Law Commons^™

"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg

Faculty Scholarship

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" …

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value – individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality – have long obtained special protection under the common law. Despite the seller’s own actions being tainted, these purchasers obtain valid title and are free to transfer the property without restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly, and in good faith, purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property without running afoul of copyright’s distribution right. …

The Folklore And Symbolism Of Authorship In American Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Despite its formal commitment to “authorship,” American copyright law pays surprisingly little doctrinal attention to understanding the concept. Originality, taken to be modern copyright law’s proxy for authorship, has come to assume a life of its own, with little regard to the system’s supposed ideals of authorship. What role then does authorship play in modern American copyright law? This Article argues that authorship is best understood as a form of folklore and symbolism in copyright law. Drawing on the anthropological strand of Legal Realism advanced and developed by Thurman Arnold, the Article argues that authorship serves an important symbolic purpose …

Preliminary Comments On Restatement Of Copyright, Draft 2, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

Thank you for the opportunity to comment on Preliminary Draft 2 of the Restatement of Copyright. These are preliminary comments, given the short time frame provided to review the draft, and we anticipate sending further comments after we’ve had the opportunity to study the draft further, or as a follow-up to the Advisers’ meeting and the Consultative Group meeting on November 10 and 11, 2016, respectively.

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg

Faculty Scholarship

This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …

The Most Moral Of Rights: The Right To Be Recognized As The Author Of One's Work, Jane C. Ginsburg

Faculty Scholarship

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included a general right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever the conception of the philosophical or policy basis for copyright. The basic fairness of giving credit where it is due advances both the author-regarding and the public regarding aspects of copyright.

Most national copyright laws guarantee the right of attribution (or “paternity”); the leading international copyright …

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

Faculty Scholarship

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying – the question whether the defendant did in fact copy – and improper appropriation – the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach …

United States Response To Questionnaire Concerning Remuneration For The Use Of Works: Exclusivity V. Other Approaches, Bart M.J. Szewczyk, June M. Besek

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Is Music The Next Ebooks? An Antitrust Analysis Of Apple's Conduct In The Music Industry, Alexa Klebanow, Tim Wu

Faculty Scholarship

Over the last twenty years, two waves of technological change have transformed the way people purchase and listen to music. First, digital downloads displaced physical sales of albums. More recently, digital downloads, once the primary way to gain access to digital music, have come to be challenged by streaming services. Apple, a leader in the digital download market with iTunes, has engaged in various strategies to meet the challenge. This Note specifically focuses on two types of conduct: Apple’s pressure on labels to enter into exclusive license agreements, also known as windowing, and Apple’s pressure on the market to abandon …

Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg

Faculty Scholarship

Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses …

Posession As A Natural Right, Thomas W. Merrill

Faculty Scholarship

What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had …

Robots, Pirates, And The Rise Of The Automated Takedown Regime: Using The Dmca To Fight Piracy And Protect End Users, Zoe Carpou

Kernochan Center for Law, Media, and the Arts

This very second, a battle between robots and pirates is being waged online. Pirates are stealing content from copyright holders and uploading it to various websites. Robots are crawling the Web, searching for pirated content. When a robot encounters pirated content, it is programmed to attack — either by reporting back to the copyright holder, or by going straight to the source and requesting that the material be removed. Sometimes the pirates fight back, re-posting the content online soon after it is taken down or posting newly infringing content. The cycle continues, and the battle rages on.

Generally speaking, “robots” …

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, "We …

Equity's Unstated Domain: The Role Of Equity In Shaping Copyright Law, Shyamkrishna Balganesh, Gideon Parchomovsky

Faculty Scholarship

As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth century. At a purely conceptual level, some trace the term back to Aristotle’s notion of epieikeia, or the process of infusing the law with sufficient flexibility to avoid injustice. Lastly, at a largely practical level, a few treat equity as synonymous with a set of remedies that courts can authorize, all of which …

A Pre-History Of Performing Rights In Anglo-American Copyright Law, Derek Miller

Studio for Law and Culture

Statutes creating performing rights--the subset of copyright that secures the right to perform a work – first appeared in the United Kingdom in 1833, and in the United States in 1856. As I explore in the larger project of which this paper forms a part, during the decades that followed these laws’ passage, jurists and theater-makers defined performance as a marketable commodity, what I call the performance-commodity. They did so by negotiating between performance’s aesthetic value and its economic value. This commodity-centered approach was absent from most copyright lawsuits about performance before 1833 and 1856 because jurists and litigants did …

Fragmented Literal Similarity In The Ninth Circuit: Dealing With Fragmented Takings Of Jazz And Experimental Music, Michael Zaken

Kernochan Center for Law, Media, and the Arts

Newcomers to jazz often ask: Is it true that jazz is all improvised? Somehow the casual and romantic notion that jazz is generated in an entirely spontaneous manner has become deeply rooted in our society.

The notator of any jazz solo, or blues, has no chance of capturing what in effect are the most important elements of the music.... A printed musical example of an Armstrong solo, or of a Thelonious Monk solo, tells us almost nothing except the futility of formal musicology when dealing with jazz.

The difficulty of applying standard infringement measures to musical compositions in a way …

Constitutional Hazard:The California Resale Royalty Act And The Futility Of State-Level Implementation Of Droit De Suite Legislation, Nithin Kumar

Kernochan Center for Law, Media, and the Arts

Répétition d’un Ballet, the famous painting by French artist Edgar Degas, sold for $401,000 in 1965. The jubilant seller bragged that Degas originally asked a mere $100 for the painting. In his early career, celebrated American artist Norman Rockwell sold original works like Homecoming Marine and Breaking Home Ties for a few hundred dollars each. In the last decade, these paintings were resold for $9.2 million and $15.4 million at Sotheby’s auctions, but the Rockwell estate received nothing in these transactions. Over the centuries, great wealth in the arts has rarely translated into great wealth for the artist. Since …

We Need To Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage And A Principled Reading Of The "Transmit" Clause, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.’s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo’s activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders. However, Aereo’s …

Asking The Right Questions In Copyright Cases: Lessons From Aereo And Its International Brethren, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of sense when viewed …

Judging Similarity, Shyamkrishna Balganesh, Irina D. Manta, Tess Wilkinson-Ryan

Faculty Scholarship

Copyright law’s requirement of substantial similarity requires a court to satisfy itself that a defendant’s copying, even when shown to exist as a factual matter, is quantitatively and qualitatively enough to render it actionable as infringement. By the time a jury reaches the question of substantial similarity, however, the court has usually heard and analyzed a good deal of evidence about: the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s …

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part Ii (Fair Use), Jane C. Ginsburg

Faculty Scholarship

This survey of recent U.S. fair use decisions examines the domestic evolution of the doctrine, particularly in light of the significant expansion of noninfringing “transformative” uses. The article also considers the U.S.’ compliance with its international obligations under the Berne Convention and the TRIPs Accord, and inquires whether the substantial enlargement of the application of the U.S. fair use exception exceeds the leeway that the Berne Convention, art. 9(2), WCT art. 10, and TRIPs art. 13 grant to member states to provide for exceptions and limitations to copyright.

Fair Use For Free, Or Permitted-But-Paid?, Jane C. Ginsburg

Faculty Scholarship

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore "free" in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair …

Property And The Right To Exclude Ii, Thomas W. Merrill

Faculty Scholarship

In 1998 I published a short essay entitled Property and the Right to Exclude. It appeared in an issue of the Nebraska Law Review honoring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the "sine qua non" of property, a statement that appears in the opening paragraph. The typical citing author takes this to mean that …

The Idiosyncrasy Of Patent Examiners: Effects Of Experience And Attrition, Ronald J. Mann

Faculty Scholarship

In recent years, problems with the U.S. patent system have garnered attention from scholars and policymakers of all types. Concerns about the competitiveness of U.S. industry undergird worries that the Great Recession will linger as long as the 1990s downturn in Japan. It is no coincidence that a Congress that has remained at loggerheads on most aspects of economic policy could reach a consensus on the enactment of the Leahy-Smith America Invents Act of 2011, by far the most important statutory reform of U.S. patent law since 1995. Yet, despite Congress's long overdue attention to patent law, it is unlikely …

Concurrent Damages, Bert I. Huang

Faculty Scholarship

Imagine that a hacker is working for a university official secretly spying on faculty members – say, to find out who has been leaking information to the press about internal disciplinary matters. The injuries to a given victim of the hacking might follow a classic learning curve: The first few intrusions into her e-mail account reveal a storehouse of personal secrets, but further break-ins yield less and less new information. One might say there is diminishing marginal harm.

There is no such leveling off, however, in the compensation that would be awarded to that victim. The electronic privacy law …

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …

United States Response To Questionnaire Concerning Moral Rights In The 21st Century, June M. Besek, Brad A. Greenberg

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Taming The "Frankenstein Monster": Copyright Claim Compatibility With The Class Action Mechanism, Renee G. Stern

Kernochan Center for Law, Media, and the Arts

In a 2013 opinion denying class certification to a putative class of copyright holders in Football Association Premier League Ltd. v. YouTube, Inc., Judge Stanton of the Southern District of New York wrote:

Generally speaking, copyright claims are poor candidates for class-action treatment. They have superficial similarities .... Thus, accumulation of all the copyright claims, and claimants, into one action will not simplify or unify the process of their resolution, but multiply its difficulties over the normal one-by-one adjudications of copyright cases.

Judge Stanton went on to characterize the case as a “Frankenstein monster posing as a class action” …

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, …