Digital Commons Network^™

Determining The Extent Of The Work For Hire Doctrine And Its Effect On Termination Rights, Allison E. Dolzani

Touro Law Review

No abstract provided.

Overlapping Copyright And Trademark Protection: A Call For Concern And Action, Irene Calboli

Faculty Scholarship

In this Article, I tackle a controversial topic-the overlapping trademark and copyright protection that can apply to creative works such as fictional characters, pictures, video clips, and songs. In particular, I highlight the possible negative consequences that granting trademark protection to these works-concurrently or after the expiration of copyright protection- can have on the societal bargain upon which copyright protection is built and justified. To date, scholars have only limitedly addressed these consequences, and more academic attention is needed in this area. In contrast, the advantages of trademark rights in creative works (in their entirety or in separated features of …

“Can I Profit From My Own Name And Likeness As A College Athlete?” The Predictive Legal Analytics Of A College Player’S Publicity Rights Vs. First Amendment Rights Of Others, Roger M. Groves

Roger M. Groves

Two federal court decisions during 2013 have changed the game for college students versus the schools, the NCAA and video game makers. This article explores whether for the first time in history these athletes can profit from their own name and likeness and prevent others from doing so. But those cases still leave many untested applications to new facts – facts that the courts have not faced. Particularly intriguing is how 21st Century technology will apply to this area in future litigation. No publicity rights case or article to date has explored the application of predictive analytics, computer programs, algorithms, …

The Jurisprudence Of Transformation: Intellectual Incoherence And Doctrinal Murkiness Twenty Years After Campbell V. Acuff-Rose Music, Matthew D. Bunker, Clay Calvert

Duke Law & Technology Review

Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key …

The Fairest Of Them All: The Creative Interests Of Female Fan Fiction Writers And The Fair Use Doctrine, Pamela Kalinowski

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Do Androids Dream Of Electric Free Speech? Visions Of The Future Of Copyright, Privacy And The First Amendment In Science Fiction, Daxton R. Stewart

Daxton "Chip" Stewart

Science fiction authors have long projected the future of technology, including communication devices and the way in which future societies may use them. In this essay, these visions of future technology, and their implications on the future of media law and policy, are explored in three areas in particular – copyright, privacy, and the First Amendment. Themes examined include moving toward massively open copyright systems, problems of perpetual surveillance by the state, addressing rights of obscurity in public places threatened by wearable and implantable computing devices, and considering free speech rights of autonomous machines created by humans. In conclusion, the …

A New First Amendment Goal Line Defense – Stopping The Right Of Publicity Offense, Mark Conrad

Mark A. Conrad

The use of images with the recognizable features of former NCAA student-athletes by a digital video firm has resulted in two highly publicized lawsuits by former college players claiming violations of their right of publicity. Thus far, two federal appeals courts – the Third Circuit in Hart v. Electronic Arts and the Ninth Circuit in Keller v. Electronic Arts -- have refused to dismiss their claims, concluding that the use of the player images constitute a valid cause of action. While their actions have garnered sympathy among the public and many scholars, it is the author’s contention that both lawsuits …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

Copyright Termination And Technical Standards, Jorge L. Contreras, Andrew T. Hernacki

University of Baltimore Law Review

Technical standards, which enable products manufactured by different vendors to work together, form the basis of the modem technological infrastructure. Yet an obscure provision of the U.S. Copyright Act, enacted to allow authors and composers to profit from the later success of their works, now threatens to disrupt this critical technological ecosystem. Enacted in 1976, Section 203 of the Copyright Act permits the author of a copyrighted work to revoke any copyright license or assignment between thirty-five and forty years after the grant was made. For grants made in 1978, the first year to which Section 203 applies, terminations could …

Does Cariou V. Prince Represent The Apogee Or Burn-Out Of Transformativeness In Fair Use Jurisprudence? A Plea For A Neo-Traditional Approach, Kim J. Landsman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Quiet On Set! We Have A Trademark To Sell, Brittany Robbins

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Authorship Atomized: Modeling Ownership In Participatory Media Productions, Elisabeth S. Aultman

UC Law SF Communications and Entertainment Journal

The aim of this article is to posit a solution, grounded in legal realism, for the practical issues that arise when copyright law and content monetizers encounter a work (or perhaps more accurately, a series of interdependent works) with an unprecedented number of people who could ostensibly assert authorship over some element of the content.

Taming The "Frankenstein Monster": Copyright Claim Compatibility With The Class Action Mechanism, Renee G. Stern

Kernochan Center for Law, Media, and the Arts

In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote:

Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities .... Thus, accumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.

Judge Stanton went on to characterize the case as a “Frankenstein monster posing as a class action” …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Scholarly Works

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies.

However, many of these copyright owners can take advantage of a …

Intellectual Property Geographies, Peter K. Yu

Faculty Scholarship

Written for a special issue on intellectual property and geography, this article outlines three sets of mismatches that demonstrate the vitality, utility and richness of analyzing intellectual property developments through a geographical lens. The article begins by examining economic geography, focusing on the tensions and conflicts between territorial borders and sub-national innovation (including those relating to obligations under the WTO TRIPS Agreement). This article then examines the oft-found mismatch between political geography and cultural geography. Illustrating this mismatch is the challenge of protecting traditional knowledge and traditional cultural expressions. The article concludes by exploring the growing mismatch between legal geography …

The Consistently Inconsistent "Instance And Expense" Test: An Injustice To Comic Books, 14 J. Marshall Rev. Intell. Prop. L. 91 (2014), Thomas Deahl Ii

UIC Review of Intellectual Property Law

Joe Simon once said that “we always felt, we wuz robbed.” He is not alone. This article will discuss Jack Kirby’s estate’s case against Marvel and how the current state of the law robs creators of the rights to their own works. The evaluation of case law will show that the application of the ‘instance and expense’ test creates an injustice of inconsistent results in litigation, where creators attempt to regain control of their works. If the court continues to inconsistently apply the law to these work-for-hire cases, then the Supreme Court or Congress needs to address the intended purpose …

“I’M A Lawyer, Not An Ethnographer, Jim”: Textual Poachers And Fair Use, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This short article, written for a festschrift for Henry Jenkins, discusses the influence of his work on media fandom in legal scholarship and advocacy around fair use.