Digital Commons Network^™

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 …

Gotta Catch ‘Em All!: The National Diet’S Inadequate Attempt To Control Manga Pirates, Sydney Landers

University of Miami Law Review

Internet piracy threatens Japan’s most popular cultural exports: manga and anime. Fans have taken to translating and distributing the works online for other fans to enjoy because official translated versions of manga and anime are released overseas later than the original in Japan, or they are never released at all. In order to combat the illegal downloading and distributing of manga, the National Diet, Japan’s legislature, passed an amendment to the Japanese Copyright Act that increases punishments for leech sites and illegal downloading of manga.
This Note discusses the manga and anime industries and their struggles with piracy before reviewing …

What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming ScèNes À Faire, Logan Sandler

University of Miami Law Review

Recent lawsuits involving the Pirates of the Caribbean film franchise and the Oscar award-winning movie The Shape of Water required courts to wrestle with the application of the decisive scènes à faire doctrine. In doing so, the Ninth Circuit exposed the doctrine’s chief pitfall: the lack of a temporal framework.
The modern scènes à faire doctrine limits the scope of what authors can claim as substantially similar by excluding the standard or stock elements in a given expressive work from copyright protection. Courts will often conclude that a contested element is scènes à faire if it can be demonstrated that …

The Free Speech Record Of The Roberts Court, William D. Araiza

Faculty Scholarship

No abstract provided.

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, …

Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray

University of Massachusetts Law Review

Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand. There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential …

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. …

Constitutional Limits On Administrative Agencies In Cyberspace, Jon M. Garon

Belmont Law Review

No abstract provided.

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 …

Lawyering From Below: Activist Legal Support In Contemporary Canada And The Us, Irina Ceric

PhD Dissertations

A vast literature has considered the proactive use of law as a tool by progressive social movements, but far less attention has been paid to the way activists respond to involuntary engagement with law as a result of repression and criminalization. This dissertation explores the legal support infrastructure of grassroots protest movements in Canada and the US by tracing the evolution of contemporary activist legal support through two periods. The tactic of jail solidarity and an emerging legal collective model are highlighted as the key features of the global justice organizing era (1999-2005) while in the second age of austerity …

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 …

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 …

Intersections Of Environmental Justice And Sustainable Development: Framing The Issues, Sumudu A. Atapattu, Carmen G. Gonzalez, Sara L. Seck

Articles, Book Chapters, & Popular Press

This chapter proceeds as follows. Section 1.2 describes the evolution of the concept of sustainable development from the 1987 report of the World Commission on Environment and Development (WCED) to the Sustainable Development Goals (SDGs). It discusses contem- porary degrowth and green growth movements, before introducing the relatively novel concept of just sustainabilities, a synthesis of environmental justice and sustainable development. Section 1.3 de!nes environmental justice and discusses its relationship to human rights and the social pillar of sustainable development, reflecting on which dimensions of environmental justice are well reflected in this book and which proved more dif!cult to address. …

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 …

Trademark Law—Looking Out For The Big Guys: Outdated Precedent Reveals The Need For New Legal Test In Fortnite Likeness Case—Pellegrino V. Epic Games, Inc., 451 F. Supp. 3d 373 (E.D. Pa. 2020), Nam Le

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

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

Touro Law Review

No abstract provided.

Cartoon Contracts And The Proactive Visualization Of Law, Michael D. Murray

Law Faculty Scholarly Articles

Contracts have always relied on text first, foremost, and usually exclusively. Yet, this approach leaves many users of contracts in the dark as to the actual meaning of the transactional documents and instruments they enter into. The average contract routinely uses language that only lawyers, law-trained readers, and highly literate persons can truly understand.

There is a movement in the law in the United States and many other nations called the visualization of law movement that attempts to bridge these gaps in contractual communication by using highly visual instruments. In appropriate circumstances, even cartoons and comic book forms of sequential …

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 …

Table Of Contents

Touro Law Review

No abstract provided.

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.