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Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane C. Ginsburg, Irene Caboli
Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane C. Ginsburg, Irene Caboli
Faculty Scholarship
This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, …
The Demise Of The Copyright Act In The Digital Realm: Re-Engineering Digital Delivery Models To Circumvent Copyright Liability After Aereo, Megan Larkin
Kernochan Center for Law, Media, and the Arts
This Note argues that the Second Circuit’s interpretation of the Transmit Clause eviscerates the meaning of “public” within the digital realm and has created a blueprint for business models to completely circumvent copyright liability. Part I provides the background of the public performance right, focusing on the role that technology has played in the addition of the Transmit Clause and on relevant judicial interpretation. Part II argues that the Second Circuit’s interpretation of the Transmit Clause was improper; it tests the court’s blueprint by re-engineering past business models to show how they could have evaded liability. Part III proposes that, …
Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh
Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh
Faculty Scholarship
For some time now, scholars have come to recognize the existence of numerous structural infirmities deeply embedded within the modern copyright system. Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler’s insightful article documents these tensions and proposes a new way of mediating them. She argues that copyright law is best understood as instantiating a restriction
on unfair competition and, consequently, that it should do little more than protect creators of original works from “competitive harm” in …
Creation And Commercial Value: Copyright Protection Of Works Of Information, Jane C. Ginsburg
Creation And Commercial Value: Copyright Protection Of Works Of Information, Jane C. Ginsburg
Faculty Scholarship
In 1899, Augustine Birrell, a Victorian barrister, lamented: "The question of copyright has, in these latter days, with so many other things, descended into the market-place, and joined the wrangle of contending interests and rival greedinesses." Birrell's remark conveys distaste for those authors who would "realise the commercial value of their wares." But the question of copyright has always been joined with that of commercial value. Indeed, by affording authors limited monopoly protection for their writings, our Constitution relies on wrangling greed to promote the advancement of both creativity and profit. Nonetheless, the distinction Birrell implies between copyrightworthy works of …