Digital Commons Network^™

Rembrandt’S Missing Piece: Ai Art And The Fallacies Of Copyright Law, Eleni Polymenopoulou

Washington Journal of Law, Technology & Arts

This article discusses contemporary problems related to Artificial Intelligence (AI), law and the visual arts. It suggests that the fallacies of copyright law are already visible in legal conundrums raised by AI in the creative sector. These include, for instance, the lack of uniformity in relation to creations’ copyrightability, the massive scale of copyright infringement affecting visual artists and the creative industry, and the difficulties in implementing media regulation and cyber-regulation. The deeply cherished ‘human authorship’ criterion that was sustained recently by a US Federal Appeals Court in Thaler, in particular, is a short-term solution to the legal challenges …

Reinventing The Silver Screen… Again: The Copyright Licensing Implications Of Using Video Game Technology For Virtual Production On Film And Tv Sets, Nicholas M. Medellin

UC Law SF Communications and Entertainment Journal

No abstract provided.

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Journal of Law, Technology, & the Internet

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

To Mint Or Not To Mint: Non-Fungible Tokens And The Right Of Publicity, Hannah Bobek

Fordham Law Review

Non-fungible tokens (NFTs) allow for authentication and ownership of digital assets, which are notable features in the virtual world given the infiniteness of internet content. The emergence of this novel technology, however, has raised challenges, especially regarding enforcement of the right of publicity. This Note addresses how litigators have approached right of publicity violations arising from NFTs and how courts might respond to future violations that this technology is capable of facilitating. Legal scholars and commentators argue that certain features of NFTs pose pronounced threats to the right of publicity, namely the technology’s novelty, democratized nature, anonymization of creators, transferability …

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 …

Never Tell Me The Odds: How To Avoid Infringement When Alluding To Copyrighted Works In Branding, Paul M. Matenaer

Chicago-Kent Journal of Intellectual Property

Alluding to copyrighted works in branding is common, especially among small businesses that tend to fly under the radar of the large corporations which own those copyrights. The craft beer industry, for example, is fond of such allusions, incorporating references to movies, comic books, and video games in product names and beer labels. Whether to pay homage to the creative genius found in those copyrighted works or to cash in on popular enthusiasm for them, brand allusions to copyrighted works are common. However, such homages to copyrighted works can be as dangerous as flying into an asteroid field because they …

Copyrighting Brain Computer Interface: Where Neuroengineering Meets Intellectual Property Law, Favio Ramirez Caminatti

Cybaris®

No abstract provided.

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Creativity Without Ip? Vindication And Challenges In The Video Game Industry, Bj Ard

Washington and Lee Law Review

This Article intervenes in the longstanding debate over whether creative production is possible without exhaustive copyright protection. Intellectual property (IP) scholars have identified “negative spaces” like comedy and tattoo art where creativity thrives without IP, but critics dismiss these examples as niche. The video game industry allows for fresh headway. It is now the largest sector in entertainment—with revenues greater than Hollywood, streaming, and music combined—yet IP does not protect key game elements from duplication. Participants navigate this absence using non-IP strategies like those identified in negative-space industries: AAA developers invest in copy-resistant features while indie game developers rely on …

Tiktok The Musical: Copyright Issues Raised By The "Ratatouille" Musical, Paige V. Gagliardi

Washington Journal of Law, Technology & Arts

TikTok the Musical: Copyright Issues Raised by the “Ratatouille” Musical, explores the growing trend in derivative works and the failures of current copyright law to address it. This article asserts that while derivative works are excellent creative outlets, a safe haven in a tumultuous world, allowing appropriation of copyrights via the fair use doctrine conflicts with the foundations of copyright law. This article argues that IP giants such as the Walt Disney Company have sent a dangerous message to the general public by allowing the TikTok trend of the #ratatouillemusical to become an actual musical: that unlicensed derivative works …

Generic Ab Initio, James A. Heilpern, Earl Kjar Brown, William G. Eggington, Zachary D. Smith

Buffalo Law Review

From comic conventions to disbanded dioceses, courts continue to struggle with a unique but puzzling question of trademark law. Federal law protects certain terms that refer to a product or service from a specific producer instead of to a product generally. Terms that refer to products are considered generic and cannot receive protection. Courts have also held that a term that was generic at the time the party adopted the mark cannot receive protection, even if the public later views it as being specific to a particular producer. But, many marks were adopted decades or centuries ago. As a result, …

“Sorry,” But I Didn’T Release It: How The Court’S Analysis Of The Fair Use Doctrine In Chapman V. Maraj Protects Innovation And Creativity In The Music Industry, Samantha Ross

University of Miami Business Law Review

The fair use doctrine is an important affirmative defense to copyright infringement when a particular use does not interfere with copyright law’s primary goal of promoting creativity for the public good. Artists and songwriters frequently experiment with copyrighted music without permission before seeking licensing approval from the original rights holders to “sample” or “replay” the work. In Chapman v. Maraj—a copyright infringement suit brought by Tracy Chapman against Nicki Minaj—the United States District Court for the Central District of California held that experimenting with a copyrighted musical composition for the purpose of creating a new work with an intent to …

Crises And Compulsory Licenses: Crafting A More Equitable Work-For-Hire Regime For Comic Book Creators, Ron Eniclerico

Journal of Civil Rights and Economic Development

(Excerpt)

The history of comic books is plagued by notable instances of creators being excluded from the market value of their work. This tradition dates back to the creation of Superman, a character who was so successful that his exploits essentially led to the development of the modern comic book industry. Superman’s creators, Jerry Siegel and Joe Shuster, sold the rights to the character to D.C. Comics in 1938 for a mere $130 before Superman ever appeared in print. Nobody at the time could have known how popular Superman would become or that a media empire would be built around …

Cut! . . . Out Of Credit Arbitration The Case For Giving Hollywood Directors A Formalized Dispute Resolution Procedure For Conflicts Of Attribution, Madeline Giles

UC Law SF Communications and Entertainment Journal

No abstract provided.

A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray

FIU Law Review

The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate …

To Be Continued: How Comic Book Copyright Inequity Inspired Industry Innovation And Instilled Instrumentalities For Independence, Richard P. Metzroth

Connecticut Law Review

Before Superman first made the world believe a man can fly or Captain America greeted Hitler with a punch to the face, comic book publishers sought to exercise command over all the characters and stories that writers and artists put to paper. Until recently, this one-sided industry culture regarding ownership—reinforced by decades of court rulings in publishers’ favor—left creators with few avenues by which to retain control of their art. The legal norms that enforced creators’ subservient position in the comic book copyright ecosystem drove these authors to seek out and construct alternative systemsfrom which they could realize the benefits …

Nfts: The Latest Technology Challenging Copyright Law's Relevance Within A Decentralized System, Rebecca Carroll

Fordham Intellectual Property, Media and Entertainment Law Journal

Non-fungible tokens (“NFTs”) redefine society’s understanding of digital ownership and transform how creators distribute original works to consumers. This unique and often misunderstood technol- ogy has the potential to yield extraordinary value for both creators and consumers. While NFTs have existed for some time now, the recent frenzy caused by several high-value sales of NFTs exposed a number of unanswered legal questions, particularly in copyright law. NFTs also raise ideological concerns over how much, if any, government oversight and regulation should exist over the “open” internet. This Note explores copyright law’s application to NFTs and seeks to address a number …

Copyright And The Creative Process, Mark Bartholomew

Notre Dame Law Review

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

Cracking The Code: How To Prevent Copyright Termination From Upending The Proprietary And Open Source Software Markets, Grant Emrich

Fordham Law Review

Computer software is protected by copyright law through its underlying code, which courts have interpreted as constituting a “literary work” pursuant to the Copyright Act. Prior to including software as copyrightable subject matter, Congress established a termination right which grants original authors the ability to reclaim their copyright thirty-five years after they have transferred it. Termination was intended to benefit up-and-coming authors who faced an inherent disadvantage in the market when selling the rights to their works. In the near future, many software works will reach the thirty-five-year threshold, thus presenting courts with a novel application of termination to computer …

Dramaturgies Of Intellectual Property Law In Read-Write Theatre, Andrew Kircher

Dissertations, Theses, and Capstone Projects

Digital and networked technologies have intensified our relationship to knowledge: all the world’s information and creativity are so immediately and personally accessible that they become embodied. Into this moment, a new theatrical practice has emerged, what I identify as Read-Write Theatre (after Lawrence Lessig). In Read-Write cultural production, artists sample and speak through the full spectrum of disembodied data that is the internet—text, video, audio, and images. The artists I include in this critical category are marked by their posthuman relationship to knowledge and, most importantly, the ways that their theatrical work confounds contemporary intellectual property law.

In this dissertation, …

America's Broken Copyright Law: How Marvel And Sony Sparked Public Debate Surrounding The United States' "Broken" Copyright Law And How Congress Can Prevent A Copyright Small Claims Court From Making It Worse, Izaak Horstemeier-Zrnich

Cleveland State Law Review

Following failed discussions between Marvel and Sony regarding the use of Spider-Man in the Marvel Cinematic Universe, comic fans were left curious as to how Spider-Man could remain outside of the public domain after decades of the character’s existence. The comic community came to realize that Marvel was restricted in the use of its own character because of the Sonny Bono Copyright Term Extension Act of 1998 and the Supreme Court’s decision in Eldred v. Ashcroft. This realization sparked an online conversation regarding the United States’ lengthy copyright terms, and what many refer to as a “broken” copyright system. …

Enabling Science Fiction, Camilla A. Hrdy, Daniel H. Brean

Michigan Technology Law Review

Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor must describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair scientists, that are not suitable for the patent system.

This Article argues that, in fact, the literary genre of science fiction …

Copyright And The Creative Process, Mark Bartholomew

Journal Articles

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

The Blur Between Fact And Fiction: Should Trademark Protections Extend To Aspects Of Fictional Works?, 20 Uic Rev. Intell. Prop. L. 451 (2021), Sam Walker

UIC Review of Intellectual Property Law

No abstract provided.

Banksy: Artist, Prankster, Or Both?, Anna Tichy

NYLS Law Review

No abstract provided.

The Author And The Other: Reexamining The Doctrine Of Joint Authorship In Copyright Law, Tehila Rozencwaig-Feldman

Fordham Intellectual Property, Media and Entertainment Law Journal

Over the years, there has been an increase in the importance and prevalence of the joint authorship doctrine resulting from the internet evolution and globalization processes which allow quick sharing of content and information among various creators from around the world. The collaborations that increased and intensified during the COVID-19 pandemic occurred across a wide variety of creative areas. Today, many types of works such as songs, movies, software, and computer games are created regularly through joint authorship. However, current copyright law regimes relate to this complex and fascinating phenomenon in a limited way, leading to courts’ inconsistent interpretation of …

Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein

Touro Law Review

No abstract provided.

Copyright & Memes: The Fight For Success Kid, Cathay Y. N. Smith, Stacey Lantagne

Faculty Law Review Articles

This Article explores the complicated relationship between memes and copyright. Internet memes have become a ubiquitous part of social communications. They effectively express an idea, message, or sentiment, often more humorously and efficiently than words. Most memes evolved from original content that Internet users found online and copied, altered, shared, and imbued with new cultural and social meaning. Because memes frequently involve the unauthorized use, alteration, and sharing of a content creator’s original image or photograph, they naturally implicate the content creator’s copyright. But who owns a meme? What rights, if any, does the creator of the original content have …

Conventional Protections For Commercial Fan Art Under The U.S. Copyright Act, Rachel Morgan

Fordham Intellectual Property, Media and Entertainment Law Journal

For many years, artists and consumers of pop culture have channeled their artistic skills into creating derivative works of their favorite fictional stories and characters. In the United States, fans of Japanese anime and manga have made a living selling artwork of their favorite characters at anime conventions, large gatherings that bring in fellow fans from all around the country. Despite the prevalence of this practice, there is a glaring legal issue: these fictional characters are the intellectual property of the authors who created them, and fan art is blatant copyright infringement. However, there are still many economic advantages to …

Abandoning Copyright, Dave Fagundes, Aaron Perzanowski

William & Mary Law Review

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for …