Law Commons^™

Clown Eggs, David Fagundes, Aaron K. Perzanowski

Faculty Publications

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller …

The Tethered Economy, Aaron K. Perzanowski, Chris Jay Hoofnagle, Aniket Kesari

Faculty Publications

Imagine a future in which every purchase decision is as complex as choosing a mobile phone. What will ongoing service cost? Is it compatible with other devices you use? Can you move data and applications across de- vices? Can you switch providers? These are just some of the questions one must consider when a product is “tethered” or persistently linked to the seller. The Internet of Things, but more broadly, consumer products with embedded software, are already tethered. While tethered products bring the benefits of connection, they also carry its pathologies. As sellers blend hardware and software—as well as product …

Scope And Justification Of The Right Of Publicity, Jeremy N. Sheff

Faculty Publications

(Excerpt)

Thank you to Professor June Besek, and thanks to everyone here at Columbia for the invitation. June, to correct one of your introductions here—Mark McKenna is too humble to say so, but in addition to being a widely recognized scholar, he was elected yesterday to the American Law Institute, which is well deserved given his immense contributions to Intellectual Property Law scholarship.

Mark and I have talked about this topic, in part in preparation for today, and so a lot of what I say is going to reflect some of what he has said, and I think that is …

Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola

Faculty Publications

Intellectual property law has intended benefits, but it also carries certain costs—deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More …

Reasonable Appropriation And Reader Response, Laura A. Heymann

Faculty Publications

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and stating that the key to …

Who Owns (What We Characterize As) The News?, Laura A. Heymann

Faculty Publications

Will Slauter’s Who Owns the News? (2019) is subtitled A History of Copyright, but it could just as easily have been subtitled A History of Journalism. Slauter’s thoughtful and detailed story of the battle among newspaper publishers to secure legal and other protection for their work product is inseparable from questions about what it means for something to be “news” in the first place—and, indeed, whether “journalism” is something different from “news.” Developments subsequent to Slauter’s history—the emergence of the journalist as a literary figure, the heightened need to see news publishing as an economic (and profitable) enterprise, and the …

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

Copyright And Underwater Cultural Heritage, Tyler T. Ochoa

Faculty Publications

This article will focus on three aspects of copyright law as it applies to the photography of underwater cultural heritage. First, to what extent can a salvor claim exclusive rights to photograph a particular site? Second, who is the author (or who are the authors) of such underwater photography, which increasingly involves the use of remote-controlled robotic drones? Third, to what extent can a State control the use of underwater photography that falls within its territorial waters?8 All three of these aspects have been the subject of lawsuits and judicial opinions in the United States; and those opinions shed light …

Emojis And The Law, Eric Goldman

Faculty Publications

Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail.

Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them.

One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized …

Brief Of Amici Curiae - Copyright And Intellectual Property Law Professors In Support Of Defendant-Petitioner Pandora Media, Inc., Tyler T. Ochoa, Joseph C. Gratz

Faculty Publications

Brief submitted to the Supreme Court of the State of California.

Case No. S240649 FLO & EDDIE, INC., Plaintiff-Respondent, v. PANDORA MEDIA, INC., Defendant-Petitioner.

Plaintiff Flo & Eddie, Inc., contends that the phrase “exclusive ownership” in California Civil Code section 980 includes all possible uses to which a copyrightable work may be put, including an exclusive right of public performance. At the time California Civil Code section 980 was first enacted in 1872, however, the phrase “exclusive ownership” in relation to a copyrightable work meant something different and much narrower: namely, the right of first publication (reproduction and sale) only. …

Creativity Revisited, Ralph D. Clifford

Faculty Publications

The University of New Hampshire's Scholarship Redux Conference invited a reexamination of an earlier work of IP scholarship to address what has happened in the area since the time of its original publication. As my contribution to the Conference, I revisited my 1997 article that discussed the consequences of the increasing sophistication of artificial intelligence ("AI") on the production of new copyrightable or patentable works as well as the follow-up article I published in 2004 that focused expressly on copyright law. The primary call of the conference was to discuss the "legal predictions [that were] right -- or wrong!" In …

The Drug Repurposing Ecosystem: Intellectual Property Incentives, Market Exclusivity, And The Future Of "New" Medicines, Sam F. Halabi

Faculty Publications

The pharmaceutical industry is in a state of fundamental transition. New drug approvals have slowed, patents on blockbuster drugs are expiring, and costs associated with developing new drugs are escalating and yielding fewer viable drug candidates. As a result, pharmaceutical firms have turned to a number of alternative strategies for growth. One of these strategies is "drug repurposing"-finding new ways to deploy approved drugs or abandoned clinical candidates in new disease areas. Despite the efficiency advantages of repurposing drugs, there is broad agreement that there is insufficient repurposing activity because of numerous intellectual property protection and market failures. This Article …

Socially Responsible Corporate Ip, J. Janewa Osei-Tutu

Faculty Publications

Many companies practice corporate social responsibility (CSR) as part of their branding and public relations efforts. For example, as part of their CSR strategies, some companies adopt voluntary codes of conduct in an effort to respect human rights. This Article contemplates the application of CSR principles to trade-related intellectual property (IP). In theory, patent and copyright laws promote progress and innovation, which is why IP rights are beneficial for both IP owners and for the public. Trademark rights encourage businesses to maintain certain standards and allow consumers to make more efficient choices. Though IP rights are often discussed in relation …

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

Dr. Seuss, The Juice And Fair Use Revisited: Two Decades Of Parody And Satire In Copyright Law, Tyler T. Ochoa

Faculty Publications

This essay will summarize some of the salient features and arguments made in the original article. It will also analyze copyright infringement cases in the last 20 years applying the fair use doctrine to parody and satire.

Inequality, Innovation, And Patents, Colleen V. Chien

Faculty Publications

This article explores the relationship between patents, innovation, and inequality, making three contributions. First, it reveals how shifts in patented innovation over the last several decades have contributed to broader social and economic shifts, away from manufacturing-based, domestic, and independent innovation, and towards digital, foreign, and corporate innovation, validating both optimistic accounts of immigration-driven, digital prosperity and pessimistic accounts of the shrinking role of domestic innovators. Second, it offers a framework for understanding the relationship between innovation and inequality that includes both the potentially inequality-increasing impacts of innovation and the potentially inequality-decreasing impacts of innovation and specifies the contribution of …

Licensing & Law Who Owns An Avatar?, Tyler T. Ochoa, Jaime Banks

Faculty Publications

Both players and game developers have great influence over how avatars—via their assembled components— manifest in digital game play. Developers craft their foundational platforms and draw on those infrastructures to craft dynamic code that enables movements, appearances, and abilities. But those potentials call into question whether avatars are avatars until they are played—players click avatars into being, customize their bodies and attire, drive their actions and interactions, and sometimes bring them outside the game world through physical representations. So, given avatars’ joint reliance on developers and players, and given legal frameworks such as copyright law, who really “owns” a video …

Brand Renegades Redux, Jeremy N. Sheff

Faculty Publications

In "Brand Renegades," 1 NYU J. Intell. Prop. & Ent. L. 128 (2011), I identified a new frontier in trademark enforcement: consumers who use branded products out of affiliation with some aspects of the image cultivated by the brand owner, but whose conspicuous consumption of the brand generates social meanings that are inconsistent with that image. As far-right political movements have built momentum in the consumer economies of the West, this type of "brand renegade" consumption has taken a much darker turn. Over the past two years, neo-Nazis and white supremacists have conspicuously adopted well-known brands in their bids to …

Beware The Trademark Echo Chamber: Why Federal Courts Should Not Defer To Uspto Decisions, Deborah R. Gerhardt

Faculty Publications

This Article explains why federal courts should not defer to United States Patent and Trademark Office (USPTO) trademark decisions. Under United States trademark law, actual use of a mark on specific goods or services is required to support federal trademark registration. The USPTO processes a tremendous volume of applications to register trademarks. In order to do so expeditiously, trademark examiners use heuristics drawn from past USPTO registration data. While markets continually change, each trademark registration is updated at five or ten-year renewal intervals. Accordingly, much of the data does not reflect current market use. A recent audit established that many …

Evaluating Market Reactions To Non-Practicing Entity Litigation, Emiliano Giudici, Justin Blount

Faculty Publications

An ongoing debate in patent law involves the role “non-practicing entities,” sometimes called “patent trolls,” serve in the patent system. Some argue they serve as valuable market intermediaries, while others contend they are a drain on innovation and an impediment to a well-functioning patent system. This Article adds to the data available in this debate by conducting an event study that analyzes the market reaction to patent litigation filed by large “mass aggregator” non-practicing entities against large publicly traded companies. This study advances the literature by attempting to reproduce the results of previous event studies done in this area with …

Reading Together And Apart: Juries, Courts, And Substantial Similarity In Copyright Law, Laura A. Heymann

Faculty Publications

No abstract provided.

Prioritising Human Development In African Intellectual Property Law, J. Janewa Oseitutu

Faculty Publications

The global intellectual property structure has been criticised for requiring developing nations to adopt intellectual property standards that are appropriate for industrialised countries. Some commentators have observed that industrialised nations, such as the United States, developed their economies by borrowing from others, but that through the use of globalised intellectual property standards, they have effectively limited other nations from doing the same. This article does not aim to revisit the question of the suitability of the existing intellectual property standards for developing countries. Nor does it seek to analyse whether, as a general proposition, intellectual property rights should be expanded …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

What We Buy When We "Buy Now", Aaron K. Perzanowski, Chris Jay Hoofnagle

Faculty Publications

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent …

Design Patent Infringement Needs A Free Expression Defense (La Infracción De Patentes De Diseño Necesita Una Defensa De Libre Expresión), Richard J. Peltz-Steele, Ralph D. Clifford

Faculty Publications

English Abstract: As elsewhere in the world, design patents are propagating copiously in U.S. intellectual property law. Notwithstanding their fertility, design patents face potentially prohibitive and as yet unexplored legal challenges. One possibility is that the U.S. Congress might lack the very power to authorize design patents. Another possibility – our subject here, with implications for design patents in Europe and around the world – is that design patents violate fundamental rights if there is not a defense to infringement founded in the freedom of expression.

Spanish Abstract: Las patentes de diseño se propagan en abundancia en el derecho de …

Developing A Matrix For Intellectual Property As Subject Of International Law, Sam F. Halabi

Faculty Publications

Intellectual property disputes implicating diverse and seemingly unrelated international legal regimes have become more frequent, acrimonious, and high-stakes. This trend has spawned an enormous academic literature endeavoring to rationalize the approach various interpretive authorities take to intellectual property disputes. Graeme Austin and Larry Helfer's Human Rights and Intellectual Property offered a framework by which to resolve claims for or against intellectual property protection based on human rights arguments; Susy Frankel has extensively assessed the application of customary international rules of interpretation in furtherance of a rationalizing approach to complex IP conflicts; and Jerry Reichman. Paul Uhlir. and Tom Dedeurwaerdere have …

Wrongly Affirmed Without Opinion, Dennis D. Crouch

Faculty Publications

In his 1909 treatise on appellate jurisdiction, the future Justice Benjamin Cardozo explained the role of appellate courts - not simply "declaring justice between man and man, but . .. settling the law." In Justice Cardozo's view, the appellate courts exist "not for the individual litigant, but for the indefinite body of litigants, whose causes are potentially involved in the specific cause at issue." Justice Cardozo's vision more than a century ago still resonates, and precedential opinions form a mainstay of appellate court activity nationwide. However, one court of appeals is quite different from the rest. The Court of Appeals …

Ip Enforcement Under The Tpp: Civil And Administrative Procedures And Remedies, Provisional Measures In Tpp (Articles, 18.71-18.76), J. Janewa Osei-Tutu

Faculty Publications

No abstract provided.

The Market For Software Innovation Through The Lens Of Patent Licenses And Sales, Colleen V. Chien

Faculty Publications

Software innovation is transforming the US economy. Yet our understanding of how patents and patent transactions support this innovation is limited, in part because of a lack of public information about patent licenses and sales. Claims about the patent marketplace, for example, extolling the virtues of intermediaries like non-practicing entities, or questioning the social utility of ex post patent licenses, tend not to be grounded in empirical evidence. This article brings much-needed data to the policy debate by analyzing transactional data from several proprietary databases of patent licenses and transfers, and reporting several novel findings. First I find that, despite …