Law Commons^™

No Flash Photography Please: An Analysis Of Corporate Use Of Street Art Under Section 120(A) Of The Awcpa, Sierra Epke

University of Miami Law Review

Street art and graffiti are pervasive artforms found throughout the world and throughout history. While the artforms have been associated with crime and vandalism in the past, they have increasingly been featured in different capacities from art galleries to corporate marketing campaigns. With street art’s growing recognition and popularity, corporations have begun to use the medium to target new customer bases. In some situations, the use of artwork in marketing campaigns is unsanctioned by the artist. Therefore, courts have now begun to examine the balance between copyright protection for street artists and the corporate use of street art. Section 120(a) …

Virtual Stardom: The Case For Protecting The Intellectual Property Rights Of Digital Celebrities As Software, Alexander Plansky

University of Miami Business Law Review

For the past several decades, technology has allowed us to create digital human beings that both resemble actual celebrities (living or deceased) or entirely virtual personalities from scratch. In the near future, this technology is expected to become even more advanced and widespread to the point where there may be entirely virtual celebrities who are just as popular as their flesh-and-blood counterparts—if not more so. This raises intellectual property questions of how these near-future digital actors and musicians should be classified, and who will receive the proceeds from their performances and appearances. Since, in the near-term, these entities will probably …

Copyright And Political Campaigns: How Much Control Should A Copyright Owner Have Over The Use Of Their Musical Work In A Political Campaign, Jared Zim

University of Miami Business Law Review

Music often tells a powerful story, driving emotional connections. As a result, politicians rely on music in every aspect of their political campaigns from political advertisements to campaign rallies. There is a long history of such political uses of music, often without an artist’s permission. While most disputes over such uses have ended in either settlement or the campaign stopping use of the infringed work, former President Donald Trump’s unauthorized use of music on the campaign trail sparked countless artist complaints. The complaining musicians feared any implication that they endorsed Trump and did not want any association with a political …

Making Small Claims Work For Copyright Law: Why The Decisions Of An Unprecedented Judicial Authority Should Hold Precedential Weight, Emma C. Johnson

University of Miami Business Law Review

Individual creators increasingly struggle to protect their copyrights, especially in the digital age. It is already often difficult for many creators to make a living, and more often than not, they cannot afford to pay thousands in court and legal fees to bring a copyright infringement claim. With the passing of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (the “CASE Act”) in December of 2020, Congress and the United States Copyright Office formed a federal small claims court for creators in such positions to be able to enforce their copyrights.

The CASE Act seeks to give small copyright …

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

Star–Crossed Copyrights: The Story Of How Mexico Defied Civil Law Traditions By Infusing Common Law Ideologies Into Its Audiovisual And Motion Picture Copyright Regulations, Camila Chediak

University of Miami Inter-American Law Review

This Note was inspired by the out–of–the–ordinary, yet practical approach that Mexico chose to implement when it waived certain longstanding copyright moral rights principles in favor of the U.S. common law work–made–for–hire approach for its audiovisual and motion picture regulations. Since the inception of its copyright law, Mexico has strictly adhered to the civil law ideologies that are generally standard to civil law countries, particularly in its loyalty to the original creators of creative works through the moral rights doctrine. The United States, on the other hand, favors utilitarian ideologies that emphasize the societal importance of fostering innovation through the …

International Rights Affecting The Covid–19 Vaccine Race, Samantha Johnson

University of Miami Inter-American Law Review

The impact of the COVID–19 pandemic has been felt world-wide, and despite having several vaccines in the market at this point, there are still issues of accessibility for certain countries. International intellectual property law has been a breeding ground for the exploration of intellectual curiosity and creation as it provides strong protections to creators. These strong protections have allowed for the monopolization of certain goods, such as vaccines, under the concept of patents. While patents are important to incentivize pharmaceutical companies to create life–saving medicines, these protections have also become a barrier for access to medicines, especially in less–developed countries. …

“Sorry,” But I Didn’T Release It: How The Court’S Analysis Of The Fair Use Doctrine In Chapman V. Maraj Protects Innovation And Creativity In The Music Industry, Samantha Ross

University of Miami Business Law Review

The fair use doctrine is an important affirmative defense to copyright infringement when a particular use does not interfere with copyright law’s primary goal of promoting creativity for the public good. Artists and songwriters frequently experiment with copyrighted music without permission before seeking licensing approval from the original rights holders to “sample” or “replay” the work. In Chapman v. Maraj—a copyright infringement suit brought by Tracy Chapman against Nicki Minaj—the United States District Court for the Central District of California held that experimenting with a copyrighted musical composition for the purpose of creating a new work with an intent to …

Sound Familiar? Digital Sampling Is Taking Center Stage, Logan Zucchino

University of Miami Business Law Review

In 2018, Kendrick Duckworth, better known by his stage-name Kendrick Lamar, became the first non-classical or jazz musician to win the Pulitzer Prize in Music. Equally as surprising, the album contained a magnitude of digital sampling. As digital sampling has become more prevalent since the 1980’s, courts have differed on how to handle the issue. By 2016, the Sixth and Ninth Circuit Courts of Appeals established a circuit split on the issue, with one holding that unlicensed digital sampling is per se unlawful, and the other holding that a more lenient test is needed. Courts have continued to struggle with …

Equitable Defenses In Patent Law, Christa J. Laser

University of Miami Law Review

In patent law, “unenforceability” can have immense consequences. At least five equitable doctrines make up the defense of “unenforceability” as it was codified into the Patent Act in 1952: laches; estoppel; unclean hands; patent misuse; and according to some, inequitable conduct. Yet in the seventy years since incorporation of equitable defenses into the patent statute, the Supreme Court has not clarified their reach. Indeed, twice in the last four years, the Supreme Court avoided giving complete guidance on the crucial questions of whether, and when, such equitable defenses are available to bar damages in cases brought at law.

Several interpretive …

Copyright’S Facelift: An Analysis Of The New Look Of Copyright Following The Music Modernization Act And The United States-Mexico-Canada Agreement, Octavious A. Buiey Jr.

University of Miami Inter-American Law Review

No abstract provided.

The Law As Uncopyrightable: Merging Idea And Expression Within The Eleventh Circuit’S Analysis Of “Law-Like” Writing, Christina M. Frohock

University of Miami Law Review

The Eleventh Circuit recently issued an opinion in Code Revision Commission v. Public.Resource.Org, Inc. that meditates on the law as much as resolves a dispute. For that reason alone, attention should be paid. A commission acting on behalf of the Georgia General Assembly and the State of Georgia filed a copyright infringement action against a nonprofit organization that had disseminated annotated state statutes. The Eleventh Circuit took these modest facts and delivered a philosophical analysis of the nature of law, finding that statutory annotations are outside copyright protection because the true author of such “law-like” writing is “the People.” …

The Unlikely Duo That Shocked The Intellectual Property World And Why The Supreme Court Was The Chosen One To Restore Balance, Nicholas Dilts

University of Miami Law Review

The United States Congress passed the Leahy Smith America Invents Act in 2011 in an effort to streamline the patent system and reduce patent litigation, allowing the United States to continue to be competitive globally. The Act enabled the U.S. Patent Office to facilitate patent challenges through an administrative process called inter partes review, an adversarial proceeding before the newly established Patent Trial and Appeal Board that was designed to be a cheaper and more efficient alternative for post-grant patent review than litigation in front of the federal district courts. In the years that followed, the Patent Trail and Appeal …

Canada’S Summary Trial Procedure: A Viable Alternative To Summary Judgment On Trademark Likelihood Of Confusion Actions In The United States, Elaine Kussurelis

University of Miami Inter-American Law Review

No abstract provided.

"It's Your Right…!": A Legal History Of The Bacardi Cocktail, Brian L. Frye

University of Miami Business Law Review

No abstract provided.

The Sample Solution: How Blockchain Technology Can Clarify A Divided Copyright Doctrine On Music Sampling, Angelo Massagli

University of Miami Business Law Review

This article will examine how blockchain technology can clarify the complex and inconsistent judicial approach to the copyright doctrine regarding music sampling. As it stands today, circuit courts are divided over how to handle copyright infringement stemming from unlicensed music sampling. The first approach is simple: if you want to sample, get a license. The second approach is more lenient and applies a de minimis standard that forces courts to make fact sensitive, case–by–case decisions regarding whether or not the sample of the original work is sufficient enough to be defined as an infringement. The reason for this split in …

The Rearden Problem: Defining Ownership In A Changing Landscape, Jake Altobello

University of Miami Business Law Review

This paper will address the problem that is currently being confronted by the Walt Disney World Company; who owns the creative works made from software stolen from the original creator? Furthermore, does the court’s application of the “lion’s share” theory effectively further the Constitution’s intent to promote the growth of arts and sciences? By looking at the historical progression of intellectual property law and the holdings of key cases in copyright law, this paper will distill into a summary of key concerns the jurisprudence regarding associating property rights in intellectual property. By narrowing the key considerations of the court, this …

“Wake Up, Mr. West!”: Distinguishing Albums And Compilations For Statutory Damages In Copyright Within A Streaming–Centric Music Economy, Tyler Laurence

University of Miami Business Law Review

The concept of the music album has been a vital cornerstone of the recorded music industry since its adoption in the form of the long–play vinyl record in 1948. For over sixty years, the ability for artists to package a cohesive collection of performances has remained of paramount priority and an art within itself, notwithstanding the flurry of technological innovations that have altered the album’s size, shape, length, and interactivity. These collections of songs have even withstood the so–called “era of unbundilization,” as digital music services declared a new piecemeal distribution standard of albums through the turn of the century. …

Samsung V. Apple: Taking A Bite Out Of The Design Patent “Article Of Manufacture” Controversy, Elizabeth M. Gil

University of Miami Business Law Review

Smartphones have become a universal item. A smartphone is comprised of hundreds of thousands of patented inventions, many of which are design patents.1It is these design patents that are at the center of the highly-contested case of Samsung Electronics Co., Ltd. v. Apple Inc., which involves three of the design patents within Apple’s iPhone. Beginning in 2011, Apple and Samsung have been in a seemingly never-ending litigious battle over these design patents with the case commencing in the district court, climbing up to the Supreme Court of the United States, and returning to the district court. It is this …

Counter-Ip Conspiracies: Patent Alienability And The Sherman Antitrust Act, Hannibal Travis

University of Miami Law Review

Anticompetitive collusion by intellectual property owners frequently triggered antitrust enforcement during the twentieth century. An emerging area of litigation and scholarship, however, involves conspiracies by potential licensees of intellectual property to reduce or eliminate opportunities by a property’s holders to profit from it, or even to recoup their investments in creating and protecting it. The danger is that potential licensees will collude with one another to suppress royalties or sale prices. This Article traces the history of such litigation, provides an overview of the scholarly and theoretical arguments against monopsonistic or oligopsonistic collusion against licensors of intellectual property, and summarizes …

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

University of Miami Business Law Review

“Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

Tc Heartland: The Patent Venue Question Is Informed By Personal Jurisdiction Issues, Richard Samp

University of Miami Business Law Review

No abstract provided.

Patent Venue Exceptionalism After Tc Heartland V. Kraft, Ana Santos Rutschman

University of Miami Business Law Review

No abstract provided.

Brazil’S New Path To Meaningful Intellectual Property Protection, Luiz Miranda

University of Miami Inter-American Law Review

Today in Brazil, it takes over eleven years to receive legal rights to an invention by means of a patent. This state of affairs provides inadequate intellectual property protection for inventors and businesses, hampering Brazil’s desire to accelerate innovation, entrepreneurship, and economic growth through a national patent system. But a new Joint Agreement between the Government of the United States and the Government of the Federative Republic of Brazil could mean rescue is on the way. Both governments agreed to engage in patent work sharing programs between the two patent offices, in hopes of increased efficiency. Yet, some scholars have …

Exclusive Groove: How Modern Substantial Similarity Law Invites Attenuated Infringement Claims At The Expense Of Innovation And Sustainability In The Music Industry, Mark Kuivila

University of Miami Law Review

As of 2015, the American entertainment market was worth about $600 billion, and it is projected to substantially exceed that figure in coming years. The global entertainment industry is worth about $2 trillion, meaning the U.S. is responsible for over a quarter of total global entertainment revenue. These statistics illustrate the staggering impact of the American entertainment industry on the global markets for film, television, and music. The American music industry is particularly dominant in its global market, earning half of world-wide sync revenues and accounting for nearly a third of all global music revenue. Entertainment is clearly the United …

A Passion For Fashion: The International Trade Commission Should “Step Up” Its Role In The Enforcement Of Design Patents, Nikki Rigl

University of Miami International and Comparative Law Review

No abstract provided.

Not In It For The Long Run: China's Solution For Compliance With Trips Requires More Than A Nine-Month Campaign, Devon Spencer

University of Miami International and Comparative Law Review

No abstract provided.

Made In America: Is The Idpppa The Answer To The United States Fashion Industry's Quest For Design Protection?, Courtney Daniels

University of Miami Business Law Review

No abstract provided.

The Google Police: How The Indictment Of The Pirate Bay Presents A New Solution To Internet Piracy, Bernard A. Mantel

University of Miami Business Law Review

No abstract provided.

Mixed Signals: How Mixtapes Have Blurred The Changing Legal Landscape In The Music Industry, Meredith L. Schantz

University of Miami Business Law Review

No abstract provided.