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Notre Dame Law School

Intellectual Property Law

Copyright Act

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Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Petitioner, Mark Mckenna, Mark A. Lemley, Christopher Jon Sprigman, Rebecca Tushnett Jan 2016

Brief Of Amici Curiae On Behalf Of Intellectual Property Professors In Support Of Petitioner, Mark Mckenna, Mark A. Lemley, Christopher Jon Sprigman, Rebecca Tushnett

Court Briefs

In its 1976 revision of the Copyright Act, Congress decided to separate applied art from industrial design, admitting the former to copyright and excluding the latter. It drew this distinction precisely because it intended to differentiate copyright from design and utility patent. Congress recognized as applied art only those aesthetic features of a useful article that could be “separated” from that useful article rather than being integrated into the article.

The correct test of separability therefore considers conceptual separability to be nothing more than a coda to physical separability, and asks only whether the claimed design could be removed from ...


Brief Of Amici Curiae Law Professors In Support Of Defendant-Appellee National Football League, Mark Mckenna, Rebecca Tushnet Mar 2015

Brief Of Amici Curiae Law Professors In Support Of Defendant-Appellee National Football League, Mark Mckenna, Rebecca Tushnet

Court Briefs

Based on the undisputed facts, the NFL’s films in this case are noncommercial speech; their profit-seeking and brand-building nature are standard features of noncommercial speech. Truthful, nondefamatory noncommercial speech deserves full First Amendment protection, and there is no justification for allowing Appellants to control speech about them in this case.

Separately, Appellants’ right of publicity claims are preempted by the Copyright Act, which allows owners of copyrighted works to exploit those works by reproduction, distribution, creation of derivative works, and public performance—precisely the conduct at issue here.

Finally, Appellants’ trademark claims are also precluded by the First Amendment ...