Law Commons^™

Political Neutrality In The Rules Of International Sports Federations: Compatible With Fundamental Freedoms?, Ilias Bantekas

Fordham Intellectual Property, Media and Entertainment Law Journal

International sports federations celebrate and impose strict political neutrality in their institutional rules. Such neutrality is inconsistent with the individual rights of athletes to freedom of expression and peaceful assembly. The contractual basis of such restriction is irrelevant because fundamental rights are constitutionally entrenched and cannot be limited by contract or law, save for if the expression incites to violence, hatred, discrimination or is otherwise inconsistent with criminal law. There is no empirical evidence suggesting that restricting the political expression of influential athletes leads to generalized political or other violence. Instead, it is clear that international sports federations, and particularly …

The Jack Daniel’S Dialogues, Michael Grynberg

Fordham Intellectual Property, Media and Entertainment Law Journal

Jack Daniel’s Properties, Inc. v. VIP Products LLC threatened to upend the balance between trademark rights and expressive freedom. While not going as far as it might have, the opinion limits the ability of defendants to resist trademark claims that target artistic or noncommercial speech.

As important as this result is, we should not overlook a fundamental preliminary question. How could a dog chew toy that mocks Jack Daniel’s whiskey be the basis of a viable trademark infringement claim? Answering that question requires discussing deep issues within modern trademark law.

These antecedent questions were not directly before the Court, but …

Photographic Memory: Expanding “News Deserts” Threaten To Erase The Visual Record Of Contemporary American History, Frank D. Lomonte, Lila Greenberg

Fordham Intellectual Property, Media and Entertainment Law Journal

As local newspapers close their doors across America, one of the unheralded casualties of their demise may be the loss of the institutional memory of their communities. Photo morgues maintained by newsroom librarians are an invaluable reference for researchers and filmmakers seeking to trace the visual history of localities. While some forward-thinking news organizations have donated their archival photos for preservation, there appears to be no industrywide plan for doing so, meaning that countless thousands of unpublished—but historically valuable—photos are at risk of destruction as cost-cutting newspapers eliminate their libraries, sell off their buildings, or go out of business entirely. …

Forming A More Perfect Union With Blockchains And Nfts: Why The United States Should Embrace An E-Government, Alexandria Labaro

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note analyzes blockchain and non-fungible token (“NFT”) technology in the government, emphasizing the benefits of technological integration for improved data security and streamlined bureaucratic processes. It follows the growing popularity of “e-government” practices across the globe and considers factors associated with integrating blockchain and NFT technology in U.S. governmental procedures.

Ai Voice Enters The Copyright Regime: Proposal Of A Three-Part Framework, Prachi Patel

Fordham Intellectual Property, Media and Entertainment Law Journal

We are told that our voice is one of the most powerful tools we have. However, is it just as powerful if it can be replicated? Artificial intelligence has developed to the point where it can create an exact clone of a person’s voice. While there have been many advancements in this field, there are few laws that address artificial intelligence and its use. Artificial intelligence has been used to create artificial voices of well-known figures, both deceased and alive, some without their consent. This creates a need to balance the incentivization of technological development and the protection of an …

The Notes You Don’T Play: An Empirical Analysis Of The Ninth Circuit’S Filtration Problem In Music Copyright Cases, Robert D. Capodilupo

Fordham Intellectual Property, Media and Entertainment Law Journal

The Ninth Circuit’s approach to music copyright cases has failed to provide artists with a clear landscape of the boundaries of copyright protection for creative works. Perhaps most disconcerting is the doctrine’s lack of rigid guidance as to which elements of a composition are protected by copyright. Since the court’s controversial ruling in Williams v. Gaye, which showcased the court’s failure to differentiate between protectable and unprotectable musical elements, the literature has taken a greater interest in analyzing the effects of this muddied doctrine. In their 2019 article, Christopher Jon Sprigman and Samantha Fink Hedrick theorize how the doctrine of …

Melodies Manipulated: Intellectual Property & The Music Industry, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

Marilyn Mosby, Founder and Managing Partner of Mahogany Elite Consulting, opened the IPLJ Symposium with her Keynote Address which focused on the cultural, political, and social context surrounding the use of rap lyrics as evidence in criminal prosecutions.

The opening panel, “Do You Get Déjà Vu?,” comprised of Gary Adelman, Partner, Adelman Matz PC; Linna Chen, Senior Legal Counsel, Litigation & Copyright, Spotify; and Ilene Farkas, Partner, Pryor Cashman, and was moderated by Sarah Matz, Partner, Adelman Matz PC, and Adjunct Professor at Fordham University School of Law. The panel discussed recent copyright cases, specifically Williams v. Gaye …

Misappropriation Of Drawing Power (Free-Riding) In Trademarks, Tony Bortolin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article advances the cause of action regarding the Misappropriation of Drawing Power (“free-riding”). It is a form of anti-dilution, along the lines of European Union laws regarding parasitism, and is analogous to other laws such as the protection of personality rights. It could also help settle long-standing debates in the trademark field, such as those regarding dilution by blurring, initial-interest confusion, comparative advertising, and whether and how to protect marks beyond the geographical scope of the plaintiff’s sales (such as protecting U.S. marks used internationally).

Business Empire To Patent Umpire: Amazon And The Ascent Of Platform Patent Adjudication, Shih-Wei Chao

Fordham Intellectual Property, Media and Entertainment Law Journal

A trend in patent law is mounting, one which this Article refers to as Platform Patent Adjudication. Amazon’s Patent Evaluation Express (“APEX”) now allows patent owners and sellers to resolve infringement disputes without using courts, and even without traditional alternative dispute resolution mechanisms like arbitration or mediation, but instead entirely within the platform setting. Amazon touts, and many practitioners agree, that its procedure is much less expensive and much quicker than litigating in court. But why is Amazon doing this? And why have other platforms not done this before? This Article takes a step back to examine the conditions and …

Foreign Intelligence Surveillance Act Section 702: The Good, The Bad, And A Proposal To Make It Less Ugly, Kevin Burns

Fordham Intellectual Property, Media and Entertainment Law Journal

Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) has been controversial since its inception. Created to allow intelligence collection against targeted foreign persons, electronic surveillance under Section 702 casts a wide net, often capturing communications sent to or by United States persons. Opponents point to the invasion of privacy such collection presents, and to the well-documented abuse and biased use of Section 702 data against U.S. citizens. This Note argues that despite this, Section 702 is a vital tool in the fight against terrorism and drug trafficking and the case against Section 702 is weaker than it appears. This …

Is Garcetti Too Cool For School?: Why Garcetti V. Ceballos Should Not Apply To School Teachers, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment is implicated by students and teachers every day in public schools. For years, courts followed the test established in Pickering v. Board of Education to analyze free speech claims for public school teachers. However, teachers’ protections were changed in 2006 when the U.S. Supreme Court decided Garcetti v. Ceballos. Since then, the circuits have inconsistently applied this test in cases relating to education. With the circuit split and high-profile cases rising in the federal circuits, the Supreme Court may have an opportunity to resolve the issue.

This Note advocates for the Supreme Court to rule that Garcetti …

From Drawstring To Drawback: A Proposal For The Donation Alternative Program To Promote Environmental Responsibility In Fashion Act, Elliot O. Jackson

Fordham Intellectual Property, Media and Entertainment Law Journal

Given the modern interest in resold, repurposed, upcycled, and thrifted goods, the fashion industry was forced to welcome new players into its global market. In turn, these players offer new meaning to the phrase: “one man’s trash is another man’s treasure,” especially in light of post-pandemic consumer relations. Pairing creativity and innovation with existing techniques has allowed many designers, ateliers, and skilled professionals across the world to transform old or mundane goods into vibrant apparel. A worthy example of this practice is Dapper Dan’s transformation of garment bags from a high-fashion brand into upcycled or repurposed, one-of-a-kind products. The origin …

In The Thick(Et) Of It: Addressing Biologic Patent Thickets Using The Sham Exception To Noerr-Pennington, Anna Zhou

Fordham Intellectual Property, Media and Entertainment Law Journal

A biologic patent thicket occurs when a pharmaceutical company acquires a “dense web” of patents and other intellectual property rights regarding a specific product. While applying for multiple patents is permissible, the resulting protections can have antitrust implications. In an industry like biologics, where companies can acquire patent exclusivity and regulatory exclusivity over their products, the process of continuously accumulating these exclusivities seems to be an attempt to keep biosimilars at bay. Keeping competitors out of the market drives up prices and raises questions about how these regulatory and patent pathways are being used.

Recent class action litigation in the …

Global Digital Governance Through The Back Door Of Corporate Regulation, Orit Fischman-Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, societal life is increasingly conducted in the digital sphere, in which two core attributes are prominent: this sphere is entirely controlled by enormous technology companies, and these companies are increasingly deploying artificial intelligence (AI) technologies. This reality generates a severe threat to democratic principles and human rights. Therefore, regulating the conduct of the companies ruling the digital sphere is an urgent agenda item worldwide. Policymakers and legislatures around the world are taking their first steps in establishing a digital governance regime, with leading proposals in the EU. Although it is understood that it is necessary to adopt a comprehensive …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support “Evergreening” Allegations, Erika Lietzan, Kristina Acri Née Lybecker

Fordham Intellectual Property, Media and Entertainment Law Journal

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms—including to antitrust law and drug regulatory law—to address this purported problem. This Article evaluates empirical data offered to substantiate “evergreening” and explains that these data—though mostly accurate—do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the initial patent(s) and exclusivity on the drug would …

Protecting Producers’ Copyrights: A Proposal For Group Registration Of Non-Sample-Based Musical Beats, Matthew Roomberg

Fordham Intellectual Property, Media and Entertainment Law Journal

“Beats” are the instrumental tracks that form the foundation of hip-hop, pop, and EDM songs. The authors who create them, often called producers or beatmakers, make hundreds or thousands of new distinct beats each year to raise their chance of attaining commercial success. But wholesale pirating of original beats has become rampant, and authors face significant obstacles in the search for remedies. One such obstacle is the great difficulty and expense of registering the copyrights associated with hundreds or thousands of original beats.

Registration with the U.S. Copyright Office is a critical step to obtaining most of the remedies available …

Should Using An Ai Text Generator To Produce Academic Writing Be Plagiarism?, Brian L. Frye, Chat Gpt

Fordham Intellectual Property, Media and Entertainment Law Journal

Author's Foreword: I “wrote” this article while taking a bath with a bottle of champagne, by submitting the questions in bold to ChatGPT and copying its responses. I did not bother providing citations for ChatGPT’s claims, because they would obviously be superfluous.

Editor-in-Chief's Foreword: In 2023, the question is unavoidable: when it comes to scholarship, and in our case, legal scholarship, what do we do about artificial intelligence (AI) like ChatGPT? Do we need to do anything? In the Comment that follows, author Brian L. Frye and ChatGPT tried to provide an answer to these questions. Actually, ChatGPT did most …

Are Chatgpt And Other Similar Systems The Modern Lernaean Hydras Of Ai?, Dimitrios Ioannidis, Esq., Dr. Jeremy Kepner, Dr. Andrew Bowne, Lt. Col., Usaf, Harriet S. Bryant

Fordham Intellectual Property, Media and Entertainment Law Journal

The rise of Generative Artificial Intelligence systems (“AI systems”) has created unprecedented social engagement. AI code generation systems provide responses (output) to questions or requests by accessing the vast library of open-source code created by developers over the past few decades. However, they do so by allegedly stealing the open-source code stored in virtual libraries, known as repositories. This Article focuses on how this happens and whether there is a solution that protects innovation and avoids years of litigation. We also touch upon the array of issues raised by the relationship between AI and copyright. Looking ahead, we propose the …

Income Tax (Treasury) Unhappy: Efficacy Of Media Campaigns And Tax Noncompliance, Limor Riza

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article systematically evaluates the effectiveness of governmental media campaigns and considers whether we should invest in educating society via such campaigns to increase tax compliance, primarily in light of the intrinsic flaw of taxation.

Is a radio spot that starts with the sound of scary footsteps approaching you, followed by an announcer who says in a deep and intimidating voice, “we’re closing in on undeclared income,” effective? To answer those questions, this Article proposes and showcases a four-step analysis—the ARMS scheme (Aim, Reason, Media-Methods, Sorting). First, the government’s aim of increased tax compliance is identified and declared (Step I: …

Silly Gene Patent Is Not My Lover: A Retrospective Analysis Of Myriad, Stephanie Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

The U.S. Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc. established that an isolated fragment of a gene—the basic unit of heredity—is not patent-eligible subject matter while simultaneously holding that complementary DNA (cDNA) of a gene is patent-eligible subject matter. The decision has been controversial and criticized for including two holdings that are internally inconsistent from both scientific and patent law perspectives. But are the short- and long-term criticisms overstated? A decade after Myriad, the various impacts of the case remain relevant, particularly to the biotechnology and genetic testing fields.

First, this Note examines whether Myriad …

Policy Implications Of User-Generated Data Network Effects, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

User-generated data (UGD) network effects are an exciting and novel economic force. They upset conventional market competition dynamics, and they lead to the formation of dominant data platforms with market power that spans different and seemingly unrelated markets. This article explains that UGD network effects are a blessing and a curse. They provide dominant data platforms with the opportunity to generate welfare-enhancing efficiencies as well as welfare-reducing anticompetitive harms. After exploring the economic opportunities and social threats, this article explores the implications of UGD network effects on competition policy. Drawing on traditional network effects theory, this article proposes and critically …

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M.L. Acri, Evan Weidner

Fordham Intellectual Property, Media and Entertainment Law Journal

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term “restoration”) ask for one. In contrast, most drug companies entitled to this same patent extension ask for one. In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

Ukraine On My Mind: Cultural Heritage And The Current Armed Conflict, Irina Tarsis

Fordham Intellectual Property, Media and Entertainment Law Journal

The following keynote address was delivered on October 7, 2022, during the Fordham Law Intellectual Property, Media & Entertainment Law Journal Symposium, “Duplicate, Decolonize, Destroy: Current Topics in Art & Cultural Heritage.” It was prefaced by a YouTube video of “Ukrainian Folk Song ARMY REMIX | Andriy Khlyvnyuk x The Kiffness.” The upbeat remix of a folk song was performed as a collaboration between South African musical talent David Scott, known as the Kiffniss, and Andriy Khlyvnyuk, the lead singer of the Ukrainian band, Boombox (Бумбокс), who took leave from his concert tours to join the military forces of Ukraine …

Trademark Counterfeiting Enforcement Beyond Borders: The Complexities Of Enforcing Trademark Rights Extraterritorially In A Global Marketplace With Territorial-Based Enforcement, Kari Kammel, Matthew Azim-Kramer, Daniel Duquet, Lillie Patterson

Fordham Intellectual Property, Media and Entertainment Law Journal

We focus on the enforcement of trademark rights, particularly those used against counterfeiters, or those who use unauthorized trademarks of another. We examine the concept of extraterritorial enforcement of trademark rights—the extending of enforcement across national borders—and reviewing how different countries and jurisdictions view this concept or even allow it.

The By-Design Approach Revisited: Lessons From Covid-19 Contact Tracing Apps, Mickey Zar, Niva Elkin-Koren

Fordham Intellectual Property, Media and Entertainment Law Journal

This paper challenges the by-design regulatory approach by exploring the case study of Contact Tracing Apps. It aims to account for the gap between the hopes that were pinned on digital technologies and the rock of reality into which they have crashed. This gap, we argue, results from overestimating the regulatory power of technology and underestimating the co-influence of various regulatory pillars. To address this gap, it is necessary to adopt an ecosystem perspective on sociotechnical systems, where technological design is but one form of regulation. This perspective allows technological design to acquire a social meaning through interaction with other …

The Fashion Workers Act: Closing The Regulatory Loophole In The New York Fashion Industry, Kayleigh Ristuben

Fordham Intellectual Property, Media and Entertainment Law Journal

The fashion industry in New York has largely been unregulated due to a loophole in current law. This has allowed fashion models to face difficulties that would otherwise be addressed by laws regulating other occupations within the entertainment industry. The New York state senate has introduced the Fashion Workers Act which is aimed at addressing these issues and closing the regulatory loophole. This Note analyzes the existing regulatory framework in both New York and California to compare them with the proposed bill. It then uses legislative history from past regulatory attempts to anticipate and address potential industry pushback while offering …

User-Generated Data Network Effects And Market Competition Dynamics, Uri Y. Hacohen

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article defines User-Generated Data (“UGD”) network effects, distinguishes them from the more familiar concept of traditional network effects, and explores their implications for market competition dynamics. It explains that UGD network effects produce various efficiencies for digital service providers (“data platforms”) by empowering their services’ optimization, personalization, and continuous diversification. In light of these efficiencies, competition dynamics in UGD-driven markets tend to be unstable and lead to the formation of dominant multi-industry conglomerates. These processes will enhance social welfare because they are natural and efficient. Conversely, countervailing UGD network effects also empower data platforms to detect and neutralize competitive …

Ip Interrupted: Diverse Voices In Intellectual Property, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Culture And Fair Use, Michael P. Goodyear

Fordham Intellectual Property, Media and Entertainment Law Journal

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.

Cultural adaptations—the transformation of preexisting works to reflect the cultural and social mores and norms of a different group—would appear at first glance to be prohibited as derivative works, which, under the Copyright …

The Ship Of Theseus: The Lanham Act, Chanel And The Secondhand Luxury Goods Market, Julie Tamerler

Fordham Intellectual Property, Media and Entertainment Law Journal

The ship wherein Theseus and the youth of Athens returned had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phale- reus, for they took away the old planks as they de- cayed, putting in new and stronger timber in their place, insomuch that this ship became a standing ex- ample among the philosophers, for the logical ques- tion of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same. – Plutarch1