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Fall 2023 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger Schechter
Fall 2023 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger Schechter
GW Law Faculty Publications & Other Works
This Fall 2023 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes three Supreme Court decisions as principal cases: the fair use cases of Google LLC v. Oracle America, Inc. (p. 23) and Andy Warhol Foundation v. Goldsmith (p. 41) and the 2020 decision about copyright protection for state statutes, Georgia v. Public.Resources.Org (p. 74).. (Because there are now so many Supreme Court fair use cases to cover, this supplement also includes a note on Harper & Row, Publishers v. Nation …
Copyright: A Contemporary Approach, Robert Brauneis, Roger Schechter
Copyright: A Contemporary Approach, Robert Brauneis, Roger Schechter
GW Law Faculty Publications & Other Works
This Fall 2022 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes three new principal cases. The first two are Supreme Court decisions: the 2021 fair use decision in Google LLC v. Oracle America, Inc. (p. 18), and the 2020 decision about copyright protection for state statutes in Georgia v. Public.Resources.Org (p. 58).. The third is an excerpt from the Second Circuit’s fair use decision in Andy Warhol Foundation v. Goldsmith (p.37), a decision that the Supreme Court has decided to …
Fall 2021 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter
Fall 2021 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter
GW Law Faculty Publications & Other Works
This Fall 2021 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes two new principal cases, both Supreme Court decisions: the 2021 fair use decision in Google LLC v. Oracle America, Inc., and the 2020 decision about copyright protection for state statutes in Georgia v. Public.Resources.Org. The supplement also includes notes on many other cases, and a few new features that we thought would enhance study of U.S. copyright law. In light of the passage of the Music Modernization Act in …
Understanding Copyright's First Encounter With The Fine Arts: A Look At The Legislative History Of The Copyright Act Of 1870, Robert Brauneis
Understanding Copyright's First Encounter With The Fine Arts: A Look At The Legislative History Of The Copyright Act Of 1870, Robert Brauneis
GW Law Faculty Publications & Other Works
In 1870, Congress made its single largest addition of categories of copyrightable subject matter, expanding copyright protection to cover “painting[s], drawing[s], chromo[s], statue[s], statuary, and . . . models or designs intended to be perfected as works of the fine arts.” For the first time, it included works not designed or intended to be created and distributed in multiple copies, and it aligned copyright with the “fine arts” as opposed to the “mechanical arts,” a revision of the earlier understanding that copyright would cover “Science” as opposed to the “Useful Arts.” Why did Congress so act?
A thorough examination of …
Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis
Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis
GW Law Faculty Publications & Other Works
For over 150 years, federal copyright law in the United States reflected and reinforced the model ofmusic as a two-stage art of composition and performance. Copyright protected scores, the stable, visually perceptible result of the deliberative activity of composition. It did not protect performances, theevanescent, unrepeatable, purely aural realizations of scores. Even as protection was extended tomusical sound recordings, copyright law has maintained a strong distinction between composition andperformance. In the last several decades, however, developments in sound technologies and their uses by musicians and listeners have substantially undermined that distinction. Written notation often no longer figures in any stage …
Copyright And The World's Most Popular Song, Robert Brauneis
Copyright And The World's Most Popular Song, Robert Brauneis
GW Law Faculty Publications & Other Works
"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due …
The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis
The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis
GW Law Faculty Publications & Other Works
In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American …
Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy
Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy
GW Law Faculty Publications & Other Works
Intellectual property protects investments in the production of information, but the literature on the topic has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free-riding on information about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage and discouraging innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, …
Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff
Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff
GW Law Faculty Publications & Other Works
Countless high profile cases like the recent patent litigation threatening to shut down the BlackBerry® service have long drawn sharp criticism; and in response, most of the intellectual property (IP) literature argues for the use of weaker, or liability rule, enforcement as a tool for solving the problems of anticompetitive effects and downstream access while still providing sufficient rewards to IP creators. This paper takes an unconventional approach under which rewards don't matter much, but coordination does matter a great deal. The paper shows how stronger, or property rule, enforcement facilitates the good type of coordination that increases competition and …
An Industrial Organization Approach To Copyright Law, Michael B. Abramowicz
An Industrial Organization Approach To Copyright Law, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
Although copyright’s chief goal is often said to be the provision of incentives for producing new works, the literature on copyright rarely addresses how proposed changes in copyright law would have meaningful effects on the variety of copyrighted works available to consumers. With a focus on the economics of product differentiation and rent dissipation analysis, this Article elaborates on the insight that marginal copyrighted works are not likely to produce large contributions to social welfare and argues that the greater the success of copyright law in generating large numbers of works, the more copyright law should care about access. Part …
The Basics Matter: At The Periphery Of Intellectual Property, F. Scott Kieff, Troy A. Paredes
The Basics Matter: At The Periphery Of Intellectual Property, F. Scott Kieff, Troy A. Paredes
GW Law Faculty Publications & Other Works
Controversies often arise at the interfaces where intellectual property ("IP") law meets other topics in law and economics, such as property law, contract law, and antitrust law. Participants in the debates over how to mediate these interfaces often view each interface as a special case deserving unique treatment under the law. The doctrines of copyright and patent misuse are cases in point: they graft select antitrust principles onto copyright or patent law, even though there is an entirely distinct body of law - antitrust law - designed to deal with the putative concerns about competition that allegedly give rise to …
The Case Against Copyright: A Comparative Institutional Analysis Of Intellectual Property Regimes, F. Scott Kieff
The Case Against Copyright: A Comparative Institutional Analysis Of Intellectual Property Regimes, F. Scott Kieff
GW Law Faculty Publications & Other Works
Contemporary debates over intellectual property ("IP") generally evidence positions that appear to line up at opposite ends of the same axis, with one side arguing for more rights for IP owners under each major regime - patent, trademark, and copyright - and the other side arguing for fewer. Approaching from what some may see as a "more" IP view, this paper offers the counterintuitive suggestion to consider abolishing one of these IP regimes - copyright, at least with respect to the entertainment industry, which represents one of that regime's most commercially significant users. This realization is in fact consistent with …
Contrived Conflicts: The Supreme Court Versus The Basics Of Intellectual Property Law, F. Scott Kieff
Contrived Conflicts: The Supreme Court Versus The Basics Of Intellectual Property Law, F. Scott Kieff
GW Law Faculty Publications & Other Works
Asked by conference organizers to consider the impact of the Supreme Court on intellectual property this millennium, this essay offers the view that the Supreme Court's intellectual property decisions by its present members generally are premised upon what may be viewed as contrived conflicts among bodies of law. Proceeding from this faulty foundation, the Court's efforts to resolve those conflicts subsequently have generated bodies of judge-made law that frustrate in important ways the basic statutory framework of intellectual property law. Examples of cases employing this problematic approach include Bonito Boats, Dastar, Warner-Jenkinson, Festo, TrafFix, and Holmes. Avoiding the contrivances not …
Justice Between Authors, Dawn C. Nunziato
Justice Between Authors, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent …
When You Wish Upon A Star: Explaining The Cautious Growth Of Royalty-Backed Securitization, Lisa M. Fairfax
When You Wish Upon A Star: Explaining The Cautious Growth Of Royalty-Backed Securitization, Lisa M. Fairfax
GW Law Faculty Publications & Other Works
This article focuses on the phenomenon of securitizing future royalties of entertainers, illustrating why securitzation of such royalties has not been embraced more enthusiastically. The article begins by describing the securitization process in general and the differences between mortgage-backed and asset-backed securities. The article then examines the benefits of securitization as applied to entertainment royalties. Benefits of securitization include immediate liquidity, less expensive capital, and diversification of the suppliers of the originator’s funding. However, securitization does not make sense for many entertainers unless they need large sums of cash. Moreover, securitizing royalties may not be viable because it creates a …