Law Commons^™

Contextualizing Michael Jordan V. Qiaodan Sports: I Don’T Believe I Can Fly, Or Do Business, In China, Justin Blair

Journal of Intellectual Property Law

To be a superstar in America means to live with the pressure of maintaining a certain reputation and level of popularity during one’s professional career. Fame in America often translates to fame internationally, and well-known individuals are typically incentivized to use the constantly evolving internet and media at their disposal to increase global exposure with respect to their brands. American celebrities consequently generate social and monetary capital, and while they willingly increase fan access into their personal lives, opportunistic individuals in foreign territories have on occasion successfully invaded the trademarks of these celebrities. This issue traces back to the turn …

Under The Umbrella: Promoting Public Access To The Law, D.R. Jones

Journal of Intellectual Property Law

People need to know the law and have access to the law. Allowing copyright claims in “the law” can lead to severe restrictions on public knowledge and access. This article reviews court decisions spanning three centuries that have upheld the people’s needs over the proprietary rights of copyright holders. The review includes a discussion and analysis of three recent decisions that are under the umbrella of the principle that members of the public need unfettered access to the law. The Supreme Court in Georgia v. Public.Resource.Org reaffirmed and further refined the government edicts doctrine which holds that government edicts are …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit's Copyright Law Jurisprudence, David E. Shipley

Journal of Intellectual Property Law

This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive, and this article discusses this court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; …

Destruction, The Rebirth Of Art: Analyzing The Right Of Integrity’S Role In Modern Art, Connely Doizé

Journal of Intellectual Property Law

Creative destruction uses destruction to create new meaning in a work. This process is best explained as a Phoenix, rising from the ashes of destruction. The term “Art” encompasses infinite meanings and in this Note, I argue that destruction constitutes one of them. Resulting from this connection, I argue that destruction, specifically Creative Destruction, must not be hampered by law. In 1990, Congress promulgated the Visual Artist Rights Act, 17 U.S.C.A. 106A. This legislation formally introduced the moral rights of attribution and integrity into United States legal doctrine. Specifically, the right of integrity grants an artist the right to prevent …

A New Way For Voting In American Elections: Addressing The Patentability Of A Blockchain Mail-In Voting System, Brandon D. Waller

Journal of Intellectual Property Law

The novel corona virus turned life upside down throughout the world in 2020. One of its many impacts was the fear it gave people of going out in public as doing such could increase the likelihood of contraction. This disease happened to come about during an election year in the United States and this raised many questions about how voting could be safely conducted. A hot topic debate took over America as to whether or not mail-in voting would suffice. The United States Postal Service sought to find a reliable way to conduct mail-in voting and filed for a patent …

Poverty Via Monopolization: The Impact That Intellectual Property Rights And Federal Subsidies Have On Farm Poverty, Elizabeth Slater

Journal of Intellectual Property Law

The poverty rate among farmers and those living in rural America is about four percent higher than those who live in metropolitan areas. The majority of these farmers rely on farm subsidies from the federal government to offset low farm profits. The seed price for these farmers has increased astronomically, with corn seed representing fifteen percent of total corn production expenses. Federal law contributes to the high input prices by allowing developers of new seed varieties to monopolize their research findings under the Plant Variety Protection Act and other intellectual property protection. Because of the complexity and expense of developing …

Oof! Nice Try Congress – The Downfalls Case Act And Why We Should Be Looking To Our Cousins Across The Pond For Guidance In Updating Our New Small Claims Intellectual Property Court, Cori Henris

Journal of Intellectual Property Law

The rise in copyright cases in the United States has led Congress to begin thinking about how to make it more accessible for small creators to fight for their rights in court. The current system for copyrights claims to be brought in the Federal system is too time consuming and costly. Leaving many creators with all the rights to protect their creations but no means to do so when they are infringed upon. The proposed CASE Act was supposed to be the solution. It would create a small claims court in the United States and provide for a location for …

Big Tech In A Small Pond: How The Internet Economy Became So Concentrated And What Sector-Specific Regulation Can Do To Reel It In, Andy Wilson

Journal of Intellectual Property Law

While the early days of the internet were marked by a proliferation of new internet platforms offering different services, over time much of the sector became dominated by the handful of internet giants we know today. Discomfort with the outsized role that these enormous companies play in the daily lives of billions has driven a growing consensus that they need to be reined in, culminating in federal and state agencies launching a slew of antitrust suits against Google and Facebook in late 2020. These renewed antitrust efforts will likely be insufficient to address competitive harms in the internet economy, given …

Boss Battle: Twitch Vs Proposed Amendments To The Knowledge Standard Under The Digital Millennium Copyright Act, Zachary Messick

Journal of Intellectual Property Law

Under the Digital Millennium Copyright Act (DMCA), indirect theories of liability such as vicarious liability and contributory infringement have been inconsistently applied, leading the Copyright Office to recommend lowering the knowledge standard and increasing potential liability for Online Service Providers (OSPs). In this note, I will discuss the histories of vicarious liability and contributory infringement, which demonstrate that courts have correctly applied the standards under the DMCA. Further, through a case-study of Twitch, an up-and-coming streaming website, I will discuss how the proposed amendments drive against the policies underlying the indirect theories of liability and would destroy OSPs like Twitch. …

Gimme A Break: The Patent Term Restoration Act Should Give Environmental Innovators A Chance To Catch A (Cleaner) Breath, Gabrielle Gravel

Journal of Intellectual Property Law

There is an abundance of frightening data painting a grim picture of Earth’s future. Humans have undoubtedly left a carbon footprint so deep, it will take drastic measures to undo our damage. To continue enjoying life as we know it, we humans must shift our focus to the powerful minds of creators and engineers to find ways to untangle our manmade webs. To generate interest and attract the best and brightest to do the challenging and time-consuming work of environmental inventions, the first step is to provide a greater incentive. This note calls upon the U.S. Patent and Trademark Office …

Design On Someone Else's Dime: The Profiteering Of Interior Designer's Works From A Lack Of Rights In The Modern Era, Kim Carlson

Journal of Intellectual Property Law

Rooms once viewed as utilitarian in nature- places to work in, sleep in, or cook in- have gone through a dramatic transformation. Now, people view these rooms as an outward reflection of their style. In the last few decades, people’s eagerness to renovate these rooms exploded. As a result, home designer shows soared in popularity, garnering millions of views. Consumers flocked to different media forms and stores in search of the latest paint and furniture trends. The heightened demand, coupled with prevailing social media marketing, forced interior designers to become innovative in creating and advertising their services. While the increased …

Exit Stage, Enter Streaming: Copyright Of The Theatrical Stage Design Elements In A Changing Theater Industry, Mark Bailey

Journal of Intellectual Property Law

Due to the pandemic, the entire theatre industry shut down nearly overnight in March of 2020. Thousands of talented professionals were out of work, costing individuals and the economy billions of dollars in the first month alone. Within a month of this industry wide halt, eighty theatres around the country began providing content to audiences around the country via streaming services. Streaming theatre fully took hold when Hamilton on Disney+ became the most widely watched piece of entertainment nationwide in the month of July. Within a few short months, an industry based completely around large gatherings shifted to a digital …

Trademarking Recreational Marijuana And Potential Threats To The United States' Treaty Obligations, Charles Wells

Journal of Intellectual Property Law

The conflict between state and federal laws regarding the cultivation and sale of recreational marijuana results in inconsistent application of trademark protections between state and federal governments that could cause conflict with the United States’ treaty obligations under the TRIPS agreement. Whereas the federal government categorically denies trademark protections for marijuana-based products state governments protect trademarks belonging to recreational marijuana businesses through state and common law trademark protections. The United States is also obligated to ensure that foreign nationals and United States receive the same treatment regarding trademark protections under The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). …

From Blurred Lines To Blurred Law: An Assessment Of The Possible Implications Of "Williams V. Gaye" In Copyright Law, Hannah Patton

Journal of Intellectual Property Law

In December 2018, panic spread throughout the music industry in light of headlines reporting that the Ninth Circuit Court of Appeals upheld the lower court’s verdict that the 2013 hit song “Blurred Lines” by Robin Thicke and Pharrell Williams infringed Marvin Gaye’s “Got to Give it Up,” released in 1977. In addition to the tremendous $5.3 million award ordered for the Gaye estate, the Blurred Lines Case resulted in fear that the holding could create precedent for allowing the “style” or “groove” of a song to be considered subject to copyright. Since then, industry insiders, lawyers, and commentators have feared …

Repeal The Defend Trade Secret Act: Why Congress Can't Rely On Trade Secret Law To Protect America's Trade Secrets, Steven Miller

Journal of Intellectual Property Law

Trade secret theft from foreign and domestic competitors continue to siphon technological advances from United States businesses. This siphoning erodes America's competitive advantage in the global marketplace; however, this note argues that recent Congressional legislation that attempts to strengthen trade secret protection actually harms America's competitive advantage. This note argues for Congress to repeal its trade secret protection, because trade secret law,a s currently applied, fails to deter trade secret theft and fails to protect American business interests domestically or abroad, and yet actually harms domestic innovation.

Statutory And Constitutional Problems With Judicially-Imposed Patent-Claim Limitations, Sloane Kyrazis

Journal of Intellectual Property Law

The safety valve standard articulated in In re Katz Interactive Call Processing Litigation is at odds with the provisions of the U.S. Patent Act and violates constitutional due process. Without requisite constitutional protections and those protections guaranteed by the U.S. Patent Act, patentees in complex modern patent litigation are at risk of having their patent rights deprived from contrary to the congressional intent articulated in the statute and without requisite process. The courts must balance their need for efficient administration of the law in patent cases by implementing equitable measures to ensure that patentees’ rights are not trampled on. Additionally, …

John Hemings' Monticello And Poplar Forest, J. Wesley Giglio

Journal of Intellectual Property Law

A discussion of John Hemings' creative architectural contributions to Monticello and Poplar Forest, Thomas Jefferson's Virginia Estates. Author argues that Hemings, an enslaved person and a master carpenter, made vital and creative contributions to the building of the two estates which merit legal recognition. Author discusses how legal ideas about moral rights and statutory protections in the Architectural Works Copyright Protection Act could be adapted to cure a historica and representative injustice.

The Best Laid Plans: How Dmca Sec. 1201 Went Awry, Smothering Competition And Creating Giants,And Where We Go Now, Tyler Fabbri

Journal of Intellectual Property Law

In 1998, Congress passed the Digital Millennium Copyright Act with the express intention of protecting the intellectual property of copyright holders from the growing threats of digital piracy and information sharing brought about by an increasingly digital society.

Among the law’s many provisions is §1201, which works to prohibit circumnavigation of digital protections copyright holders may put on protected works—in essence, innovators or competitors would be unable to develop technology or programs to bypass security measures put into place by primary creators. While this provision seems facially reasonable, it has effectively served as a means to quash adversarial interoperability.

Adversarial …

Secrets, Sovereigns, And States: Analyzing State Government's Liability For Trade Secret Misappropriation, Grant Cole

Journal of Intellectual Property Law

Trade secrets are many business's most valuable assets. From Google’s algorithm to Coca-Cola’s secret recipe, trade secrets are becoming increasingly important to businesses and our economy. What if state governments could simply misappropriate these trade secrets without liability? Sadly, this situation is not uncommon. Many state governments have misappropriated trade secrets with virtual impunity. This is because the doctrine of sovereign immunity protects state governments from liability. This leaves businesses that deal with the government without a way to recover for the misappropriation of their trade secrets. This result is especially damaging because once a trade secret is no longer …

Cross-Jurisdictional Analysis Of Damage Awards In Copyright Infringement Cases, Ioana Vasiu, Lucian Vasiu

Journal of Intellectual Property Law

Copyright infringement is a widespread phenomenon that produces massive financial losses to stakeholders. Based on an extensive examination of damage awards in copyright infringement cases from the United States, Canada, Singapore, and Italy, this article proposes a comprehensive cross-jurisdictional analysis. The analysis regards types, factors, methodologies, and arguments. This article's findings can be used to adjust the provisions regarding damage awards, to improve the litigation of such cases, to elaborate educational materials, for professional programs or law school clinics, and to develop better prevention policies. The proposed improvements could lead to a more unified approach to damage awards, increase the …

The Impact Of Implementing A 25-Year Reversion/Termination Right In Canada, Paul J. Heald

Journal of Intellectual Property Law

No abstract provided.

Evidence-Based Patent Damages, Taorui Guan

Journal of Intellectual Property Law

No abstract provided.