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Articles 1 - 26 of 26
Full-Text Articles in Law
Copyright's Lost Art Of Substantial Similarity, Sandra M. Aistars
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 …
Regulation Priorities For Artificial Intelligence Foundation Models, Matthew R. Gaske
Regulation Priorities For Artificial Intelligence Foundation Models, Matthew R. Gaske
Vanderbilt Journal of Entertainment & Technology Law
This Article responds to the call in technology law literature for high-level frameworks to guide regulation of the development and use of Artificial Intelligence (AI) technologies. Accordingly, it adapts a generalized form of the fintech Innovation Trilemma framework to argue that a regulatory scheme can prioritize only two of three aims when considering AI oversight: (1) promoting innovation, (2) mitigating systemic risk, and (3) providing clear regulatory requirements. Specifically, this Article expressly connects legal scholarship to research in other fields focusing on foundation model AI systems and explores this kind of system’s implications for regulation priorities from the geopolitical and …
Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield
Breaking The Fourth's Wall: The Implications Of Remote Education For Students' Fourth Amendment Rights, Sallie Hatfield
Vanderbilt Journal of Entertainment & Technology Law
As the COVID-19 pandemic forced both public K-12 and higher education institutions to transition to exclusively provide remote education, students’ homes and personal lives were exposed to the government like never before. Zoom classes and remote proctoring were suddenly the norm. Students and their families scrambled to create appropriate offices and classroom spaces in their homes, and many awkward and invasive scenarios soon followed. While many may have been harmlessly captured on camera, like classes that witness a student’s family eating lunch in the background or a dog on the couch, even these harmless instances have insidious implications for the …
The End Of An Era: The Uncertain Future Of Section 230 Immunity For Social Media Platforms, Lillian H. Rucker
The End Of An Era: The Uncertain Future Of Section 230 Immunity For Social Media Platforms, Lillian H. Rucker
Vanderbilt Journal of Entertainment & Technology Law
Major social media platforms (SMPs), such as Facebook, Instagram, and TikTok, have become the primary means of communication for billions of people worldwide. They are the largest modern news distributors and the primary curators of online public discourse. However, the expanding influence of SMPs has led many to publicly scrutinize the content moderation decisions of such platforms, as SMPs regularly remove, block, censor, and ban user-generated content (UGC), including third-party written messages, photos, and videos, at their discretion. Because SMPs exercise immense power and are largely self-regulated, there has been growing public sentiment that SMP content moderation violates Users’ free …
Cancelling Dr. Seuss, Cathay Y.N. Smith
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
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
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 …
Why Punish Pharma For Making Medicine? Preserving Patent Protections And Cutting Consumer Costs, Alex Wharton
Why Punish Pharma For Making Medicine? Preserving Patent Protections And Cutting Consumer Costs, Alex Wharton
Vanderbilt Journal of Entertainment & Technology Law
The push to lower pharmaceutical drug prices has taken a stronger foothold in legislative and executive actions in recent years. With average prices rising continuously over the past decade, many consumers struggle to pay for the medications they need-—insulin being the most often cited example. Accordingly, a variety of solutions have been suggested. Some solutions support reducing barriers for generic drugs to provide competition to the big brands, others push for greater regulation of manufacturers’ ability to price their drugs, and some proposals seek greater transparency to promote price negotiations, especially when compared to prices abroad. Most concerningly, however, one …
The Hidden Costs Behind Cheap Clothing: Addressing Fast Fashion’S Environmental And Humanitarian Impact, Alexandra L. Bernard
The Hidden Costs Behind Cheap Clothing: Addressing Fast Fashion’S Environmental And Humanitarian Impact, Alexandra L. Bernard
Vanderbilt Journal of Entertainment & Technology Law
The increasing speed at which social media trends come and go has caused fashion trends to accelerate in response to consumers’ ever-changing demands. To keep up with the latest fads, fast fashion companies design their clothing only to withstand a couple of uses before the item is no longer in good condition. The manufacture and discard of cheaply made clothing creates a variety of environmental issues. Brands conceal the treatment and compensation of their workers throughout the supply chain; the available information suggests that garment workers are mistreated. Finally, the disposal of these clothing items creates tension between the United …
Through The Looking Glass With Alice: The Current Application And Future Of Title Ix In Athletics, Josephine (Jo) R. Potuto
Through The Looking Glass With Alice: The Current Application And Future Of Title Ix In Athletics, Josephine (Jo) R. Potuto
Vanderbilt Journal of Entertainment & Technology Law
This Article is a snapshot of the past pervasive discriminatory treatment of women in athletics and where women athletes and women’s athletics currently stand. It discusses some of the new challenges for Title IX enforcement—-female transgender athletes and treatment of name, image, and likeness revenues now open to college athletes. It reviews research regarding the physiological, hormonal, metabolic, body size and composition, and brain and neurological differences between men and women and how these factors impact both athletic performance and athletic interest. Finally, this Article concludes that the Title IX three-pronged test to assure gender equity in athletic participation opportunities …
Title Ix Vs. Ncaa: A Gameplan For Championship Equity, Leigh E. Friestedt
Title Ix Vs. Ncaa: A Gameplan For Championship Equity, Leigh E. Friestedt
Vanderbilt Journal of Entertainment & Technology Law
In 1972, Congress enacted Title IX of the Education Amendments Act (Title IX) to prohibit sex-based discrimination in “any education program or activity receiving federal financial assistance.” While the original legislation did not stipulate “athletics,” Title IX has had a profound impact on intercollegiate sports by expanding the athletic opportunities for women as a covered “program or activity.” However, fifty years after the enactment of Title IX, there are still significant disparities between men’s and women’s intercollegiate athletics, most notably at the high-profile National College Athletics Association (NCAA or Association) Championships.
In 2021, the NCAA hosted the men’s and women’s …
Taking Tennessee Electric With A Private Vehicle Charging Market: An Ev Infrastructure Policy For Conservative States, Claire Bonvillain J.D. Candidate
Taking Tennessee Electric With A Private Vehicle Charging Market: An Ev Infrastructure Policy For Conservative States, Claire Bonvillain J.D. Candidate
Vanderbilt Journal of Entertainment & Technology Law
The transition from petroleum to electricity as a fuel source for vehicles is an essential step in the effort to stop harmful climate change. The transportation sector currently produces more carbon emissions in the United States than any other area. Recognizing this, the federal government and several states have recently devoted resources to facilitating the transition to large-scale electric vehicle (EV) use. In particular, there must be a nationwide network of EV charging infrastructure so that EV drivers can confidently drive EVs anywhere. Much of the legal research on increasing the number of EV charging facilities and consumer EV purchases …
A Compulsory Solution To The Machine Problem: Recognizing Artificial Intelligence As Inventors In Patent Law, Cole G. Merritt
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
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 …
Something Doesn’T Add Up: Solving Dna Forensic Science Statistical Fallacies In Trial Testimony, Kendall Brooke Kilberger
Something Doesn’T Add Up: Solving Dna Forensic Science Statistical Fallacies In Trial Testimony, Kendall Brooke Kilberger
Vanderbilt Journal of Entertainment & Technology Law
While the limitations of traditional forensic sciences are generally recognized, the presentation of DNA forensic science statistical testimony has widely evaded criticism. This lack of oversight has allowed four DNA forensic science statistical fallacies to plague the legal system: providing statistics without empirical support, the individualization fallacy, the prosecutor’s fallacy, and the defense attorney’s fallacy. These fallacies pose a significant risk to the preservation of justice, as erroneous DNA forensic science statistical testimony plays a critical role in wrongfully convicting innocent defendants.
This Note suggests administering standard jury instructions every time DNA forensic science statistical testimony is presented during trial. …
Co-Authorship Between Photographers And Portrait Subjects, Molly Torsen Stech
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
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 …
The Death Of The Legal Subject, Katrina Geddes
The Death Of The Legal Subject, Katrina Geddes
Vanderbilt Journal of Entertainment & Technology Law
The law is often engaged in prediction. In the calculation of tort damages, for example, a judge will consider what the tort victim’s likely future earnings would have been, but for their particular injury. Similarly, when considering injunctive relief, a judge will assess whether the plaintiff is likely to suffer irreparable harm if a preliminary injunction is not granted. And for the purposes of a child custody evaluation, a judge will consider which parent will provide an environment that is in the best interests of the child.
Relative to other areas of law, criminal law is oversaturated with prediction. Almost …
The Case For Establishing A Collective Perspective To Address The Harms Of Platform Personalization, Aylet Gordon-Tapiero, Alexandra Wood, Katrina Ligett
The Case For Establishing A Collective Perspective To Address The Harms Of Platform Personalization, Aylet Gordon-Tapiero, Alexandra Wood, Katrina Ligett
Vanderbilt Journal of Entertainment & Technology Law
Personalization on digital platforms drives a broad range of harms, including misinformation, manipulation, social polarization, subversion of autonomy, and discrimination. In recent years, policy makers, civil society advocates, and researchers have proposed a wide range of interventions to address these challenges. This Article argues that the emerging toolkit reflects an individualistic view of both personal data and data-driven harms that will likely be inadequate to address growing harms in the global data ecosystem. It maintains that interventions must be grounded in an understanding of the fundamentally collective nature of data, wherein platforms leverage complex patterns of behaviors and characteristics observed …
Competition Upstream Of Amazon, Martin Edwards
Competition Upstream Of Amazon, Martin Edwards
Vanderbilt Journal of Entertainment & Technology Law
The rise of large, market-concentrating technology firms like Amazon, Inc. is driving commentators, regulators, and politicians to rethink the law of antitrust. In particular, “New Antitrust” reformers propose that the narrow focus on consumer welfare has caused antitrust law to stop too short in corralling the broader social and economic consequences of Big Tech’s “bigness.” Proponents of the consumer welfare standard argue that it has worked well to distinguish beneficial competition from harmful aggression and, further, to reduce costly legal uncertainty. There is now momentum for substantial reform to antitrust law and practice and a growing debate about what such …
Rapt Admissions: Comparing Proposed Federal Rule Of Evidence 416 “Rap Shield” With The Rule 412 “Rape Shield”, Patience Tyne
Rapt Admissions: Comparing Proposed Federal Rule Of Evidence 416 “Rap Shield” With The Rule 412 “Rape Shield”, Patience Tyne
Vanderbilt Journal of Entertainment & Technology Law
Creative expression depicting illicit activity can cause jurors to infer improper conclusions about a defendant, even when the jurors attempt to analyze such evidence objectively. When the government seeks to admit a defendant’s creative work into evidence in a criminal trial, courts use existing evidentiary rules to balance the work’s probative value against its risk of unfair prejudice. These rules are supposed to prevent unfair prejudice, but various scholars have shown that courts do not always appreciate how unfairly prejudicial art can be. Rap music presents unique challenges because jurors may fail to discern the work’s literal versus symbolic meaning. …
The Rise And Fall Of The Horseracing Integrity And Safety Act: How Congress Could Save The “Sport Of Kings”, Lucy Mcafee
The Rise And Fall Of The Horseracing Integrity And Safety Act: How Congress Could Save The “Sport Of Kings”, Lucy Mcafee
Vanderbilt Journal of Entertainment & Technology Law
The Horseracing Integrity and Safety Act (HISA) has undergone several unsuccessful changes over the past decade in an effort to change how horseracing is regulated. After Congress successfully passed HISA in 2020, several lawsuits were filed to stop HISA from going into effect. Congress quickly passed an amendment to HISA—which the US Court of Appeals for the Sixth Circuit upheld—seemingly stopping such litigation, but it is clear from opponents’ statements that this is just the beginning. This Note will examine the constitutional arguments’ strengths and weaknesses through precedent to determine whether the long-awaited act, as amended, can stand the test …
Influencing “Kidfluencing”: Protecting Children By Limiting The Right To Profit From “Sharenting”, Charlotte Yates
Influencing “Kidfluencing”: Protecting Children By Limiting The Right To Profit From “Sharenting”, Charlotte Yates
Vanderbilt Journal of Entertainment & Technology Law
Statistics on children’s digital presences are staggering, with an overwhelming majority of children having unique digital identities by age two. The phenomenon of “sharenting” (parents sharing content of their children on social media) can start as early as a sonogram photo or a birth video and evolve into parent-run Instagram and TikTok accounts soon after. Content is often intimate, sometimes embarrassing, and frequently shared without children’s consent. Sharenting poses a myriad of risks to children including identity theft, digital kidnapping, exposure to child predators, emotional trauma, and social isolation. In the face of such significant risks to children’s well-being, one …
An Epidemic In Enforceability: A Growing Need For Individual Autonomy In Health Care Data-Privacy Protection In An Era Of Digital Tracking, Madeline Knight
An Epidemic In Enforceability: A Growing Need For Individual Autonomy In Health Care Data-Privacy Protection In An Era Of Digital Tracking, Madeline Knight
Vanderbilt Journal of Entertainment & Technology Law
The health care system in the United States is under conflicting pressures. From one angle, there is a demand for the highest standard of care, which includes efficient, confidential communications between doctors and patients. From another, however, the technology that has facilitated such efficiency has outpaced the security mechanisms currently in place to protect a long-recognized right to privacy. In an era of data tracking, the important privacy interest that Congress has recognized since 1996 confronts a growing threat of data commodification. Despite significant potential consequences, however, there is neither guaranteed statutory recovery nor cohesion among states for the process …
Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley
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
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 …