Law Commons^™

Authorship, Attribution, And Audience, Laura A. Heymann

Popular Media

No abstract provided.

Copyright Update For The 2015 Nevada Bar Intellectual Property Law Conference, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials to the Intellectual Property Law Section of the Nevada Bar on October 23, 2015. Over the course of her presentation, Prof. Trimble covered significant legal developments and statistical trends in copyright law from the 2014-2015 period, both in the United States and abroad.

Copyright Policy And The Problem Of Generalizing, Eva E. Subotnik

Faculty Publications

(Excerpt)

Today we have heard a variety of concerns expressed by professional authors, artists and performers. But one of the toughest aspects of determining how to make the copyright system work better is generalizing about what is and is not working. In these brief remarks, I would like to identify three areas that demonstrate this difficulty.

At the outset, a disclaimer: I took the animating theme of this Symposium to be the improvement of the financial stake of individual authors in some kind of direct way. This mode of analysis should be distinguished from other approaches, equally valid, that would …

Eldred & The New Rationality, Brian L. Frye

Law Faculty Scholarly Articles

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by …

Copyright As Charity, Brian L. Frye

Law Faculty Scholarly Articles

Copyright and charity law are generally considered distinct and unrelated bodies of law. But they are actually quite similar and complement each other. Both copyright and charity law are intended to increase social welfare by solving market and government failures in public goods caused by free riding. Copyright solves market and government failures in works of authorship by providing an indirect subsidy to marginal authors, and charity law solves market and government failures in charitable goods by providing an indirect subsidy to marginal donors. Copyright and charity law complement each other by solving market and government failures in works of …

The Ip Law Book Review, V.5 #2, William T. Gallagher

Intellectual Property Law

PUTTING INTELLECTUAL PROPERTY IN ITS PLACE – RIGHTS DISCOURSES, CREATIVE LABOR AND THE EVERYDAY, by Laura Murray, S. Tina Piper and Kirsty Robertson. Reviewed by Luke McDonagh, Cardiff University Law School.

INTELLECTUAL PROPERTY, INDIGENOUS PEOPLE, AND THEIR KNOWLEDGE by Peter Drahos. Reviewed by Ruth L. Okediji, University of Minnesota Law School.

THE STATE OF COPYRIGHT: THE COMPLEX CULTURAL CREATION IN A GLOBALIZED WORLD, by Debora J. Halbert. Reviewed by Sara Bannerman, Department of Communication Studies and Multimedia, McMaster University.

The Enigma Of Photography, Depiction, And Copyright Originality, Terry S. Kogan

Utah Law Faculty Scholarship

Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

Awareness And Perception Of Copyright Among Teaching Faculty At Canadian Universities, Lisa Di Valentino

FIMS Presentations

In this talk I discuss the results of a survey of Canadian university faculty members undertaken from October to December 2014. The survey sought to determine teaching faculty awareness of copyright law and institutional policy and training, and how they would respond in various scenarios.

Analysis of the results suggests that while faculty members are aware of the existence of their institution's copyright policy, much fewer know whether their institution offers training. Of those who do know about training, only one-third have attended. However, faculty who have attended copyright training find that their knowledge is enhanced by the experience.

It …

Copyright As Contract, Jeffrey L. Harrison

UF Law Faculty Publications

Copyright is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration received by authors is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited basis for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all, it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season of exclusivity, if …

Andy Warhol’S Pantry, Brian L. Frye

Law Faculty Scholarly Articles

This Article examines Andy Warhol’s use of food and food products as a metaphor for commerce and consumption. It observes that Warhol’s use of images and marks was often inconsistent with copyright and trademark doctrine, and suggests that the fair use doctrine should in-corporate a “Warhol test.”

The Zombie First Amendment, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary first amendment shelters power’s ability to make and propagate its own truth. This essay relates developments in recent first amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech — cases that lie at the first amendment’s traditional core — tell only a …

Codes Of Best Practice For Fair Use, Denise George

Selections from the University Library Blog

No abstract provided.

Fair Use: The Four Factors, Kathryn Michaelis

Selections from the University Library Blog

No abstract provided.

Code Of Best Practices In Fair Use For The Visual Arts, College Art Association, Patricia Aufderheide, Peter Jaszi

Copyright, Fair Use, Scholarly Communication, etc.

The mission of the College Art Association (CAA) is to promote the visual arts and their understanding through advocacy, intellectual engagement, and a commitment to the diversity of practices and practitioners. CAA contributes to the visual arts profession as a whole through scholarly publications, advocacy, exchange of research and new work, and the development of standards and guidelines that reflect the best practices of the field. The Code of Best Practices in Fair Use for the Visual Arts is based on a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative …

Creative Copyright: Tailoring Intellectual Property Policies And Business Strategies For Creative Content Industries In The Digital Age, Bhamati Viswanathan

SJD Dissertations

My dissertation explores intellectual property rights in three fields: fashion, music and education. I examine the varying degrees of IP rights in those fields, and ask whether the differing levels of rights are appropriate to keep these industries creative, innovative and robust. I further examine the salient characteristics of those rights and ask whether such an understanding might help to determine optimal levels of IP protection in other creative industries.

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

A Functional Approach To Copyright Policy, Robert E. Suggs

Faculty Scholarship

This essay results from a half-century spent observing the development and stagnation of a once vital music form, jazz. Curiosity spurred its evolution when a successor to John Coltrane failed to emerge within a few years of his early death. Over the ensuing decades, I became concerned that advancing technology and the 1976 Copyright Act had fundamentally undermined our cultural ecology.

Unnoticed over the past century, technology has changed our experience of expressive culture, (the stories, images, and melodies that copyright most strongly protects), from live performance in social settings to solitary consumption of recorded media. Neurologically and physiologically this …

Ip Basics: Advice On Ip Careers For Those Without Technical Backgrounds, Thomas G. Field Jr.

Law Faculty Scholarship

[Excerpt] If you can spend three more years in school, intellectual property offers a wide range of interesting and rewarding careers. Those without technical backgrounds, however, should not pursue an intellectual property career blindly. Unless your undergraduate degree is in a physical science or engineering -- or you have at least a masters (and probably some experience) in biotechnology, patent opportunities will be slim. As discussed in more detail below, people without technical training are more apt to deal with copyrights, trademarks and special contracts such as licenses or franchise agreements. Yet intellectual property law covering non-technical subjects is often …

Ip Basics: Managing Intellectual Property, Thomas G. Field Jr.

Law Faculty Scholarship

This provides an overview of the IP management process, including the key decisions to be made in the effort to make the most of intellectual property.

Ip Basics: Copyright On The Internet, Thomas G. Field Jr.

Law Faculty Scholarship

This discussion focuses on copyright issues most apt to concern those who post to or own email lists or those who have put up web pages. Such matters as the fundamental distinction between works that are and are not "for hire," registration, and issues to consider in transferring copyright interests are treated in other copyright discussions above.

Ip Basics: Advice On Ip Careers For Those With Technical Backgrounds, Thomas G. Field Jr.

Law Faculty Scholarship

[Excerpt] Full-time law school takes three years and culminates in the Juris Doctor. A J.D. from a school accredited by the American Bar Association qualifies a person to take the bar exam in any state. As mentioned above, college graduates need not pursue any particular line of study to be accepted into law school. At the University of New Hampshire School of Law, for example, over a third of our students have degrees in engineering or science, and many have had extensive experience or advanced degrees, including M.D.s and Ph.Ds. -- the last being particularly helpful for biotechnology patent careers.

Ip Basics: Copyright In Written Work, Thomas G. Field Jr.

Law Faculty Scholarship

Written primarily for free-lance writers, this discussion addresses ownership and duration of copyrights, deposit and registration, notice, and remedies that are closely tied to prompt registration. It also discusses licensing and other matters of interest, as well as the need for counsel.

Ip Basics: Copyright In Visual Arts, Thomas G. Field Jr.

Law Faculty Scholarship

This discussion focuses on the needs of free-lance artists, craftspeople, photographers, sculptors and the like.

Ip Basics: Copyright For Digital Authors, Thomas G. Field Jr.

Law Faculty Scholarship

Written for computer artists and programmers, this paper addresses the basics, as well as the registration of multiple works, difference between works that are and are not prepared "for hire," and other matters of interest to entrepreneurs as well as to free-lance programmers and artists.

A Race To Digitization?: Kirtsaeng V. John Wiley & Sons Impact On The Digital Publication Market, Amelia Parsons

Proxy

No abstract provided.

Some Speculation About Mirror Neurons And Copyright, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The internet, a world-wide copy machine, caused some rethinking of copyright law. Cognitive science increasingly suggests that humans are smaller scale, more adaptable, copy machines. Copyright law may again change. V.S. Ramachandran’s "The Tell-Tale Brain" discusses how mirror neurons may enable imitation, detection of others’ intention, and empathy. Ramachandran suggests that mirror neuron circuits could provide the neural substrate for cultural transmission, language, and even consciousness. This essay speculates on the implications for copyright law. It’s not news that people copy. But if cognition and culture depend on the bottom-up imitation by mirror neurons, perhaps some of the central tenets …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part …

Fair Use And The Faces Of Transformation, Part Ii, James Gibson

Law Faculty Publications

In my last IP Viewpoints entry, I discussed the origin of “transformation” as a major factor in copyright’s fair use doctrine. In particular, I focused on “expressive” transformation, in which the user changes the actual content of the copyrighted work. Taking old works and turning them into something new is the way that culture usually evolves, so it is no surprise that copyright law would sometimes allow users to engage in such conduct without needing to pay for the privilege.

Yet there is also a second kind of transformation, one that does not involve the alteration of the underlying material. …

No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley

Articles in Law Reviews & Other Academic Journals

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 it has …