Law Commons^™

Trade Secrets And Roman Law: The Myth Exploded, Alan Watson

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In 1929 A. Arthur Schiller published a celebrated article, Trade Secrets and the Roman Law; the Actio Servi Corrupti. His main conclusions are that the Roman owner of a mark or firm name was legally protected against unfair usage by a competitor through the actio servi corrupti, “action for making a slave worse,” which the Roman jurists used to grant commercial relief under the guise of private law actions. “If, as the writer believes [writes Schiller], various private causes of action were available in satisfying commercial needs, the state was acting in exactly the same fashion as it …

Days Of Our Lives: The Impact Of Section 197 On The Depreciation Of Copyrights, Patents And Related Property, Mary Lafrance

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For federal income tax purposes, owners of intangible property generally must capitalize the costs of creating or acquiring that property. In the past, the tax rules for recovering these capitalized costs through depreciation deductions varied greatly according to the nature of the intangible. Certain types of acquired intangibles--notably, goodwill and going concern value--were nondepreciable. In contrast, taxpayers purchasing interests in copyrights or patents could depreciate those assets under the straight-line method or, in most cases, could opt for more rapid cost recovery under the income forecast method.

In the Omnibus Budget Reconciliation Act of 1993, Congress greatly enlarged the class …

Brief Amicus Curiae Of Eleven Copyright Law Professors In Princeton University Press V. Michigan Document Services, Inc., L. Ray Patterson

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The issue dealt with in this amici curiae brief is the judicial ability (or inability) to take away rights granted by Congress in 17 U.S.C. S 107, the fair use doctrine.

On June 9, 1994, the United States District Court for the Eastern District of Michigan, Southern Division, issued an opinion in Princeton University Press v. Michigan Document Services, Inc., granting several publishers a permanent injunction prohibiting a commercial copying service from photocopying excerpts from copyrighted works chosen by professors and compiled as course packets to be used by university students in class. The court held that such photocopying was …

Payment Demands For Spurious Copyrights: Four Causes Of Action, Paul J. Heald

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“COPYING IS ILLEGAL” declares the final page of the chorus from the Bach cantata lying to the right of my computer. The slogan is ingeniously printed in gray across the entire page so that it will show up clearly if any photocopies are made. The first page of the text contains the copyright symbol and the name and address of the “sole selling agent” of the putative copyright owner. Apparently, the copyright claimant would prefer to sell additional copies of the music rather than receive royalties for copying done by users. “ALL COPYING IS ILLEGAL” states the edition of Shakespeare's …

Resolving Priority Disputes In Intellectual Property Collateral, Paul J. Heald

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Although a goodly amount of recent commentary provides guidance to practitioners on the pitfalls of perfecting a security interest in intellectual property collateral, and another body of work has undertaken the laudable task of proposing reform in the area, no comprehensive attempt has yet been made to help judges resolve the complex priority disputes that arise under existing law. In light of the increased use of intellectual property as collateral and the concomitant rise in litigation, guidance on the resolution of priority disputes in intellectual property collateral is sorely needed. For example, recent cases find Article 9 of the Uniform …

Copyright And "The Exclusive Right" Of Authors, L. Ray Patterson

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The purpose of this essay is to define and explore the meaning of "the exclusive Right" in the Intellectual Property Clause of the United States Constitution as related to the promotion of learning, the public domain, and authors. Without a clear understanding of this key term, one is likely to be unaware that lower federal courts are continually making rulings contrary to both the Copyright Clause and the Copyright Act. The classic example is the judicially created sweat-of-the-brow copyright, which in 1991 -- after seventy-five years of precedent -- the Supreme Court decreed to be unconstitutional. Other bad precedents, such …

Refusing To Rock The Boat: The Sears/Compco Preemptioni Doctrine Applied To Bonito Boats V. Thunder Craft, David E. Shipley

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This article discusses the Bonito Boats and Interpart cases in conjunction with the lower courts' interpretations of the challenged state "plug molding" statutes. It analyzes the Supreme Court's resolution of the conflict between the Bonito Boats and Interpart decisions and then explores the ramifications of Bonito Boats. The article concentrates on the ways in which this decision may expand the scope of federal preemption of state law protection for certain kinds of intellectual property.

Book Review, Mary Lafrance

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Learning the business side of the film industry can be a daunting task. On-the-job training is treacherous, basic texts quickly become outdated, and treatises can overwhelm with detail. Moreover, it is one thing to know the general outlines of the business and legal aspects of film production, and quite another to feel prepared to negotiate a contract. This is particularly true in the area of film financing, where new techniques emerge with every deal. Producing, Financing and Distributing Film fills a unique niche by providing a concise one-volume introduction to the business side of film that is detailed and transaction-oriented. …

Federal Intellectual Property Law And The Economics Of Preemption, Paul J. Heald

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In the Sears/Compco decisions, the United States Supreme Court established that federal patent law preempts state prohibitions on the mere copying of unpatented product configurations. After years of harsh criticism by commentators, apparent rejection by the lower courts, and allegedly inconsistent treatment by the Court itself, most had proclaimed this principle far beyond resuscitation. The Court, however, miraculously resurrected the principle in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., which unanimously reaffirmed that intentional copying often should be privileged under federal law. In so doing, the Court provided an expressly economic rationale to be used in future determinations …

The Vices Of Originality, Paul J. Heald

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Lately, the Constitution has become an unwelcome guest at the parties of those claiming rights lying on the periphery of intellectual property. Two terms ago, in Bonito Boats, Inc. v. Thunder Craft Boats Inc., the Court held that federal patent law preempted a Florida statute forbidding the reproduction of boat hulls by use of any direct molding process. The Court's decision effectively provided a limited constitutional right to copy unpatented product shapes and designs. Most recently, in Feist Publications, Inc. v. Rural Telephone Service, Inc. the Intellectual Property Clause was held to create positive restraints on Congress's ability to …

Three Strikes And They're Out At The Old Ball Game: Preemption Of Performers' Rights Of Publicity Under The Copyright Act Of 1976, David E. Shipley

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Presently, broadcasters and cable television companies deal directly with the two baseball leagues and the individual clubs, which in turn purport to sell all of the rights regarding the televising of the games. The players wanted to be a part of those contracts to get a bigger share of the television revenues. In the Baltimore Orioles case both sides sought a judicial resolution of their rights in the telecasts. The baseball players' demand was based on their rights of publicity in their performances. This common law right allegedly precluded the clubs and the leagues from contracting with the broadcasters for …

Copyright Law And Your Neighborhood Bar And Grill: Recent Developments In Performance Rights And The Section 110(5) Exemption, David E. Shipley

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This Article attempts to clarify the chaotic state of the law concerning performance rights. First, it briefly summarizes the history of this right and discusses some of the problems Congress sought to resolve when it passed the 1976 Act. Second, it outlines several of the Act's key provisions on the performance right. Finally, it discusses the recent decisions which have interpreted these provisions and analyzes their impact on the activities of commercial establishments. These decisions show that the pertinent sections of the 1976 Act provide reasonably clear guidelines outlining the ways in which copyrighted works can be publicly performed or …

Copyright Protection For Architectural Works, David E. Shipley

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Architecture is the most commonly experienced and pervasive of all the arts. The creative efforts of architects culminate in structures used for shelter, pleasure, business, entertainment, and transportation.1 Architects express their design concepts in sketches, elevations, floor plans, working drawings, specifications, renditions, and three-dimensional models. Their labors in shaping the ideas for a building from rough conceptions into plans and then into completed structures are similar to the efforts of other creators. An architect is as much an author as is a sculptor or a dramatist. His plans, renditions, and the resulting structure will ordinarily show originality and will reflect …

Conflicts Between Copyright And The First Amendment After Harper & Row, Publishers V. Nation Enterprises, David E. Shipley

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The relationship between copyright and the first amendment has been discussed repeatedly in the past fifteen years. A free speech privilege has been asserted as a defense in many copyright infringement actions, and the topic has been the subject of lively academic debate. Although no court has held an infringement claim to be defeated by a first amendment defense, considerable attention has been paid to the potential conflict between copyright and free speech interests. Commentators have speculated that in some situations copyright protection could impermissibly abridge the first amendment. The United States Supreme Court's decision in Harper & Row, Publishers …

Note, Developments Under The Freedom Of Information Act—1984, Mary Lafrance

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The eighteenth year of the Freedom of Information Act (FOIA) witnessed a continuation of the trend toward restricting public access to government information. This article discusses the developments under the FOIA in 1984, including legislative developments, administrative developments, and judicial developments.

Protecting Research: Copyright, Common-Law Alternatives, And Federal Preemption, David E. Shipley, Jeffrey S. Hays

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Under federal copyright law, an author's expression is protected but his ideas and discoveries are not. Professor Shipley explores the possibility of expanding copyright to protect the research of nonfiction authors, but concludes that such an expansion would undermine federal copyright policy. State-law remedies exist that will provide such protection if they are not preempted by federal law. Professor Shipley concludes that most contract claims and some misappropriation claims will survive preemption and therefore are a means by which nonfiction authors can protect their research.

The Transfer Of Technology To Latin America, Gabriel M. Wilner

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The transfer of technology to Latin America has taken place through both the licensing process and direct investments by foreign enterprises that are often transnational corporations. National law has concerned itself first with the creation of rights in technological knowledge and the protection of these rights by law. The regulation of these rights as set out in contractual relationships and the regulation of direct investment, particularly the technological component thereof, were dealt with thereafter. Other matters such as the repatriation of profits (exchange control), customs controls, and various taxes have also become a part of the national regulatory scene today. …

Publicity Never Dies; It Just Fades Away: The Right Of Publicity And Federal Preemption, David E. Shipley

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This Article explores the nature and developing boundaries of the state law doctrine of the right of publicity. It investigates the doctrine's conflict with the 1976 Copyright Act and federal policy concerning intellectual property, and concludes that the 1976 Act precludes publicity actions aimed at protecting certain types of publicity interests. In other situations, the overriding objectives of federal copyright policy preempt the right to the extent that the right defined as perpetual; moreover, such protection in perpetuity violates the supremacy clause of the Federal Constitution. Many types of publicity actions, however, should escape preemption either because the asserted rights …

Generic Trademarks, The Ftc And The Lanham Act: Covering The Market With Formica, David E. Shipley

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This article focuses on the FTC's authority under section 14 of the Lanham Act to petition for the cancellation of a trademark on the ground that the mark has become "the common descriptive name of an article or substance" and, thus, generic. The FTC's recent decision to challenge Formica Corporation's FORMICA trademark manifests a shift in agency policy which is highly inappropriate and which could have damaging effects on consumers and industry. Competition and the public interest would be better served if the FTC did not exercise this discretionary power, leaving the issue of whether a trademark should be cancelled …