Law Commons^™

Endorsing After Death, Andrew Gilden

William & Mary Law Review

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and have been increasingly embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Monroe’s name, have successfully brought false endorsement claims under section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified “@marilynmonroe” page. Marilyn Monroe survives today as a …

Monopolizing Sports Data, Marc Edelman, John T. Holden

William & Mary Law Review

With legal sports betting viewed as a panacea for state budget woes across the United States, the underlying data that fuels the sports betting industry has emerged as an especially valuable asset. In the hopes of capitalizing on state laws that have now legalized sports betting, United States professional sports leagues have attempted to gain exclusive ownership rights over valuable sports betting data by asking legislators to mandate that bookmakers exclusively use data sold through the league. In addition, some sports leagues have imposed policies mandating that teams bundle together their collected data for purposes of selling it exclusively through …

Abandoning Copyright, Dave Fagundes, Aaron Perzanowski

William & Mary Law Review

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for …

Custom-Edited Dna: Legal Limits On The Patentability Of Crispr-Cas9'S Therapeutic Applications, Noah C. Chauvin

William & Mary Law Review

No abstract provided.

The Problem Of Creative Collaboration, Anthony J. Casey, Andres Sawicki

William & Mary Law Review

In this Article, we explore a central problem facing creative industries: how to organize collaborative creative production. We argue that informal rules are a significant and pervasive—but nonetheless underappreciated—tool for solving the problem. While existing literature has focused on how informal rules sustain incentives for producing creative work, we demonstrate how such rules can facilitate and organize collaboration in the creative space.

We also suggest that informal rules can be a better fit for creative organization than formal law. On the one side, unique features of creativity, especially high uncertainty and low verifiability, lead to organizational challenges that formal law …

Scope, Mark A. Lemley, Mark P. Mckenna

William & Mary Law Review

Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize (validity); whether the defendant’s conduct violates that right (infringement); or whether the defendant is somehow privileged to violate that right (defenses). IP regimes tend to separate doctrines in these three legal categories relatively strictly. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. And even where none of that is true, the nature of IP law is to categorize …

Copyrighting The "Useful Art" Of Couture: Expanding Intellectual Property Protection For Fashion Designs, M. C. Miller

William & Mary Law Review

No abstract provided.

The New Invention Creation Activity Boundary In Patent Law, Margo A. Bagley

William & Mary Law Review

This Essay identifies a new boundary in patent law-illegal or immoral invention creation activity-and explores the possible challenges and opportunities it may facilitate. The boundary currently is neither robust nor extensive, and whether and under what circumstances it should exist at all is open to debate.

A New Deal For End Users? Lessons From A French Innovation In The Regulation Of Interoperability, Jane Winn, Nicolas Jondet

William & Mary Law Review

In 2007, France created the Regulatory Authority for Technical Measures (lAutoritj de Rdgulation des Mesures Techniques or ARMT), an independent regulatory agency charged with promoting the interoperability of digital media distributed with embedded "technical protection measures" (TPM), also known as "digital rights management" technologies (DRM). ARMT was established in part to rectify what French lawmakers perceived as an imbalance in the rights of copyright owners and end users created when the European Copyright Directive (EUCD) was transposed into French law as the "Loi sur le Droit d'Auteur et les Droits Voisins dans la Socidte de l'Information" (DADVSI). ARMT is both …

Distinguishing Lost Profits From Reasonable Royalties, Mark A. Lemley

William & Mary Law Review

No abstract provided.

How To Write A Life: Some Thoughts On Fixation And The Copyright/Privacy Divide, Laura A. Heymann

William & Mary Law Review

No abstract provided.

Imitation Is The Sincerest Form Of … Infringement?: Guitar Tabs, Fair Use, And The Internet, Jocelyn Kempema

William & Mary Law Review

No abstract provided.

Drawing Idea From Expression: Creating A Legal Space For Culturally Appropriated Literary Characters, Jacqueline Lai Chung

William & Mary Law Review

No abstract provided.

Amateur-To-Amateur, Dan Hunter, F. Gregory Lastowka

William & Mary Law Review

Copyright, it is commonly said, matters in society because it encourages the production of socially beneficial, culturally significant expressive content. Our focus on copyright's recent history, however, blinds us to the social information practices that have always existed. In this Article, we examine these social information practices, and query copyright's role within them. We posit a functional model of what is necessary for creative content to move from creator to user. These are the functions dealing with the creation, selection, production, dissemination, promotion, sale, and use of expressive content. We demonstrate how centralized commercial control of information content has been …

An Economic Analysis Of Damages Rules In Intellectual Property Law, Roger D. Blair, Thomas F. Cotter

William & Mary Law Review

No abstract provided.

Common Law Copyright In Spontaneous Oral Conversation, Paul M. Morley

William & Mary Law Review

No abstract provided.