Digital Commons Network^™

One Test To Rule Them All: Retiring The Dual Standard For Fictional Character Copyrightability In The Ninth Circuit, Kiersten Daly

St. John's Law Review

(Excerpt)

From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value …

A Potential Status Update For The Visual Artists Rights Act: The Role Of Social Media Response In Judicial Analysis Of Recognized Stature, Olivia Calamia

St. John's Law Review

(Excerpt)

In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a …

Protecting Fair Use From Algorithms, Internet Platforms, And The Copyright Office: A Critique Of The § 512 Study, Mary Kate Sherwood

St. John's Law Review

(Excerpt)

In 1994, the Supreme Court of the United States held that a musical group’s parody of a well-known song could be fair use, which is a noninfringing use of copyrighted content. In 2006, the Second Circuit found that an artist’s use of copyrighted photographs in his own artwork constituted fair use. In 2016, the Ninth Circuit found that a video of a child dancing to a short clip of a copyrighted Prince song could be fair use. But in 2022, a creator who attempts to share her fair use of copyrighted material online may not have recourse to the …

So You Want To Be An Author: A Comparative Analysis Of The Authorial Rights Awarded To Performers, Daniel Gomez

St. John's Law Review

(Excerpt)

In his classic 1980 song “On the Road Again,” Willie Nelson articulates that “the life [he] love[s] is making music with [his] friends.” This affinity for the life of a traveling performer likely has little to do with his authorial rights under the Copyright Act. However, as this Note demonstrates, Mr. Nelson indeed benefited from favorable authorial rights when compared to other types of performers, beyond the rights he acquired as the song’s writer. Specifically, the current law around the default authorial rights of performers provides greater protection to performers of sound recordings than it affords to visual and …

Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick

St. John's Law Review

(Excerpt)

This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves …

"The Song Is Ended But The Melody Lingers On": Protecting The Cultural History Of The Great American Songbook In The Face Of The Public Domain, Mollie Galchus

St. John's Law Review

(Excerpt)

Part I of this Note discusses the history of American popular song from the late nineteenth century to the mid-twentieth century, showing how the music of the Great American Songbook is particularly monumental in that its sophistication and conglomeration of different musical influences created a unique American musical framework. Part II discusses the framework of music copyright law, including theories of music copyright law, the evolution of the length of music copyright terms in the United States, and the history of the CTEA. Part III argues that Congress should not extend the duration of music copyright now that the …

In Lieu Of Moral Rights For Ip-Wronged Music Vocalists: Personhood Theory, Moral Rights, And The Wppt Revisited, Tuneen E. Chisolm

St. John's Law Review

(Excerpt)

The Introduction of this Article has identified some of the noneconomic harms of concern. Part I summarizes and compares copyright ownership, control, and existing protections for authors of music compositions and sound recordings under the Copyright Act. It also summarizes pertinent music industry practices that impact third party use of recorded vocalist performances. Part II provides a foundation for understanding the nature of legal protections for creative works and the philosophical underpinnings of copyright law and moral rights, comparing utilitarianism and natural rights theory to personhood theory. It also provides a brief explanation of moral rights. Part III looks …

Human Development As An Intellectual Property Metric, J. Janewa Osei-Tutu

St. John's Law Review

(Excerpt)

This Essay argues that human development should be adopted as a metric for IP because it is a useful and relevant metric, and one that can be invoked under both the natural rights and utilitarian frameworks. Metric, as used here, refers to a method for measuring the effects of IP laws.

Part I of this Essay will provide a brief overview of some of the reasons for the dissatisfaction with current IP law before making the connection between IP and human development in Part II. Part III explains how human development can be adapted as a metric for IP …

What Is Ip For? Experiments In Lay And Expert Perceptions, Gregory N. Mandel

St. John's Law Review

(Excerpt)

This Essay develops in three parts. Part I explores the incentives, natural rights, and expressive bases for IP law as well as the implications of these bases for creators and users of IP works. Part II reports the results of several studies on IP perceptions among lay individuals and IP attorneys. Part III discusses the implications of the results for the functioning and the perceived legitimacy of the IP system.

Copyright And Cognition: Musical Practice And Music Perception, Olufunmilayo B. Arewa

St. John's Law Review

(Excerpt)

Beyoncé’s release raises questions concerning the adequacy of common narratives about the music industry, consumers, and creators in the digital era, as well as dominant assumptions about musical practice. Changing music industry digital era landscapes also have implications for intellectual property frameworks, which touch upon many aspects of industry practice in addition to consumer and creator access. Many have emphasized the threat of unauthorized uses to argue for stronger intellectual property protection. This Essay uses current digital era debates about music creation and consumption as a starting point to consider underlying dominant assumptions about musical practice and the implications …

The Copyright Protectability Of Architectural Works: The Eleventh Circuit Walks A Thin Line, Thomas Commons

St. John's Law Review

(Excerpt)

Part I of this Note discusses the history of copyright legislation in the United States regarding architectural works, as well the applicability of copyright law generally. Part II discusses the circuit split between the Eleventh and Second Circuits with regard to how much protection architectural works should be afforded. Part III analyzes the benefits and shortcomings of both approaches and how other courts should ultimately adopt the Second Circuit’s approach. This Note argues that the Second Circuit’s approach is supported not only by statutory language and legislative history, but also by public policy and constitutional considerations, as well.

Transformativeness In The Age Of Mass Digitization, Marie-Alexis Valente

St. John's Law Review

(Excerpt)

This Note examines and ultimately argues against the expansion of transformativeness in verbatim-copying cases, given the implications it will have as more copyrighted works are digitized. Part I discusses the background and objectives of the Copyright Act, the fair use exception, and the rise of the transformativeness subfactor. Part II provides a summary of some predigitization fair use cases to establish some basic principles about how courts have ruled on transformativeness. Part III examines relevant cases recently decided on the question of transformativeness in the context of mass digitization. Part IV critiques the ways courts have arrived at their …

Copyrightability Of Leed-Certified Buildings: Approaching The Awcpa To Promote Green Architecture, Stephen Accursio Maniscalco

St. John's Law Review

(Excerpt)

Part I of this Note discusses green architecture, the history and structure of the LEED certification system, and the history and structure of the AWCPA. Part II discusses the approaches courts have taken in applying the AWCPA. Finally, Part III explores ways that LEED may affect courts’ analyses. It explains why and how courts may deny copyright protection in many elements of LEED-certified architectural works. It then proposes a reading of the AWCPA that will provide appropriate copyright protection to green buildings that are original in design. This Note argues that courts should not consider green market demands, the …

Values, Questions, And Methods In Intellectual Property, Jeremy N. Sheff

St. John's Law Review

(Excerpt)

Intellectual property (“IP”) scholarship has a unique distinction among legal academic disciplines: some of its practitioners question whether the subject of their study ought to exist. We should pause to consider how remarkable this is. Constitutional law scholars usually do not question whether political communities should be governed by constitutions. Criminal law scholars generally accept that the state ought to be able to define and punish crimes. Contract law scholars do not question that some promises should be enforceable in court. To be sure, in each of these disciplines there are hotly debated questions over the appropriate scope and …