Law Commons^™

When Does A Work Infringe The Derivative Works Right Of A Copyright Owner?, Amy B. Cohen

Faculty Scholarship

Consider the following fact situation: A, an artist, designs art work and registers the copyright in that art work. A then licenses P to publish note cards using the art work. The note cards are published by P and distributed to retail card stores. T purchases several hundred cards and then takes each card, glues it carefully to a ceramic tile, and sells the tiles for a profit as "tile art" that purchasers can use to decorate walls, counters, even floors. If A now sues T for copyright infringement, how should the court rule? Has T infringed A's copyright?

In …

"Arising Under" Jurisdiction And The Copyright Laws, Amy B. Cohen

Faculty Scholarship

Does a claim arise under the copyright laws when a critical allegation is that a party's use of a copyrighted work is unpermitted and infringing because such use was limited by the terms of a contract? The federal courts of appeals have confronted this question in a number of recent cases. Many have concluded that federal jurisdiction exists, reversing district court judgments of dismissal for lack of subject matter jurisdiction.

Despite these repeated attempts to resolve the matter, however, this question continues to confound the courts, which lack a clear approach to defining when a claim arises under the copyright …

Masking Copyright Decisionmaking: The Meaninglessness Of Substantial Similarity, Amy B. Cohen

Faculty Scholarship

Traditionally courts have place great weight on the issue of substantial similarity in adjudicating copyright infringement lawsuits. Once success is proven, a court will usually find infringement if the works are viscerally determined to be substantially similar. This Article criticizes the traditional approach as failing adequately to distinguish copying from misappropriation, failing adequately to distinguish ideas from expression, failing to provide adequate guidelines for determining misappropriation, and as overlapping with fair use determinations. The Article also criticizes variations on the traditional approach imposed by the Third and Ninth Circuit Courts of Appeal as not remedying the traditional approach's fundamental shortcomings. …