Law Commons^™

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 …

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editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content.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

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

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 …

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

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 …

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

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 …

Patent Forfeiture, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Patent law doesn't look kindly on patent owners who engage in wrongdoing involving the patent. The U.S. Supreme Court and lower courts have refused to enforce patents tainted with inequitableness, fraud, or bad faith. This issue typically arises in patent litigation when an accused infringer asserts that the patent should be unenforceable if the patentee engaged in one of four proscribed activities: inequitable conduct (deliberate misrepresentations or omissions of material information from the Patent Office); patent misuse (anticompetitive licensing practices); unclean hands (business or litigation misconduct); or waiver/estoppel (a lack of candor before a standard-setting organization). This seems right--a patentee …

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

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 …

Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech

Vanderbilt Law School Faculty Publications

Copyright law provides that when two or more authors create a single 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 …

Why Can’T We Be Frands?: Anti-Suit Injunctions, International Comity, And International Commercial Arbitration In Standard-Essential Patent Litigation, Raghavendra R. Murthy

Vanderbilt Law Review

Picking up a smartphone to contact someone across the globe isfacilitated by technical standards like 5G. These standards allow for technological compatibility worldwide. For instance, a 5G capable device can connect to 5G networks anywhere in the world because the same 5G standard is used globally. Standards, particularly those integral to the telecommunications industry, are also highly complex and contain many patents that are necessarily infringed when the standard is implemented. To avoid rampant patent infringement, owners of these standard-essential patents (“SEPs”) are required to license them to standard implementers at fair, reasonable, and non-discriminatory (“FRAND”) rates when their patents …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law Review

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation's development. For patents, prior art is paramount. An invention can't be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn't care if a creative work happens to resemble its predecessors, only that it isn't actually copied from them. In principle, then, outside of the narrow …

This Content Is Unavailable In Your Geographic Region: The United States' And The European Union's Implementation Of Anti-Circumvention Measures, Kyle Berry

Vanderbilt Journal of Transnational Law

Recently, people streaming movies and TV shows have begun to use virtual private networks (VPNs) to access content that streaming services restrict to certain geographic regions. Because of the ambiguity in international law and the implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty, domestic law fails to offer streaming services a recourse to sue foreign VPN users. The WIPO Copyright Treaty established an anti-circumvention provision that would seem to apply to using VPNs to stream from other countries. But because of the provision's ambiguity, many of the WIPO Copyright Treaty member countries have adopted different standards. This problem …

Ai Derivatives: The Application To The Derivative Work Right To Literary And Artistic Productions Of Ai Machines, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. This Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, this Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is …

A Modern Reconceptualization Of Copyrights As Public Rights, Matthew L. Pangle

Vanderbilt Journal of Entertainment & Technology Law

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles-—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights. …

Barriers To Criminal Enforcement Against Counterfeiting In China, Daniel C.K. Chow

Vanderbilt Journal of Entertainment & Technology Law

Multinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.

Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose …

Unauthorized And Unwise: The Lawful Use Requirement In Trademark Law, Robert Mikos

Vanderbilt Law School Faculty Publications

For decades, the United States Patent and Trademark Office ("PTO") has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this "lawful use requirement," the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule 1 controlled substances to mislabeled soap. This Article subjects the Agency's lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law School Faculty Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

A Compulsory Solution To The Machine Problem, Cole G. Merritt

Vanderbilt Law School Faculty Publications

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 …

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

Unauthorized And Unwise: The Lawful Use Requirement In Trademark Law, Robert A. Mikos

Vanderbilt Law Review

For decades, the United States Patent and Trademark Office (“PTO”) has required trademark owners to comply with sundry nontrademark laws governing the sale of their trademarked goods and services. Pursuant to this “lawful use requirement,” the Agency has refused or even cancelled registration of thousands of marks used on everything from Schedule I controlled substances to mislabeled soap. This Article subjects the Agency’s lawful use requirement to long-overdue scrutiny. It suggests that in requiring compliance with other laws for registration, the PTO has lost sight of the one statute it is supposed to administer. In the process, the Agency has …

A Machete For The Patent Thicket: Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic

Vanderbilt Law Review

Outrageous drug prices have dominated news coverage of the American healthcare system for years. Yet despite widespread condemnation of skyrocketing drug prices, nothing seems to change. Pharmaceutical companies can raise drug prices with impunity because they hold patents on their drugs, which give them monopolies. These monopolies are only supposed to last twenty years, and then competing lower-cost drugs like generics can enter the market, driving down the costs of pharmaceuticals for all. But pharmaceutical companies have created “patent thickets,” dense webs of overlapping patents surrounding one drug, which have artificially extended the companies’ monopolies for years or even decades …

Breaking The Status Quo Of International Design Law: How The United States' Design Law Frustrates The Purpose Of The Hague Agreement, Nicholas P. Mack (J.D. Candidate)

Vanderbilt Journal of Transnational Law

This Note explores how the United States' substantive law frustrates the purpose of an international procedural agreement. The Hague Agreement Concerning the International Registration of Industrial Designs revolutionized the process of applying for industrial design protections on a global scale. The Hague Agreement's purpose is to support easily and efficiently acquired industrial design protections in contracting parties to the agreement by simplifying procedures for obtaining protection. The United States-a country without a coherent and dedicated industrial design law-joined this agreement with effect in 2015, allowing designers around the world to easily apply for industrial design protections in the United States. …

The Library Of Babel For Prior Art: Using Artificial Intelligence To Mass Produce Prior Art In Patent Law, Lucas R. Yordy

Vanderbilt Law Review

Artificial intelligence is playing an increasingly important role in the invention and innovation processes of our society. To date, though, much of the academic discussion on the interaction of artificial intelligence and the patent system focuses on the patentability of inventions produced by artificial intelligence. Little attention has been paid to organizations that are seeking to use artificial intelligence to defeat the patentability of otherwise patent-worthy inventions by mass producing prior art. This Note seeks to highlight the consequences of allowing mass-produced, AI-generated prior art to render valuable inventions unpatentable. Specifically, this Note concludes that AI-generated prior art decreases the …

Intellectual Property As A Determinant Of Health, Ana S. Rutschman

Vanderbilt Journal of Transnational Law

Public health literature has long recognized the existence of determinants of health, a set of socioeconomic conditions that affect health risks and health outcomes across the world. The World Health Organization defines these determinants as “forces and systems” consisting of “factors combin[ing] together to affect the health of individuals and communities.” Frameworks relying on determinants of health have been widely adopted by countries in the global South and North alike, as well as international institutional players, several of which are direct or indirect players in transnational intellectual property (IP) policymaking. Issues raised by the implementation of IP policies, however, are …

The Research Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law's broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new form …

When Art Might Constitute A Taking: A Takings Clause Inquiry Under The Visual Artists Rights Act, Thomas A. Shelburne

Vanderbilt Journal of Entertainment & Technology Law

At first glance, a federal statute protecting the moral rights of artists and their artwork seems like a unanimous victory. But it turns out that government action protecting certain works of art attached to buildings may give rise to a valid takings clause claim under the Fifth Amendment. Without compensation, a regulation requiring a landowner to maintain someone else’s property on his land would constitute a taking. The Visual Artists Rights Act of 1990 (VARA) requires landowners to maintain protected artwork attached to buildings or potentially face statutory damages. Although only one court has heard and subsequently denied a takings …

Pausing The Game: Esports Developers’ Copyright Claims To Prevent Or Restrict Tournament Play, Alexander Tu

Vanderbilt Journal of Entertainment & Technology Law

Unlike traditional sports, esports are-—at their core—-video games, which must be designed and programmed by a game company. These video game developers are the copyright owners of the esports titles they create, which, in turn, results in continued developer control even after a player has purchased or downloaded the game. Because there is no relevant court precedent that is directly applicable to the world of esports, game developers unimpededly exert their copyright authority in order to restrict third-party tournaments that utilize their games, and in some cases, prevent those events from occurring altogether. This use of copyright authority is an …