Law Commons^™

Copyright's Lost Art Of Substantial Similarity, Sandra M. Aistars

Vanderbilt Journal of Entertainment & Technology Law

Three copyright doctrines focus more than any others on the contributions of authors to visual artworks: originality, substantial similarity, and fair use. Questions regarding the aesthetics of works of authorship filter into judicial determinations under each of these doctrines. This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense.

The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a …

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Albrecht Dürer’S Enforcement Actions: A Trademark Origin Story, Peter J. Karol

Vanderbilt Journal of Entertainment & Technology Law

This Article offers a trademark-framed reappraisal of a pair of extraordinary enforcement actions brought by the Northern Renaissance artist Albrecht Dürer (1471–1528) against copyists of his work. These cases have long been debated by art, cultural, and copyright historians insofar as they appear to reject Dürer’s demand for protocopyright protection. Commentators have also contested the historicity of one of the two narratives. But surprisingly little attention has been paid by trademark scholars to the companion holdings-—in the same texts-—that affirm Dürer’s right to prevent the use of his monogram on unauthorized reproductions.

This Article seeks to fill that gap by …

Reinterpreting Repeat Infringement In The Digital Millennium Copyright Act, Hunter Mcghee

Vanderbilt Journal of Entertainment & Technology Law

In 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a …

A Compulsory Solution To The Machine Problem: Recognizing Artificial Intelligence As Inventors In Patent Law, Cole G. Merritt

Vanderbilt Journal of Entertainment & Technology Law

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

The Data Trust Solution To Data Sharing Problems, Kimberly A. Houser, John W. Bagby

Vanderbilt Journal of Entertainment & Technology Law

A small number of large companies hold most of the world’s data. Once in the hands of these companies, data subjects have little control over the use and sharing of their data. Additionally, this data is not generally available to small and medium enterprises or organizations who seek to use it for social good. A number of solutions have been proposed to limit Big Tech “power,” including antitrust actions and stricter privacy laws, but these measures are not likely to address both the oversharing and under-sharing of personal data. Although the data trust concept is being actively explored in the …

Co-Authorship Between Photographers And Portrait Subjects, Molly Torsen Stech

Vanderbilt Journal of Entertainment & Technology Law

work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. …

How Free Should A Freeport Be?: Reducing Money Laundering In The Art Market Through Freeport Regulation, Cates Grier Saleeby

Vanderbilt Journal of Entertainment & Technology Law

The tax incentives that luxury freeports provide have created opportunities for money laundering and other forms of financial crime through the sale of art. The use of such institutions in combination with the anonymity that art transactions allow can create a series of transactions that are difficult to track, making the market ripe for corrupt behavior. Legislation like the Anti-Money Laundering Act, the Bank Secrecy Act, and the Money Laundering Control Act have helped reduce financial crime, but an approach more narrowly tailored to the art market and the freeports that enable its high value sales would further the goals …

Patent Forfeiture, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Patent law doesn't look kindly on patent owners who engage in wrongdoing involving the patent. The U.S. Supreme Court and lower courts have refused to enforce patents tainted with inequitableness, fraud, or bad faith. This issue typically arises in patent litigation when an accused infringer asserts that the patent should be unenforceable if the patentee engaged in one of four proscribed activities: inequitable conduct (deliberate misrepresentations or omissions of material information from the Patent Office); patent misuse (anticompetitive licensing practices); unclean hands (business or litigation misconduct); or waiver/estoppel (a lack of candor before a standard-setting organization). This seems right--a patentee …

Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley

Vanderbilt Journal of Entertainment & Technology Law

Films and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?

In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to …

Prospecting, Sharecropping, And The Recording Industry, Olufunmilayo B. Arewa, Matt Stahl

Vanderbilt Journal of Entertainment & Technology Law

Digital-era disruption has had a significant impact on the recording industry and the business of music more generally. Digital-era music disruption draws attention to patterns of continuity within the recording industry. Notably, despite widespread use of digital technologies for the creation, dissemination, and consumption of music, core recording industry business models largely still draw from the predigital era. Recording industry business models have long been compared to other exploitative business models based on debt, including the sharecropping business. Business models in the recording industry have been a source of dispute by a broad range of recording artists, including highly successful …