the discloser making confidential information available to the recipient, the recipient promises to the discloser that it shall keep the confidential information secret and confidential.”However, the obligation clause almost always contains many more rules and responsibilities. For example, the recipient may be prohibited from even indirectly sharing or hinting at the confidential information. They may also be prohibited from making copies, removing the information from a particular location, or storing it on their personal smartphone.


  • The ways in which the information can be used.
    The recipient will be prohibited from using or exploiting the confidential information except for the “purpose.” The purpose is the defined reason the information will be shared in the first place, for example, “to establish a collaboration in respect of the Tommy Hilfiger x Lewis Hamilton fashion line.”Disclosures of the information by the recipient to their employees and professional advisers (including lawyers and accountants) are usually permitted. In such cases, the discloser may ask that all individuals who receive the confidential information from the recipient sign a separate confidentiality agreement. While some may consider this a bit over the top, it makes sense from the discloser’s perspective that the receiver should take responsibility if its employees or advisers breach confidentiality.


  • What happens if the project or deal does not go ahead, and the duration of the secrecy.
    The discloser will often ask that the receiver returns or destroys the confidential information if the project or transaction fails to materialise. The parties should also establish a realistic time period for the duration of the secrecy, as it may be unreasonable to expect that the information has to remain confidential for eternity.
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Lilly Panholzer for City finds it is easy to silence women with NDAs

Seems simple enough, so what’s all the fuss about?

As mentioned above, NDAs are incredibly common and used in a wide variety of situations, ranging from complex corporate takeovers to short-term collaborations. But despite their ubiquitous nature and seemingly straightforward terms, it would be a mistake to assume that these are simple contracts. 

It is rare for the parties entering the agreement to have perfectly equal bargaining power. Due to an imbalance of money, expertise, resources or even reputation, one of the parties involved will almost always be able to exert more influence over the other. This inherent imbalance can lead to the creation of NDAs which grant – or limit – rights in an unfair or improper way.

Entrepreneurs may think that an NDA adequately protects their valuable information when it is divulged to a potential investor. But unless the definitions and obligations are sufficiently locked down, little may prevent the investor from stealing the entrepreneur’s ideas.

Similarly, some unscrupulous companies may attempt to force their employees to enter into NDAs in an attempt to prevent whistleblowing or discrimination lawsuits. Matters can become very complex when an individual who has a grievance against a powerful boss is threatened with dismissal or further harassment, unless they sign an NDA. Moreover, a new common extension of NDAs is the inclusion of a “non-disparagement” clause. This goes beyond the protection of confidential information, and requires employees to never speak negatively about their employer or former employer.

In both the United States and the United Kingdom, lawmakers and courts have begun to establish clearer boundaries about the enforceable scope of NDAs. In the court of public opinion, powerful individuals who weaponise NDAs in an attempt to stifle access to justice, impair free speech and limit creativity are already losing. Regardless of the reason for entering a NDA, you owe it to yourself to ensure the document is checked first by a lawyer, and that your rights – and remedies – are adequately protected. 


“The Wife” and rights of attribution: an intellectual property perspective

“The Wife” and rights of attribution: an intellectual property perspective


In The Wife, Glenn Close plays Joan Castleman, the steadfast and amenable wife of celebrated novelist Joseph Castleman. But when Joe wins the Nobel Prize in Literature, things start to unravel between them. Is there more to Joan’s support than meets the eye? In this post, I consider the merits of a hypothetical intellectual property dispute between the couple, and an often-neglected right in particular.

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The Wife is a 2018 film from Swedish director Björn Runge, starring Glenn Close and Jonathan Pryce. The script by Jane Anderson is based on Meg Wolitzer’s novel of the same name.


We first meet Joan Castleman – The Wife – the evening before her husband, celebrated novelist Joseph Castleman, wins the Nobel Prize in Literature. Praise and adoration for Joe’s prolific and highly acclaimed body of work are subsequently lavished upon him, while Joan and their two children watch on. But when the family arrives in Stockholm for the award ceremony, we begin to realise that Joe Castleman’s success rests on secrets and sacrifices.

Through the use of flashbacks to the 1950s and 1960s, we learn that Joan was a promising writer. While at college, her then-professor Joe Castleman encourages her writing, and the two eventually become romantically involved. But Joe is not content with merely lecturing about novels: he seeks to prove himself in the literary world as an author himself.

During a heated argument about his poorly written first attempt at a novel, Joe threatens to leave Joan. Desperate to keep him happy and aware of his deep desire for publication, Joan offers to “fix” Joe’s draft. Her amended version of The Walnut is published under Joe’s name, and becomes a literary sensation. For the next forty years, Joan continues to write as Joe gets all of the credit.

In Stockholm, Joan revisits The Walnut and considers the personal sacrifices she’s made in her marriage.

What makes The Wife so delicious to watch is the way in which Joan’s character transforms and gains a sense of agency. Having grown up in the sexist environs of mid-century America, Joan at first appears to have dutifully accepted her fate as an ignored, pushed-aside woman whose only roles have been “wife” and “mother.” The announcement of “Joe’s” Nobel Prize in 1996 serves as a catalyst, and through a series of small events Joan eventually gathers momentum and power – like a storm – to unleash her torrential anger. The Roger Ebert review perhaps puts it best, noting that Glenn Close’s Joan “undergoes a quietly powerful transformation from self-deprecating spouse to fiery force of nature.” The film ends on an uncertain yet quietly optimistic note, and we get the sense that Joan will reveal the truth – not only to her family, but to the public – in due course.

As I left the cinema, I found myself ruminating over Joan’s legal position. As the author of the novels, would she stand a chance at winning a copyright lawsuit?

Copyright arises automatically in original works of authorship fixed in a tangible medium of expression. This means that from the moment an author expresses something unique in a tangible way – for example, by writing it down using a typewriter – the author obtains an intellectual property right in the work.

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A young Joan (played by Glenn Close’s daughter Annie Starke) supports her husband Joe in his literary ambitions (played by Henry Lloyd).

It’s pretty clear from the story that Joe did infringe Joan’s intellectual property. Unfortunately for Joan, even if she wanted to bring some sort of copyright lawsuit against her husband Joe, is is doubtful that she would win. Whereas a “negative defense” seeks to factually disprove an element of the plaintiff’s case, an “affirmative defense” defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.

Put simply, in my imagined Castleman copyright lawsuit scenario, Joe’s lawyers could admit that Joe stole Joan’s work, but argue that he’s innocent in the eyes of the law. Here are three ways in which this could be possible:

  • Firstly, a lawsuit for copyright infringement must typically be filed within the applicable limitation period. The US Copyright Act requires a civil lawsuit to be filed within three years after the infringing action occurred. As such, a copyright lawsuit concerning Joan’s older novels would be practically impossible.
  • Secondly, Joan’s conduct may evidence acquiescence, or consent. This means that Joan knowingly watched Joe infringe her IPRs, but failed to raise any objection to the infringement at the time. In some instances, silence or inaction can be a form of “inferred consent.”
  • Thirdly, if Joe can prove that he infringed Joan’s copyright believing in good faith that he was entitled to do so, estoppel could apply. “Estoppel” as a term might not known by many non-lawyers, but the fundamentals are rather straightforward: a court may prevent (estop) a person from making assertions or from going back on her word, thereby preventing unconscionable conduct.


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While working on a definitive biography of Joe Castleman, author Nathaniel Bone (played by Christian Slater) discovers some striking discrepancies in Joe’s writing style.

Nevertheless, Joan’s cause is not a hopeless one. As evidenced by Joan’s emotional attachment and identity tied to her novels, literary and artistic work often mean much more than just the economic value they can generate. The creations can be very special to the person who first produced them, and often speak to immense emotional and intellectual effort. As a result, copyright works can be protected in ways that are different to traditional forms of property.

Moral rights are a type of non-economic rights which are considered personal to an author, in that they are inalienable and fundamental to the individual. Even if an author assigns the intellectual property rights to her novels to a third party, she will still maintain the moral rights to the work.

Chief among the moral rights is the right of attribution, which is the right of an author to be credited as the author of a work in question. Moral rights have a long history in international copyright law, and are set out in the Berne Convention for the Protection of Literary and Artistic Works, which governs international copyright law:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honor or reputation.

Moral rights are well established in European legal systems, especially in French and German law. By contrast, moral rights in the United States have been somewhat neglected, as American law traditionally puts more significance on protecting economic interests. This has been changing in recent years however. In 2017, the US Copyright Office commenced a study to review how existing American law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity.

The laws which govern intellectual property rights have been forced to change in the face of challenges posed by the internet, disruptive technologies and an increasingly mobile population. Might moral rights be next on the agenda for American copyright reform? For Joan Castleman at least – whose conflict focuses almost entirely upon her identity and recognition as a writer – it’s easy to see why moral rights could be so important.

Brexit: Questions and Concerns

Part Two

I’ve attempted to set out the very basics of Brexit in a (currently) three-part guide designed for those who may not be aware of some of the history and context.  In Part One of my series, I set out the basics of what the EU is, and why the United Kingdom is set to leave. This Part Two explores some (but not all!) of the main issues and concerns that have complicated or otherwise stalled the negotiations. Part Three will explain why I think Americans should care about Brexit.

There are many issues that have complicated or otherwise stalled the negotiations. Just some of the big concerns and questions are set out below.


The border between Northern Ireland
and the Republic of Ireland.

Despite sharing the island of Ireland, Northern Ireland is part of the United Kingdom, whereas the Republic of Ireland has been an independent country since 1937.

As a relative newcomer to the UK, I didn’t grow up learning about – of being impacted by – the Northern Ireland conflict. Also known as “The Troubles,” the violence over the constitutional status of Northern Ireland spanned thirty years (1968 – 1998). But despite not knowing all of the details myself, I know enough to appreciate that the open border that was negotiated as part of the Good Friday Agreement (GFA) is really important.

As I explained in Part One of my Brexit series, the are no physical borders between EU countries. But the reason there is an open (soft) border between Northern Ireland and the Republic of Ireland isn’t just because of EU rules: it’s been open since 1998 because that’s what was agreed in ending decades of violence in Ireland.

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The Republic of Ireland is shown in yellow, as is mainland Europe. These countries are in the European Union. The United Kingdom, which comprises Northern Ireland, Scotland, Wales and England, is shown in light blue.

Brexit will effectively make the border between the Republic and Northern Ireland an “external EU border.” What complicates things is that the Irish government, the UK government, and EU representatives have all stated that they do not wish for a hard border, due to its sensitive nature. To avoid major chaos ahead of the March withdrawal, The EU proposed a “backstop agreement” that would put Northern Ireland under a bespoke range of EU rules in order to avoid the need for border checks.

But this backstop has been opposed by the British government as it would essentially mean different rules apply to different parts of the United Kingdom. This has reignited the question of allowing Northern Ireland to leave the United Kingdom to reunite with the Republic of Ireland.

Northern Ireland as a whole voted 56% in favor of remaining in the EU. Recent polling suggests that 52% of voters in Northern Ireland said they would support a united Ireland outside Britain if it leaves the EU.


Scottish Independence

It is not only Northern Ireland which poses a serious long-term threat to the UK’s territorial and constitutional unity because of Brexit. Scotland – which unified with England in 1707 after centuries of warfare between the two countries – is also toying with the idea of leaving the UK.

Scotland was the jurisdiction most in favor of remaining within the EU, with 62% voting remain. However, it’s important to remember that only two years earlier, Scotland had a “leave or remain?” referendum of its own – but in respect to the United Kingdom. In 2014, 45% of Scots voted to leave the United Kingdom, while 55% wanted to remain. But now that the United Kingdom is leaving the European Union, some argue that Scotland must go its own way and become an independent country that could – at some point – rejoin the European Union on its own.

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The Flag of Scotland – called Saint Andrew’s Cross – has a blue background with a white diagonal cross. Here, the symbol of the EU – twelve gold stars – have been added to some of the flags as a symbol of Scottish-EU solidarity.

Financial Services

Financial services are a key industry in the United Kingdom, and the degree of inter-linkage between London and the EU economies is both economically substantial and intricate in terms of the legislative interface. The “passporting” system allow banks and finance companies to sell their services across the 28-member bloc with a local license, rather than getting a new license to operate in each member country where it does business. Put simply, banks established the UK can buy, sell and trade financial products across the EU with relative ease.

But Theresa May has already ruled out passporting after Brexit. Some of the world’s biggest banks have begun moving jobs out of London, and many question London’s future as a global financial center. Michel Barnier, the EU’s chief Brexit negotiator, has explained that Theresa May’s proposals for a new financial services regulatory framework “would violate the principle that access rights to the bloc’s financial services market are a gift from Brussels that can be freely withdrawn.”


Commodities and Critical Supplies from the Continent

If Brexit ends up creating regulatory and tariff barriers between the UK and the EU, customs checks and delays could severely hamper the import and export of commodities and critical supplies. Increased tariff and trade complications could disrupt supply chains and drive up operating costs, and the devaluation of the pound leads to higher prices.

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Dover is the nearest English port to France, at just 34 kilometres (21 mi) away. Port chiefs said a two-minute delay at Dover would lead to 17-mile tailbacks.

The UK imports 30% of its food from the EU, most of which is fruit, veg, and meat.  Likewise, as explained by The Guardian, many of the pharmaceutical factories that supply the UK are elsewhere in Europe. Getting medicines to pharmacies and hospitals is a complex process, and if European supply chains are disrupted, there could be shortages.  Ministers have therefore drawn up plans to send in the Army to deliver food, medicines and fuel in the event of shortages if Britain crashes out of the EU without a deal.


Expats and the End to Freedom of Movement

For both non-UK Europeans living in the UK and UK citizens living elsewhere in Europe, Brexit means uncertainty about residence, pensions, healthcare, and much more. Will these expats need to apply for visas or citizenship? If so, by when? While the EU has published a guide “to help EU citizens make their own decisions about their current situation in the UK in light of Brexit,” many questions still remain.

Currently, 3 million EU citizens live in the UK and 1 million Brits live in other EU countries. These expats stand to lose all automatic rights and protections overnight, which is a deeply upsetting prospect for many. For example, British expats enjoying their retirement on the Continent could stop receiving UK private pension and insurance payments as UK providers lose the authority to transact within the EU. There is also no official word on the process that EU citizens will need to go through here in the UK, to secure or even apply for permanent residency.


The National Health Service

The National Health Service is revered as a national treasure. Much like a child in a custody battle between divorcing parents, the NHS has been used by both sides of the Brexit debate.

On the side of leaving the EU, Vote Leave claimed that the UK sends £350m ($460m) each week to the EU. Online and at other Vote Leave events, the slogan explicitly read “Let’s give our NHS the £350 million the EU takes every week.”

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Vote Leave’s now-infamous “Brexit Bus” which was championed by former Mayor of London/Foreign Secretary Boris Johnson.


Those who support(ed) remaining in the EU pointed to the fact that the NHS relies on EU staff. Although a majority of NHS staff in England are British, a substantial minority are not. Around 63,000 out of 1.2 million staff are from elsewhere in the EU, with the most represented nationalities being Irish, Polish, and Portuguese.

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Elisabetta Zanon, director of the NHS European Office, has laid several other key potential Brexit implications for the NHS over at Kings College London’s UK and EU website. One that stuck out to me in particular is that UK health organisations are one of the largest beneficiaries of EU health research funds in Europe, with €760 million ($875 million) in EU funding having supported research in the UK between 2007 and 2013. The NHS has benefited from this funding, as well as from EU collaboration in clinical research more generally. What is the scope for continued European investment for medical research?


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Jaguar F Type convertible 😍  Photo by Alex Howe

Manufacturing and Motorsport

Petrol heads around the world know that the Britain is famous for its premium and sports car heritage, and is home to Aston Martin, Bentley, Daimler, Jaguar, Land Rover, Lotus, McLaren, MG, Mini, and Rolls-Royce… to name a few.

But might the auto industry go “extinct” because of Brexit? Land Rover recently announced plans to move some production to Slovakia and Honda has admitted a no-deal Brexit would cost millions of pounds. Additionally, EU regulations require that at least 55% of automotive parts must come from within the EU, which could mean suppliers in the UK are abandoned.


Stranded on an Island

When the UK leaves the EU, it will also leave the single aviation market, which is the regulatory basis for flights in and out of the country at the moment. This impacts not just flights to the EU itself, but to other countries with which the EU has a deal, including the United States. Accordingly, planes leaving the UK could be prevented from using Irish airspace, as the UK’s post-Brexit default trade status under the World Trade Organization does not include commercial travel rules.

Heathrow airport has raised nearly £1 billion ($1.3 billion) in debt to keep it going through a “worst-case scenario” following a hard Brexit. The operator the airport itself has also announced it will move its international HQ from the UK to Amsterdam as a result of Britain leaving the EU. Although a spokesman for British Airway’s parent company stated “we are confident that a comprehensive air transport agreement between the EU and UK will be reached,” Ireland-based RyanAir “believes that the risk of a hard (no-deal) Brexit is being underestimated.” Speaking of airports, there are also growing concerns about those infamous passport queues at Heathrow getting even worse.

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Currently, UK and EU passport holders go through the same expedited passport queue. This will change after Brexit.

Politics and Personalities

Of course, in addition to policy debates, there are also political clashes that may stall or otherwise derail Brexit. These include infighting amongst different factions of the Prime Minister’s Conservative Party, which may threaten Theresa May’s continued leadership.

In a long-read profile of the Prime Minister for the New Yorker, it was posited that Theresa May faces an impossible situation, with populist demands on one side, practical realities on the other and no way to truly reconcile both. “May’s best hope has been to contain the damage on all sides.”

Unfortunately, the British government remains almost exclusively focused on Brexit. “The country — as an administrative entity — has virtually stopped working,” explained Businessweek.

There are also substantial questions about the legitimacy of the referendum itself. The vote was not legally binding, and potential Russian interference with the Vote Leave campaign has also come to light. People’s Vote, a campaign group calling for a public vote on the final Brexit deal, is also gaining in popularity.

For now though, Brexit does appear to be plowing forward, if a bit unsteadily. But it would be unwise to forget that considerable challenges – only a few of which have been mentioned above – still lie ahead.


Coming soon: Why Should Americans Care About Brexit? 



Brexit: An Introduction for Americans

Part One

I’ve attempted to set out the very basics of Brexit in a (currently) three-part guide, made for those who may not be aware of some of the history and context. In particular, this has been written with Americans in mind. Why? Because as a UK resident, I know Brexit will impact me. But as an American myself, I think Americans should know (and hopefully care) about Brexit, too. 

In Part Two of my series, I set out some of the main issues and concerns that have complicated or otherwise stalled the negotiations. Part Three will explain why I think Americans should care about Brexit.



What is the European Union?

What we now call the European Union was first a coal and steel partnership between France, Germany, Italy, Belgium, the Netherlands, and Luxembourg after World War Two. The philosophical foundation centered on the idea that trade and economic interdependence lessens the risk of armed conflict.

What began as a purely economic trading bloc has  developed into a unique economic and political partnership involving 28 European countries. Importantly, countries of the European Union (known as Member States) benefit from access to the Single Market, which allows goods, services, labor (workers) and capital to move freely between countries without tariffs or borders.


So, is the European Union like America, and the member countries are like “States” ?

On the surface, perhaps. You can travel across national borders in the same way you can travel across state lines. Likewise, thanks to the single market, commodities and services can flow between countries, without being subject to tariffs or other trade frictions. Within the 19 countries of the Eurozone, you can even use the same currency. But remember: the EU is a political system, not a country.

As a political science student in university, I had Max Weber’s definition of a nation state drummed into my head: “a human community that (successfully) claims the monopoly on the legitimate use of force within a certain geographical territory.” The EU does not have the power of coercion through police and security forces: this power still belongs to the individual member states. The EU relies on member states to enforce laws and policies, and discretion is permitted in certain areas, including national security.

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This map (via BBC) shows the current Member States, and their date of joining the EU. Croatia joined most recently, in 2013.


What are the branches of EU government,
and who is in charge?

The EU doesn’t have a President or Prime Minister in the traditional sense. Rather, four institutions work together to run the EU and handle policies ranging from agriculture, environment, health, trade, foreign relations, security, justice and migration.

  • European Council – represents the governments of the individual member countries. The Council sets the EU’s overall political direction, but has no powers to pass laws. The President of the Council is currently Donald Tusk. He is the principal representative of the EU on the world stage.
  • The Commission – also known as the “guardian of the treaties,” the Commission promotes the interests of the EU as a whole.
  • Parliament – represents the EU’s 510 citizens and is directly elected by them.
  • European Court of Justice – the ECJ is the supreme court of the European Union in matters of European Union law. It is composed of one judge per member state – currently 28 – although it normally hears cases in panels of three, five or 15

Although there is no “Capital of Europe,” Brussels in Belgium is home to three of the four key institutions (the ECJ is based in Luxembourg) and is somewhat of an “informal” capital.


Why is the United Kingdom leaving the EU?

A referendum was held on Thursday 23 June, 2016, to decide whether the UK should leave or remain in the European Union. Leave won by 51.9% to Remain’s 48.1% (see a detailed breakdown of the results here). More than 30 million people voted, representing nearly 72% of eligible voters and 46% of the UK population.

To put this figure in perspective, In the United States, roughly 55% of eligible voters and 42% of the population voted in the 2016 Presidential elections.

Was the Brexit referendum question flawed in its design?

Some have lamented the fact that EU citizens living the UK were excluded from voting, as were 16 and 17 year olds. Also worth noting is that England and Wales voted in favor of Brexit, whereas Scotland and Northern Ireland backed staying in the EU. This has led to further questions on democratic legitimacy and the possibility of the Union breaking apart, as discussed below.


Whose idea was this?

The United Kingdom, generally speaking, has had a love-hate relationship with the ideas of a “united Europe” and an “ever closer union” for decades. However, relations have deteriorated considerably over the last ten years. The 2008 global financial crisis, the subsequent Eurozone crisis, an influx of immigrants and refugees, terrorism, and social malaise brought concerns about the relative merits of EU membership into the mainstream political debate.

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Nigel Farage

Perhaps no other political movement was as vocal about the UK leaving the EU than The UK Independence Party, a right-wing Eurosceptic populist party. Colloquially known as UKIP (“you-kip”), the party was led at the time by Nigel Farage – whom you may have seen campaigning next to Donald Trump or appearing on Fox News as a commentator.

To quell infighting within his Conservative Party, and to satisfy voters contemplating leaving the Conservative Party for UKIP over the EU question, Prime Minister David Cameron decided to hold the referendum. He supported the UK remaining in the EU, and although he didn’t have to, he resigned the morning of the referendum announcement.

Interestingly, despite campaigning for Remain and stating that “the UK has made a mistake in leaving the European Union,” Cameron insists that “calling a referendum was the right thing to do.

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David Cameron resigned as Prime Minister when the referendum results were announced. Although Cameron campaigned to remain within the EU, “the British people made a different decision to take a different path. As such I think the country requires fresh leadership to take it in this direction.”

After the Referendum Vote,
was the UK declared free from EU rule?

Put simply, no. In order to leave the EU, there are a few legal procedures that must be followed (including the triggering of Article 50, addressed below). Furthermore, when the UK leaves the EU, it will also leave the framework of rules and regulations that govern an incredibly wide spectrum of policy areas. The UK still needs to figure out what sort of relationship it wants to have with its neighbors.

Practically speaking, it really is like a divorce. If normally can’t just sign the paperwork one day and be done with the other spouse forever. You need time to discuss what happens with your house, cars, and other assets, as well as your liabilities like the mortgage, credit card debt and little Henry’s school tuition. You also need to decide what your future relationship will look like.


Why is there a deadline of March 2019?

After the Referendum Vote and Cameron’s resignation, fellow Conservative Party politician Theresa May became Prime Minister.  In March 2017 – nine months (and quite a few legal battles) after the vote – her government “triggered Article 50” of the Treaty of Lisbon. Although Article 50 is only five paragraphs long, this now-famous provision sets out (inter alia) that:

  1. any EU country may decide to quit the EU;
  2. the exiting country must negotiate its withdrawal with the EU;
  3. there are two years to reach an agreement (unless everyone agrees to extend it) and;
  4. the exiting country cannot take part in EU internal discussions about its departure.

The date of 29 March 2019 is therefore important, because it marks two years from the date of the UK’s invoking of Article 50 – the deadline mentioned at paragraph 3.

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What’s behind the smiles? Brexit Secretary Dominic Raab (left) shakes hands with Michel Barnier, a French politician serving as the EU’s Chief Negotiator for Brexit.

So what’s happening now?

This is certainly a busy time for politicians, lawyers, lobbyists and concerned citizens. Negotiations about future relations between the UK and the EU are taking place now, in an attempt to reach an agreement as soon as possible.

In July 2018, Theresa May unveiled her cabinet’s official view of a proposed Brexit deal – known as the Chequers Plan. But European Council President Donald Tusk rejected the Chequers plan at an EU summit in Salzburg last month, leading to increased speculation that the UK could leave the EU without a deal.

Meanwhile, calls to hold a “People’s Vote” to allow the British people to have a “final say on Brexit” are gaining momentum. More than 100,000 people are estimated to attend the biggest Brexit protest to date on Saturday, 20 October.

Speaking at a press conference yesterday (16 October), Tusk admitted that he has “no grounds for optimism before tomorrow’s European Council on Brexit. As I see it,” he continued, “the only source of hope for a deal for now is the goodwill and determination on both sides.”

Up Next: Are we there yet? The key questions and concerns complicating the Brexit negotiations


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