Law Commons^™

Are Cryptopunks Copyrightable?, Brian L. Frye

Law Faculty Scholarly Articles

Larva Labs’s CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars.

The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …

After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye

Law Faculty Scholarly Articles

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.

Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped …

Literary Landlords In Plaguetime, Brian L. Frye

Law Faculty Scholarly Articles

The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …

Conceptual Copyright, Brian L. Frye

Law Faculty Scholarly Articles

Conceptual art is art that consists of ideas, not their realization. It tests the

boundaries of art, by eliminating the art object entirely. Legal scholars should be

interested in conceptual art because it can help them test the boundaries of legal

doctrines and their justifications. I created a work of conceptual art that reflects

on both the securities laws and copyright doctrine. Among other things, I asked

the SEC and the Copyright Office to opine on that work, with limited success. I

use my experience to reflect on how conceptual art can illuminate our

understanding of the law.

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

A License To Plagiarize, Brian L. Frye

Law Faculty Scholarly Articles

Since time immemorial, authors have wanted to own various kinds of

exclusive rights in the works they create. Curiously, the rights authors want

to own at any particular point in time tend to reflect the nature of the market

for the works they create. The first exclusive right authors wanted was attribution.

In classical Greece, philosophers accused each other of copying

ideas without attribution. The Roman poet Martial coined the term plagiarius

to criticize other poets for passing off his poems as their own. Even

medieval Irish poets observed plagiarism norms that prohibited copying

without attribution. In all of these …

The Right Of Reattribution, Brian L. Frye

Law Faculty Scholarly Articles

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …

In Re: Patentability Of The Peltzer Inventions, Brian L. Frye

Law Faculty Scholarly Articles

The motion picture Gremlins (1984) stars Hoyt Wayne Axton (1938-1999) as Randall Peltzer, a prolific inventor with persistent cash-flow problems. Among other things, the motion picture discloses many of Peltzer's inventions, including the "Bathroom Buddy," the "Peltzer Smokeless Ashtray," and the "Peltzer Pet." This essay takes the form of an opinion letter evaluating the patentability ofPeltzer's inventions.

Plagiarize This Paper, Brian L. Frye

Law Faculty Scholarly Articles

It is meet and just that I write this essay while toiling in the salt mines of academia. We academics devote our works and days to scouring those mines for ideas in the rough. Some of us discover a rich vein, but others must comb through the tailings. Whatever we find, we cut and polish until it glistens and shines. Of course, some ideas prove to be diamonds while others remain mere pebbles. But then a diamond is just a pebble that many people admire, and one person’s diamond is another’s pebble. Regardless, academics strive to find the scholarly diamond …

Patents & Legal Expenditures, Christopher J. Ryan, Brian L. Frye

Law Faculty Scholarly Articles

Universities are engines of innovation. To encourage further innovation, the federal government and charitable foundations give universities grants in order to enable university researchers to produce the inventions and discoveries that will continue to fuel our knowledge economy. Among other things, the Bayh-Dole Act of 1980 was supposed to encourage additional innovation by enabling universities to patent inventions and discoveries produced using federal funds and to license those patents to private companies, rather than turning their patent rights over to the government. The Bayh-Dole Act unquestionably encouraged universities to patent inventions and license their patents. Since the passage of the …

Legal Realism: Unfinished Business, Ramsi A. Woodcock

Law Faculty Scholarly Articles

No abstract provided.

Metaphors On Trademark: A Response To Adam Mossoff, “Trademark As A Property Right”, Brian L. Frye

Law Faculty Scholarly Articles

No abstract provided.

Christmas In July: A Response To David Fagundes, Why Less Property Is More, Brian L. Frye

Law Faculty Scholarly Articles

A response to David Fagundes, Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being, 103 Iowa L. Rev. 1361 (2018).

"It's Your #!": A Legal History Of The Bacardi Cocktail, Brian L. Frye

Law Faculty Scholarly Articles

The Bacardi cocktail was the Cosmopolitan of the Jazz Age: a sweet and sour tipple with an attractive rosy hue and a deceptively alcoholic punch. Created in about 1913, and named after Bacardi rum, it soon became one of the most popular cocktails in America. Prohibition only increased its popularity, as wealthy Americans vacationing in Cuba enjoyed Bacardi cocktails and demanded them at speakeasies and at home. Of course, every good speakeasy offered white rum (or a passable facsimile thereof) and called it “bacardi” no matter who made it. After Repeal, the popularity of the Bacardi cocktail continued to rise …

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But …

Registration Is Fundamental, Brian L. Frye, Nicole E. Pottinger

Law Faculty Scholarly Articles

Under the Copyright Act, copyright owners can file infringement actions only if registration of their copyright claim with the Copyright Office “has been made” or “has been refused.” The United States Supreme Court recently granted certiorari in Fourth Estate v. Wall-Street.com, in order to decide whether registration is “made” when a claimant files a registration application or when the Copyright Office registers the claim.

This article argues that the Court should hold that registration occurs when the Copyright Office registers the claim, in order to ensure that federal courts can benefit from the expertise of the Copyright Office. The Copyright …

An Empirical Study Of University Patent Activity, Brian L. Frye, Christopher J. Ryan

Law Faculty Scholarly Articles

Since 1980, a series of legislative acts and judicial decisions have affected the ownership, scope, and duration of patents. These changes have coincided with historic increases in patent activity among academic institutions.

This article presents an empirical study of how changes to patent policy precipitated responses by academic institutions, using spline regression functions to model their patent activity. We find that academic institutions typically reduced patent activity immediately before changes to the patent system, and increased patent activity immediately afterward. This is especially true among research universities. In other words, academic institutions responded to patent incentives in a strategic manner, …

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held …

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright …

Incidental Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

As Mark Twain apocryphally observed, “History doesn’t repeat itself, but it often rhymes.” The history of the right of publicity reflects a common intellectual property rhyme. Much like copyright, the right of publicity is an incidental intellectual property right that emerged out of regulation. Over time, the property right gradually detached itself from the regulation and evolved into an independent legal doctrine.

Copyright emerged from the efforts of the Stationers’ Company to preserve its members’ monopoly on the publication of works of authorship. Similarly, it can be argued the right of publicity emerged from the efforts of bubblegum companies to …

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

"Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

Against Creativity, Brian L. Frye

Law Faculty Scholarly Articles

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement.

The creativity requirement should be abandoned because it is irrelevant to the scope of copyrightable subject matter and distorts copyright doctrine by encouraging inefficient “creativity rhetoric.” The purpose of copyright is to encourage the production of economically valuable works of authorship, not creativity.

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Law Faculty Scholarly Articles

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have …

Scenes From The Copyright Office, Brian L. Frye

Law Faculty Scholarly Articles

This essay uses a series of vignettes drawn from Billy Joel’s career to describe his encounters with copyright law. It begins by examining the ownership of the copyright in Joel’s songs. It continues by considering the authorship of Joel’s songs, and it concludes by evaluating certain infringement actions filed against Joel. This Essay observes that Joel’s encounters with copyright law were confusing and frustrating, but also quite typical. The banality of his experiences captures the uncertainty and incoherence of copyright doctrine.

Plagiarism Is Not A Crime, Brian L. Frye

Law Faculty Scholarly Articles

Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.

Copyright In Pantomime, Brian L. Frye

Law Faculty Scholarly Articles

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '“pantomimes” was forgotten. This Article argues that …

Eldred & The New Rationality, Brian L. Frye

Law Faculty Scholarly Articles

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by …

Ip As Metaphor, Brian L. Frye

Law Faculty Scholarly Articles

Everybody hates intellectual property trolls. They are parasites, who abuse intellectual property by forcing innovators to pay an unjust toll. Even worse are intellectual property pirates. They are thieves, who steal intellectual property by using it without the consent of its owner. By contrast, everybody loves innovators. They are farmers, entitled to reap what they have sown and enjoy the fruits of their labor.

But trolls, pirates, and farmers are metaphors. A "troll" abuses intellectual property only if its ownership or use of that intellectual property is unjustified, a "pirate" steals intellectual property only if the ownership of that intellectual …

Copyright As Charity, Brian L. Frye

Law Faculty Scholarly Articles

Copyright and charity law are generally considered distinct and unrelated bodies of law. But they are actually quite similar and complement each other. Both copyright and charity law are intended to increase social welfare by solving market and government failures in public goods caused by free riding. Copyright solves market and government failures in works of authorship by providing an indirect subsidy to marginal authors, and charity law solves market and government failures in charitable goods by providing an indirect subsidy to marginal donors. Copyright and charity law complement each other by solving market and government failures in works of …