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Articles 1 - 30 of 39
Full-Text Articles in Law
Appropriation And Transformation, Darren Hudson Hick
Appropriation And Transformation, Darren Hudson Hick
Fordham Intellectual Property, Media and Entertainment Law Journal
The recent decision in Cariou v. Prince has reinvigorated a pressing issue for the contemporary movement of appropriation art: how can art which is defined by its taking from other artworks hope to survive in the world of copyright? In this article, I consider the legal history leading to the Cariou case, including a series of suits brought against appropriation artist Jeff Koons, as well as strategies proposed by several theorists for accommodating appropriation art within the law. Unfortunately, largely due to vagaries of the law and the misunderstood nature of appropriation art, the matter remains unresolved. I argue that, …
Signs And Portents In Cyberspace: The Rise Of Jus Internet As New Order In International Law, Roy Balleste, Joanna Kulesza
Signs And Portents In Cyberspace: The Rise Of Jus Internet As New Order In International Law, Roy Balleste, Joanna Kulesza
Fordham Intellectual Property, Media and Entertainment Law Journal
Today, having sufficient access to the Internet's information has arguably become a prerequisite for the enjoyment of human life. The Internet has become a center for human literacy and has the potential to offer numerous kinds of instruction at lower costs and with higher quality than previous media could offer. This Article will argue that the concept of a "cybered Westphalian age," as a cure to all threats in the Internet, has the potential to do more harm than good. The international community is now faced with a possible policy shift from the current state of the Internet, which is …
The Need For Patent-Centric Standard Of Antitrust Review To Evaluate Reverse Payment Settlements, Tania Khatibifar
The Need For Patent-Centric Standard Of Antitrust Review To Evaluate Reverse Payment Settlements, Tania Khatibifar
Fordham Intellectual Property, Media and Entertainment Law Journal
Reverse payment settlements have ignited a firestorm debate among all affected parties: consumer groups, brand-name pharmaceutical companies, generic manufacturers, pharmaceutical wholesalers and retailers, lawmakers, executive agencies, and the federal courts. The Federal Trade Commission (“FTC”) has waged a decade-long battle against such private settlements of pharmaceutical patent litigation as illegal market-sharing agreements, with skirmishes among the circuits trending in favor of the settling parties until recently. The Third Circuit’s recent decision in In re K-Dur Antitrust Litigation unsettled this trend, and the Supreme Court granted the FTC’s petition for a writ of certiorari in a separate case on the issue …
Navigating Unfamiliar Terrain: Reconciling Conflicting Impressions Of China’S Intellectual Property Regime In An Effort To Aid Foreign Right Holders, Matthew A. Marcucci
Navigating Unfamiliar Terrain: Reconciling Conflicting Impressions Of China’S Intellectual Property Regime In An Effort To Aid Foreign Right Holders, Matthew A. Marcucci
Fordham Intellectual Property, Media and Entertainment Law Journal
While imperial China was a notably inventive place, formal intellectual property protections analogous to those in the West failed to emerge there of their own accord. The deep influence of Confucianism on imperial Chinese society brought about a culture that subordinated individual desires to group harmony and perceived original creations as products not of individual people but of the society to which they belonged. Moreover, Confucianism's influence on education and literature rendered verbatim copying not merely an accepted practice but a fundamental aspect of scholarship. Buddhism's close connection to the emergence of printing in China also served to delay by …
The Supreme Court And Patents: Moving Toward A Postmodern Vision “Progress”?, Simone A. Rose
The Supreme Court And Patents: Moving Toward A Postmodern Vision “Progress”?, Simone A. Rose
Fordham Intellectual Property, Media and Entertainment Law Journal
This paper challenges the traditional “modernist” view that incentive-centered patent protection is essential to meet the constitutional mandate of providing exclusive rights for limited times to inventors in order to “promote progress of the useful Arts.” For a modernist society, industrial/economic growth is one of the key dimensions for measuring forward-moving progress. As modernists, we advocate that a robust exclusive rights scheme for inventors is necessary to incentivize research anddevelopment, which in turn stimulates economic growth and promotes progress. This is currently the “grand narrative” of patent law. Applying this narrative, Congress, the Patent and Trademark Office (PTO), and the …
Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg
Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg
Fordham Intellectual Property, Media and Entertainment Law Journal
In Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), the United States Supreme Court held that, in order for a product design to be protectable under § 43(a) of the Lanham Act, the product design must first acquire a secondary meaning. Writing for the Court, Justice Scalia, reasoned that consumers, as a rule, do not expect a product’s design to serve as an indicator of source. The Court stated that product designs, like colors, do not ordinarily operate as source indicators, and that is why the Court established its rule that a product design must acquire a …
Shutting Down The Turbine: How The News Industry And News Aggregators Can Coexist In A Post-Barclays V. Theflyonthewall.Com World, Nicole Marimon
Shutting Down The Turbine: How The News Industry And News Aggregators Can Coexist In A Post-Barclays V. Theflyonthewall.Com World, Nicole Marimon
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean
Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean
Fordham Intellectual Property, Media and Entertainment Law Journal
Three-dimensional ("3D") printing technology, which enables physical objects to be "printed" as easily as words can be printed on a page, is rapidly moving from industrial settings into consumers' homes. The advent of consumer grade 3D printers fundamentally alters the traditional allocation of manufacturing infrastructure and sales activity. No longer do manufacturers need to make, sell, and ship physical products in their physical states. Rather, consumers may download digital representations of products over the Internet for printing in the comfort their own homes. For products sold in this fashion that are patented, this presents difficult hurdles to enforcement against infringers. …
Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski
Real Masks And Real Name Policies: Applying Anti-Mask Case Law To Anonymous Online Speech, Margot E. Kaminski
Fordham Intellectual Property, Media and Entertainment Law Journal
The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed …
Freud On The Court: Re-Interpreting Sexting & Child Pornography Laws, Matthew H. Birkhold
Freud On The Court: Re-Interpreting Sexting & Child Pornography Laws, Matthew H. Birkhold
Fordham Intellectual Property, Media and Entertainment Law Journal
Although many developments in child pornography law are troubling, perhaps the most disconcerting is the growing number of cases in which children are being charged with violating child pornography laws for engaging in “sexting,” or sending sexually explicit photographs via cellular phones or over the Internet. Although the law implicitly considers children the victims of child pornography and the photographer and audience as punishable perpetrators, this logic is challenged by sexting cases. Yet in many instances, children who take and send “lascivious” pictures of themselves have been charged with violating the very law designed to protect them from the harms …
Jurisdictional Challenges In The United States Government’S Move To Cloud Computing Technology, Sasha Segall
Jurisdictional Challenges In The United States Government’S Move To Cloud Computing Technology, Sasha Segall
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
The Parthenon Sculptures And Cultural Justice, Derek Fincham
The Parthenon Sculptures And Cultural Justice, Derek Fincham
Fordham Intellectual Property, Media and Entertainment Law Journal
From government and philosophy to art drama and culture, the ancient Athenians, as most everyone knows, gave future generations so much. Yet the pinnacle of their artistic achievement, the Parthenon, remains a damaged and incomplete work of art. 2012 marks the two-hundredth anniversary of the last removal of works of art from the Parthenon. That taking was ordered by an English diplomat known to history as Lord Elgin, and it reminds us that cultures create lasting monuments. But not equally. Cultures which remove the artistic achievements of other nations have increasingly been confronted with uncomfortable questions about how these objects …
Access Denied: How Social Media Accounts Fall Outside The Scope Of Intellectual Property Law And Into The Realm Of The Computer Fraud And Abuse Act, Tiffany Miao
Fordham Intellectual Property, Media and Entertainment Law Journal
This note addresses the challenge of applying intellectual property laws to determining ownership rights over social media accounts, specifically in the employer and employee context. This note suggests that IP regimes, namely Trademark, Copyright,and Trade Secrets, fail to provide an adequate framework for determining such ownership rights. Instead, this note proposes that the Computer Fraud and Abuse Act serves as a more appropriate legal framework.
The Incompatibility Of Droit De Suite With Common Law Theories Of Copyright, Alexander Bussey
The Incompatibility Of Droit De Suite With Common Law Theories Of Copyright, Alexander Bussey
Fordham Intellectual Property, Media and Entertainment Law Journal
Although proponents have recently been attempting to strengthen droit de suite, or artists' resale royalty rights, throughout the world, all laws based on the right are flawed — so much so that further implementation would have almost none of the positive effects that its sponsors hope for. This is to say that droit de suite, which is meant to protect young artists, actually discourages the creation of art by young artists, and reduces the amount of money an artist can make from a sale. Furthermore, droit de suite conflicts with basic common law notions of copyright and property and is …
International Copyright: An Unorthodox Analysis, Hugh C. Hansen
International Copyright: An Unorthodox Analysis, Hugh C. Hansen
Fordham Intellectual Property, Media and Entertainment Law Journal
Professor Hansen reviews the development of copyright from its traditional domestic orientation to the modern emphasis on globalization and harmonization. His commentary analogizes modern trends in international copyright to religious equivalents. He notes that the current players include a “secular priesthood” (the traditional copyright bar and academics), “agnostics and atheists” (newer academics and lawyers, particularly those concerned with technology and the culture of the public domain) and “missionaries” (whose task it is to increase copyright protection around the world and who are primarily driven by trade considerations). The copyright “crusade” has been driven by this last group. The author compares …
Into A Silver Age: U.S. Patent Law 1992-2012, John R. Thomas
Into A Silver Age: U.S. Patent Law 1992-2012, John R. Thomas
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
The Court Of Appeals For The Federal Circuit, After Three Decades, Pauline Newman
The Court Of Appeals For The Federal Circuit, After Three Decades, Pauline Newman
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
A Road To Unification: Patent Litigation In The United Kingdom 1990-2012, Justin Watts, Tom Alkin
A Road To Unification: Patent Litigation In The United Kingdom 1990-2012, Justin Watts, Tom Alkin
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Technology And Intellectual Property: Out Of Sync Or Hope For The Future?, Bradford L. Smith
Technology And Intellectual Property: Out Of Sync Or Hope For The Future?, Bradford L. Smith
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
A Twenty-Year Retrospective On United States Trademark Law In Ten Cases, Marshall Leaffer
A Twenty-Year Retrospective On United States Trademark Law In Ten Cases, Marshall Leaffer
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Him’S Role In European Trademark Harmonization: Past, Present And Future, Paul Maier
Him’S Role In European Trademark Harmonization: Past, Present And Future, Paul Maier
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Trademark Law Harmonization In The European Union: Twenty Years Back And Forth, William Robinson, Giles Pratt, Ruth Kelly
Trademark Law Harmonization In The European Union: Twenty Years Back And Forth, William Robinson, Giles Pratt, Ruth Kelly
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Copyright 1992-2012: The Most Significant Development?, Jane C. Ginsburg
Copyright 1992-2012: The Most Significant Development?, Jane C. Ginsburg
Fordham Intellectual Property, Media and Entertainment Law Journal
On the occasion of the twentieth anniversary of the Fordham Intellectual Property Law & Policy Conference, its organizer, Professor Hugh Hansen, planned a session on “U.S. Copyright Law: Where Has It Been? Where Is It Going?” and asked me to look back over the twenty years since the conference’s inception in order to identify the most important development in copyright during that period. Of course, the obvious answer is “the Internet,” or “digital media,” whose effect on copyright law has been pervasive. I want to propose a less obvious response, but first acknowledge that digital media and communications have presented …
Copyright In Europe: Twenty Years Ago, Today And What The Future Holds, P. Bernt Hugenholtz
Copyright In Europe: Twenty Years Ago, Today And What The Future Holds, P. Bernt Hugenholtz
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
From Microsoft To Google: Intellectual Property, High Technology, And The Reorientation Of U.S. Competition Policy And Practice, William E. Kovacic
From Microsoft To Google: Intellectual Property, High Technology, And The Reorientation Of U.S. Competition Policy And Practice, William E. Kovacic
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Toward A Limited Right Of Publicity: An Argument For The Convergence Of The Right Of Publicity, Unfair Competition And Trademark Law, Andrew Beckerman-Rodau
Toward A Limited Right Of Publicity: An Argument For The Convergence Of The Right Of Publicity, Unfair Competition And Trademark Law, Andrew Beckerman-Rodau
Fordham Intellectual Property, Media and Entertainment Law Journal
The right of publicity — the most recently developed type of intellectual property — allows a person to control commercial use of his or her identity. The scope of the right has expanded significantly since its inception because many courts and commentators have misinterpreted it, viewing it as a pure property right justified by a labor or unjust enrichment theory. Rather, this article contends that it should be evaluated in light of the utilitarian justification for intellectual property law. Rewarding people by allowing them to monetize their public persona is not the goal of the right of publicity. The goal …
Evolution Or Mutation?: The Elimination Of High Mark Similarity Standards In Federal Dilution Law, Matthew A. Karmel
Evolution Or Mutation?: The Elimination Of High Mark Similarity Standards In Federal Dilution Law, Matthew A. Karmel
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Graduated Response American Style: “Six Strikes” Measured Against Five Norms, Annemarie Bridy
Graduated Response American Style: “Six Strikes” Measured Against Five Norms, Annemarie Bridy
Fordham Intellectual Property, Media and Entertainment Law Journal
In 2008, in recognition of the DMCA’s inadequacy in the face of P2P file sharing, and with the high-profile case of Arista Records v. Lime Group pending in federal district court in New York, then New York State Attorney General Andrew Cuomo began pressuring broadband providers to agree voluntarily to play a greater role in fighting online infringement. Subsequently, the Obama administration, represented nationally by the Office of the Intellectual Property Enforcement Coordinator (IPEC) and internationally by the Office of the United States Trade Representative (USTR), expressly endorsed the concept of privately negotiated anti-piracy collaborations between corporate rights owners and …
News On The Internet, Robert Denicola
News On The Internet, Robert Denicola
Fordham Intellectual Property, Media and Entertainment Law Journal
Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of "their" news on the internet. Financial services companies are unhappy about the distribution of their "hot" stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional …
Red Card: Using The National Football League’S “Rooney Rule” To Eject Race Discrimination From English Professional Soccer’S Managerial And Executive Hiring Practices, Jeremy Corapi
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.