Law Commons^™

Letter To Council Members Regarding Council Draft 2, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 2 (CD2) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on October 18-19, 2018. We have had – and continue to have – significant concerns about the project and the work to date. We note that numerous parties have expressed concerns about CD2, including the US Patent and Trademark Office, the American Bar Association’s Section of Intellectual Property Law, academics and other Advisers, and that the US Copyright Office and the New York City Bar Association’s Committee on Copyright and Literary Property have done so …

United States Response To Questionnaire Concerning Copyright In Action: International Perspectives On Remedies, Philippa Loengard, Julia Ambros, Andrew Elliott, Daniel Lee

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.

Foreign Authors' Enforcement Of U.S. Reversion Rights, Jane C. Ginsburg

Faculty Scholarship

Thank you to all of the participants, and especially the first two panelists, for setting one part of the scene. I am going to talk about the United States’ termination right and some Berne and private international law consequences or implications of the termination right.

First, however, I’d like to advert to the two goals Rebecca Giblin referenced in her talk. One is remuneration, the other is dissemination. Author-protective laws in other countries also address dissemination. As Séverine Dusollier mentioned, a number of national laws include an obligation to exploit the work: if the publisher does not exploit the work, …

"Anything Goes": Regulating The Conduct Of Money-Bundling Broadway Co-Producers, David Manella

Kernochan Center for Law, Media, and the Arts

This Note will analyze industry concerns relating to the practice of granting above-the-title producer credit to individuals solely for contributing or bundling a share of a production’s capitalization, specifically by asking whether moneybundling Broadway co-producers are acting as unregistered broker-dealers in violation of applicable Security Exchange Commission (“SEC”) registration requirements. In Section I of this Note, I provide a history of Broadway producing models, so as to understand how today’s dominant model developed. In Section II, I unpack that model by describing the structure of theatrical investment vehicles and identifying the different types of Broadway producers. In Sections III and …

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense …

Standing With A Bundle Of Sticks: The All Substantial Rights Doctrine In Action, Christopher J. Morten

Faculty Scholarship

This Article provides an overview of the Federal Circuit’s all substantial rights doctrine. Surveying decades of case law, this Article seeks to clarify this confusing area of the law and set out the essential rules for those engaged in patent licensing, patent assignment, and patent litigation. This Article begins by explaining why effective ownership of a patent is critical to standing, and then describes the framework through which courts determine whether a party is, in fact, in possession of all substantial rights and is therefore the effective owner. While there are many factors that courts may consider, certain rights take …

Conceptual Separability As Conceivability: A Philosophical Analysis Of The Useful Articles Doctrine, Mala Chatterjee

Faculty Scholarship

In copyright law, the useful articles doctrine plays a significant role in defining the limits of copyright’s domain and the boundary between copyright and patent. But the implicated notion of “conceptual separability” has proved to be difficult to define, and the Supreme Court’s effort to define it in the recent case Star Athletica, L.L.C. v. Varsity Brands, Inc. is unsatisfying. In an effort to resolve this challenge, the present paper puts forth a novel test for conceptual separability, one that draws inspiration from the philosopher’s idea of conceivability. The test is the following question: “When you conceive of the relevant …