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Articles 1 - 17 of 17
Full-Text Articles in Law
Content-Based Copyright Denial, Ned Snow
Content-Based Copyright Denial, Ned Snow
Indiana Law Journal
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …
International Trade V. International Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor Martins Dias
International Trade V. International Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor Martins Dias
Maurer Theses and Dissertations
This work analyzes a distinctive characteristic of the globalizing Brazilian legal profession. Namely, intellectual property (IP) lawyers who once were leaders in opening the Brazilian economy and were key players in cross-border transactions are now losing ground to their peers with an expertise in international trade. The thesis of this article is that the manner in which Brazilian lawyers are being educated is in shambles. Generally speaking, Brazilian legal education has, overall, become degraded and provincial. Yet, Brazilian international trade lawyers, unlike Brazilian IP-lawyers, have overcome their deficient legal training by seeking legal education abroad. By traveling overseas, especially to …
Anatomy Of A Design Regime, Kathryn C. Moore
Anatomy Of A Design Regime, Kathryn C. Moore
Indiana Journal of Global Legal Studies
Since the European Union adopted uniform sui generis design rights, an increasingly complex system of cumulative and overlapping intellectual property rights has emerged. While such harmonization offers several benefits, analyzing the interpretation and application of narrow legal requirements within the EU Community Design Rights may indicate whether such benefits will actually be realized. This paper examines Regulation 6/2002's definitions of "informed user" and "overall impression" as they apply to registered designs. After summarizing relevant case law and considering underlying policy goals of the EU Community design legislation, this paper explores whether these definitions could be more efficient and intellectually honest …
Copyright Complements And Piracy-Induced Deadweight Loss, Jiarui (Jerry) Liu
Copyright Complements And Piracy-Induced Deadweight Loss, Jiarui (Jerry) Liu
Indiana Law Journal
Conventional wisdom suggests that copyright piracy may in effect reduce the deadweight loss resulting from copyright protection because it allows the public unlimited access to information goods at a price closer to marginal cost. It has been further contended that lower copyright protection would benefit society as a whole, as long as authors continue to receive sufficient incentives from alternative revenue streams in ancillary markets, for example, touring, advertising, and merchandizing. By evaluating the empirical evidence from the music, performance, and video game markets, this Article highlights a counterintuitive yet important point: copyright piracy, while decreasing the deadweight loss in …
Commentary: Revisiting The Derivative Works Exception Of The Copyright Act Thirty Years After Mills Music, Robert S. Meitus
Commentary: Revisiting The Derivative Works Exception Of The Copyright Act Thirty Years After Mills Music, Robert S. Meitus
IP Theory
No abstract provided.
No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley
No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley
IP Theory
Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that …
The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais
The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais
IP Theory
The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media.
In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that:
An actor’s performance, when fixed, is copyrightable if …
Copyright And Cross-Cultural Borrowing: Indo-Western Musical Encounters, Arpan Banerjee
Copyright And Cross-Cultural Borrowing: Indo-Western Musical Encounters, Arpan Banerjee
IP Theory
This article traces the history of how Western rock musicians and hip-hop musicians, separated by many decades, have borrowed elements from Indian music. Conversely, the article also discusses how Indian film music composers have frequently, and rather blatantly, copied Western melodies. While cross-cultural borrowing raises complex socio-political questions, this article focuses on some practical legal questions that arise from such borrowing. The article discusses lawsuits filed by artists in India and the United States — from a much-publicized lawsuit against Dr. Dre by the Indian film music composer Bappi Lahiri, to a more recent lawsuit against another Indian film composer …
Are The Courts Singing A Different Tune When It Comes To Music?: What Ever Happened To Fair Use In Music Sampling Cases?, Michael B. Landau
Are The Courts Singing A Different Tune When It Comes To Music?: What Ever Happened To Fair Use In Music Sampling Cases?, Michael B. Landau
IP Theory
As "fair use" has become more common as a defense to copyright infringement, often successfully, it has not gained any ground in cases involving music sampling. In the years since Campbell v. Acuff-Rose Music, Inc., we have seen the introduction of "transformative use" to fair use analysis. "Transformative use" has led to the holdings that thumbnail reproductions of photographs, parodies of novels, parodies of advertisements, changed artworks, the inclusion of legal briefs in searchable databases, the inclusion of music in film, and the mass digitization of millions of books are all "fair use." Almost every day we read of …
Are We Serious About Performers’ Rights?, Mary Lafrance
Are We Serious About Performers’ Rights?, Mary Lafrance
IP Theory
Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …
Pre-1972 Sound Recordings: Why Does The Law Treat Them Differently?, June M. Besek
Pre-1972 Sound Recordings: Why Does The Law Treat Them Differently?, June M. Besek
IP Theory
No abstract provided.
Living Gardens, Living Art, Living Tradition, Roberta R. Kwall
Living Gardens, Living Art, Living Tradition, Roberta R. Kwall
IP Theory
Copyright protection in the United States begins from the moment of a work’s “creation.”1 Although this rule is codified in the statute, the underlying issues of how and when “creation” occurs are rarely, if ever, explored. Under the current law, as soon as an author creates a copyrightable work of authorship and fixes that work in a tangible medium of expression, the work is entitled to protection. This formulation ignores the critical issues of whether fluid works of authorship that are constantly evolving can be subject to copyright protection and, if so, what is the scope of such protection. Not …
Kamil Kubik: The Artist And Copyright Observed, Elizabeth Townsend Gard, Yvette J. Liebesman
Kamil Kubik: The Artist And Copyright Observed, Elizabeth Townsend Gard, Yvette J. Liebesman
IP Theory
For over 60 years—from the time he fled his native Czechoslovakia in 1948 until his death in August 2011—Kamil Kubik created amazing oil paintings and pastels. His art graces the walls of The Breakers in Palm Beach, Florida, the Old Ebbett Grill in Washington, DC, and the homes of Presidents, Governors, and celebrities. Many of his works were also printed as lithographs and serigraphs, and sold at more affordable prices than the four-to-five figures that he received for the originals. Fortunately, he was not dependent on the sale of these prints, as most of the original works were unprotected by …
The Federal Question In Patent-License Cases, Amelia Smith Rinehart
The Federal Question In Patent-License Cases, Amelia Smith Rinehart
Indiana Law Journal
The patent law has long recognized a patent owner’s ability to license some interest in the patent by granting to others permission to tread upon the patent owner’s property rights without legal consequence. When one of the parties to a patent license decides to seek remedies from the other party for a license harm, the resulting litigation may be a patent-infringement case with a contract issue or a contract case with a patent issue. In most cases, the patent owner brings her suit against the licensee in federal court, alleging that the licensee breached the license contract and, as a …
Global Data Meets 3-D Printing: The Quest For A Balanced And Globally Collaborative Solution To Prevent Patent Infringement In The Foreseeable 3-D Printing Revolution, Tyler Macik
Indiana Journal of Global Legal Studies
This Note explores a potential global solution to the foreseeable patent infringement problems with 3-D printing and do-it-yourself users. More specifically, at a time when 3-D printing is quickly gaining popularity and recognition for its many beneficial applications through advancements in printing and scanning technology, the current state of patent law lacks the ability to detect and prevent patent infringement among do-it-yourself users of 3-D printing. I propose a potential global solution that would provide a balance between fostering growth in 3-D printing and upholding patentees' rights by exploring the possibility of creating a collaborative, intergovernmental 3-D CAD file database …
Expressive Eligibility, Mark D. Janis, Timothy R. Holbrook
Expressive Eligibility, Mark D. Janis, Timothy R. Holbrook
Articles by Maurer Faculty
What is the ultimate objective of the patent eligibility inquiry? The recent eligibility case law — a frenzied outpouring of opinions from many esteemed judges — has revealed little while mystifying much. Scholars haven’t fared much better, although it isn’t for lack of trying. Our scholarly colleagues have offered a multitude of intriguing new perspectives on the analysis — drawing on history, the philosophy of science, semiotics, institutional choice, and so on. But we continue to wonder exactly what the eligibility inquiry is for.
In addressing that question here, we’re following a familiar methodological tradition: we propose to reimagine eligibility …
Patent-Eligible Processes: An Audience Perspective, Mark D. Janis, Timothy R. Holbrook
Patent-Eligible Processes: An Audience Perspective, Mark D. Janis, Timothy R. Holbrook
Articles by Maurer Faculty
Many of the problems with modern patent-eligibility analysis can be traced back to a fundamental philosophical divide between judges who treat eligibility as the primary tool for effectuating patent policy and those who take patent-eligibility as nothing more than a coarse filter to be invoked in rare cases. After several years in which the coarse filter approach seemed to have the upper hand, the eligibility-as-king approach now is firmly in ascendancy. This Article, resists that trend, exploring more centrist approaches to patent-eligibility, particularly in the context of process inventions. This Article first examines the practice of undertaking an eligibility analysis …