Law Commons^™

Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley

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Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the …

What Is The Territorial Scope Of The Lanham Act?, Marketa Trimble

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Since Steele v. Bulova Watch Co., 344 U.S. 280 (1952), the Supreme Court has not addressed the territorial scope of the Lanham Act. Abitron Austria GmbH v. Hetronic International, Inc. is an opportunity for the Court to clarify how its RJR Nabisco extraterritoriality framework applies to the Lanham Act, whether and how current circuit court tests fit into the framework, and whether any of the tests should apply in the second step of the framework.

Of Marks And Markets: An Empirical Study Of Trademark Litigation, Jessica M. Kiser, Sean P. Wright, Benjamin P. Edwards

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Trademarks are increasingly valuable assets, and some companies aggressively enforce and protect these assets. Such aggressive tactics can harm small businesses and chill creativity and speech, but trademark owners are routinely told that the law requires them to stop all similar third-party trademark usage or risk abandonment of their rights. While prior scholarship has discussed how the risk of trademark abandonment is quite low, incentives built into trademark law still push companies to court. This Article presents the results of an event study utilizing an established database of trademark infringement cases to provide insight to decisionmakers on whether the stock …

Unjustly Vilified Trips-Plus?: Intellectual Property Law In Free Trade Agreements, Marketa Trimble

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Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley

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This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, …

Joint Authorship And Dramatic Works: A Critical History, Mary Lafrance

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This Article examines the evolution of copyright law pertaining to collaborative authorship and finds that much of the core legal doctrine in this area arose from disputes involving dramatic works. This fresh look at theatrical collaborations reveals a rich history that calls into question the modem judicial presumption that dramatic writing is the product of individual genius. Examining the history of Anglo- American law's response to collaboration in dramatic works offers valuable insight into the development of multiple concepts related to authorship-in particular, the rules governing derivative works, works made for hire, and joint works. It also demonstrates that the …

Apportioning Authorship, Mary Lafrance

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Part II of this Article introduces the restrictive joint authorship tests created by federal courts, and the courts' reliance on the equal ownership principle as a justification for those tests. Part III examines the relevant case law and other authorities addressing the rights of tenants in common under both copyright law and the general law of property, and concludes that, contrary to the views expressed by many courts and commentators, historical precedent and legislative history strongly favor an interpretation of the copyright statutes that apportions joint authorship shares according to the collaborators' respective contributions. Part IV examines the decision of …

The Public Policy Exception And International Intellectual Property Law, Marketa Trimble

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No abstract provided.

Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald

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The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble

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This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …

Smart Cars, Telematics, And Repair, Leah Chan Grinvald, Ofer Tur-Sinai

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Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …

Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald

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The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one’s trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on …

A Quarter Century Of International Copyright On Software, Marketa Trimble

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No abstract provided.

U.S. Supreme Court I.P. Cases, 1810-2019: Measuring & Mapping The Citation Networks, Joseph S. Miller

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Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

Public Art, Public Space, And The Panorama Right, Mary Lafrance

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When art is installed in public spaces in the United States, the public's right to capture and share images for commercial or noncommercial purposes is not clearly defined by federal copyright law. This has led to both actual and threatened litigation. In the absence of a specific copyright rule designed to address these disputes, they must be resolved under a patchwork of other doctrines that are uncertain in scope, including fair use, de minimis use, and the statutory exception for images of architectural works, but none of these provide predictable results. In contrast, many foreign jurisdictions have enacted 'freedom of …

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

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Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …

Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley

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This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.

The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …

The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims And Remedies, Marketa Trimble

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When in Equustek v. Google a Canadian court ordered that Google de-list the pages of a defendant that infringed intellectual property (“IP”) rights under Canadian law, some commentators were surprised not only by the Canadian court’s assertion of personal jurisdiction over Google (a U.S. third party who was not a party to the original Canadian IP rights infringement litigation), but also by the court’s issuance of a remedy with global effects. However, global and other extraterritorial remedies are not unknown in IP rights infringement cases: U.S. courts have granted extraterritorial remedies in a number of such cases. This Article reviews …

Copyright And Geoblocking: The Consequences Of Eliminating Geoblocking, Marketa Trimble

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Geoblocking has become a common companion of copyrighted content on the internet; even streaming services can make streamed copyrighted content available or unavailable according to the location of their users. There are various reasons for geographical restrictions on access to content; copyright issues are not the only reasons, but territorial limitations associated with copyright are significant – and sometimes the primary – reasons for implementing geoblocking. This article reviews the current relationship between copyright and geoblocking, particularly the role attributed to geoblocking in copyright law and law of personal jurisdiction in the United States and the European Union; it considers …

Enforcement Of Intellectual Property Rights At Trade Shows: A Review And Recommendations, Marketa Trimble

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Trade shows (also referred to as trade fairs or exhibitions) are venues for the exchange of information about the newest intellectual property ("IP") and can also be venues where disputes over IP rights arise or escalate. When trade shows become arenas for such disputes, IP right owners seek means to stop infringements of their IP rights on site-at the trade show and with immediate effect. This article reviews from a comparative perspective the options that IP right owners have for immediate relief at trade shows. After considering the limitations that current law imposes on temporary restraining orders in the United …

Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai

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This Article posits that intellectual property law should accommodate consumers’ right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right …

Patent Law And The Emigration Of Innovation, Greg Day, Steven Udick

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Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.

To resolve this puzzle, we offer a novel theory of patent rights — which …

Patent Inequality, Greg Day, W. Michael Schuster

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Using an original dataset of over 1,000,000 patents and empirical methods, we find that the patent system perpetuates inequalities between powerful and upstart firms. When faced with growing numbers of patents in a field, upstart inventors reduce research and development expenditures, while those already holding many patents increase their innovation efforts. This phenomenon affords entrenched firms disproportionate opportunities to innovate as well as utilize the resulting patents to create barriers to entry (e.g., licensing costs or potential litigation).

A hallmark of this type of behavior is securing large patent holdings to create competitive advantages associated with the size of the …

Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley

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This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this …

Law's Semantic Self-Portrait: Discerning Doctrine With Co-Citation Networks And Keywords, Joseph S. Miller

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An apex court’s body of cases has an internal texture, continually augmented by recent citations to earlier, topically related cases. How can we best describe that texture? The citation network shows a path. Specifically, what past Supreme Court cases do more recent Supreme Court cases tend to cite together, as if a topical pair? Using a web of those oft-cited pairs, what noun phrases appear in a given cluster of cases more often, relative to the rate at which those phrases appear in writings more generally? To answer these questions is to map, in detail, a body of decisional law. …

Choice Of Law And The Right Of Publicity: Rethinking The Domicile Rule, Mary Lafrance

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Determining the best choice of law principle for right of publicity claims, and persuading courts to adopt this principle, will enhance predictability for potential plaintiffs and defendants in the foreseeable future. To begin this process, this article by Professor Mary LaFrance takes a critical look at the widespread practice of applying the law of the celebrity's domicile to determine the existence of an enforceable right of publicity.

This article suggests that there are strong policy arguments against the domicile rule, and that courts adhering to the rule are confusing disputes over property ownership with disputes over liability for tortious injury …

Territorialization Of The Internet Domain Name System, Marketa Trimble

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A territorialization of the internet – the linking of the internet to physical geography – is a growing trend. Internet users have become accustomed to the conveniences of localized advertising, have enjoyed location-based services, and have witnessed an increasing use of geolocation and geoblocking tools by service and content providers who – for various reasons – either allow or block access to internet content based on users’ physical locations. This article analyzes whether, and if so how, the territorialization trend has affected the internet Domain Name System (“DNS”). As a hallmark of cyberspace governance that aimed to be detached from …

Intellectual Property Channeling For Digital Works, Lucas S. Osborn

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Market economies are based on free competition, which can include copying. Yet intellectual property protection in the United States prohibits copying in certain circumstances to incentivize innovation and creativity. New breeds of digital works are challenging our historical application of intellectual property law. These include certain categories of software programs as well as digital manufacturing files. These new works look deceptively like works from a previous era and thus, courts might languorously treat them as they have older works. This would be a mistake. This Article analyzes these works in terms of existing intellectual property doctrine and constructs a normative …

All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley

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In March 2017 the United States Supreme Court held in Star Athletica L.L.C. v. Varsity Brands Inc. that an artistic feature incorporated into the design of a useful article could be protected by copyright when that feature could be perceived as a two- or three-dimensional work of art separate from the useful article, and imagined separately as a protectable pictorial, graphic, or sculptural work. This two-part test replaces a variety of tests which courts and commentators proposed and applied during the last 40 years. The Star Athletica decision is predicted to be a boon to the fashion and apparel industry, …

A Transformative Use Taxonomy: Making Sense Of The Transformative Use Standard, David E. Shipley

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The transformative use standard, which is an important aspect of copyright law’s fair use doctrine, has been confusing and uncertain since 1994 when it was first introduced by the United States Supreme Court in Campbell v. Acuff-Rose Music. To try to make some sense of this standard, this article extends the work of several scholars who have argued that the massive amount of fair use case law generally divides itself into categories, patterns or policy clusters which have their own internal coherence. This article contends that these observations apply as well to transformative use decisions more particularly, which similarly fit …