Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 100

Full-Text Articles in Law

Recreating Copyright: The Cognitive Process Of Creation And Copyright Law, Omri Rachum-Twaig Feb 2017

Recreating Copyright: The Cognitive Process Of Creation And Copyright Law, Omri Rachum-Twaig

Fordham Intellectual Property, Media and Entertainment Law Journal

Copyright law reflects the intuitive understanding of creativity in the eyes of the law. This is because copyright law’s primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology’s understanding of the creative process? This Article examines whether copyright law is harmonious with cognitive psychology’s understanding of creativity. Some scholars posit that theories of creativity fit well with current copyright law. In an article published in the Harvard Law Review, Joseph Fishman, a scholar studying the relationship between intellectual property and creativity, argued that, based upon some ac- counts ...


Locking Out Locke: A New Natural Copyright Law, Joseph A. Gerber Apr 2016

Locking Out Locke: A New Natural Copyright Law, Joseph A. Gerber

Fordham Intellectual Property, Media and Entertainment Law Journal

For decades lawyers, professors, philosophers, and law students have been trapped in an endless, two-sided debate regarding the justification for copyright law in the United States. On one side stand the utilitarians, who argue that modern American copyright law amounts to nothing more than positive law2 in the form of an economic incentive for authors to express themselves creatively. Natural law theorists, on the other hand, argue that there is some- thing more substantial behind the current copyright regime—that copyright is not merely a formulation of positive law, but a recogni- tion of philosophical principles of ownership inherent in ...


The Lost Language Of The First Amendment In Copyright Fair Use: A Semiotic Perspective Of The “Transformative Use” Doctrine Twenty-Five Years On, David Tan Feb 2016

The Lost Language Of The First Amendment In Copyright Fair Use: A Semiotic Perspective Of The “Transformative Use” Doctrine Twenty-Five Years On, David Tan

Fordham Intellectual Property, Media and Entertainment Law Journal

It has been twenty-five years since Judge Pierre Leval published his iconic article, “Toward a Fair Use Standard,” urging that courts adopt a new guiding principle of “transformative use” to determine whether an unauthorized secondary use of a copy-righted work is fair. The Supreme Court’s emphatic endorsement of this approach in 1994 has resulted in a remarkable judicial expansion of the transformative use doctrine which today covers virtually any “creation of new information, new aesthetics, new in-sights and understandings.” While the Supreme Court reiterated in Golan v. Holder in 2012 that the fair use defense is one of copyright ...


Using Copyright To Remove Content: An Analysis Of Garcia V. Google, Elizabeth Martin Feb 2016

Using Copyright To Remove Content: An Analysis Of Garcia V. Google, Elizabeth Martin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note will investigate how individuals attempt to use copyright law, instead of seeking damages for emotional distress or privacy, by using Garcia I and Garcia II as examples. Part I will provide background on Garcia I and Garcia II, the facts leading up to the lawsuit, the first decision and the criticism surrounding it, and the second decision. Part II will discuss what other legal methods Garcia may have used to achieve the same result and potentially obtain the same relief if she decided not to sue for copyright infringement. Part III will look beyond Garcia I and Garcia ...


“It’S Been A Hard Day’S Night” For Songwriters: Why The Ascap And Bmi Consent Decrees Must Undergo Reform, Brontë Lawson Turk Jan 2016

“It’S Been A Hard Day’S Night” For Songwriters: Why The Ascap And Bmi Consent Decrees Must Undergo Reform, Brontë Lawson Turk

Fordham Intellectual Property, Media and Entertainment Law Journal

In order to guarantee reasonable fees for songwriters, composers, and publishers, the consent decrees must undergo critical reform to account for how music is licensed in new media. Part I of this Note will provide background on the mechanics of music licensing, both traditional and through modern mediums, in order to explain why the two largest PROs initially entered into governmental consent decrees. Part II will discuss recent judicial determinations of “reasonable” licensing rates for public performances in new media and demonstrate the discrepancy in compensation between songwriters and their sound recording counterparts, namely record companies and recording artists. Finally ...


The Need For "Supreme" Clarity: Clothing, Copyright, And Conceptual Separability, Jacqueline Lefebvre Jan 2016

The Need For "Supreme" Clarity: Clothing, Copyright, And Conceptual Separability, Jacqueline Lefebvre

Fordham Intellectual Property, Media and Entertainment Law Journal

For the first time in history, the U.S. Supreme Court will address copyright protection in the context of apparel in the case Star Athletica, LLC v. Varsity Brands, Inc. This case tackles arguably the most vexing, unresolved question in copyright law: How to determine whether artistic features of a useful article—such as a garment or piece of furniture—are conceptually separable from the article and thus protectable. Indeed, this case comes more than sixty years after Mazer v. Stein, the Supreme Court’s first and,until this date, only decision in this area. A lack of clear guidance ...


The Enigma Of Photography, Depiction, And Copyright Originality, Terry S. Kogan Jun 2015

The Enigma Of Photography, Depiction, And Copyright Originality, Terry S. Kogan

Fordham Intellectual Property, Media and Entertainment Law Journal

Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual ...


“I Have A [Fair Use] Dream”: Historic Copyrighted Works And The Recognition Of Meaningful Rights For The Public, Arlen W. Langvardt Jun 2015

“I Have A [Fair Use] Dream”: Historic Copyrighted Works And The Recognition Of Meaningful Rights For The Public, Arlen W. Langvardt

Fordham Intellectual Property, Media and Entertainment Law Journal

Dr. Martin Luther King wrote and delivered his famous “I Have a Dream” speech more than fifty years ago. When he obtained copyright protection on the speech in 1963, Dr. King (and later his estate) would have expected the copyright to last a maximum of fifty-six years. That fifty-six-year copyright has become a ninety-five-year copyright, thanks to lengthy duration extensions enacted by Congress in the mid-1970s and late 1990s. As a result, the copyright on the “I Have a Dream” speech will not expire until the end of 2058. Because the Estate of Martin Luther King, Jr., Inc. and its ...


Toward A Fair Use Standard Turns 25: How Salinger And Scientology Affected Transformative Use Today, Benjamin Moskowitz Jun 2015

Toward A Fair Use Standard Turns 25: How Salinger And Scientology Affected Transformative Use Today, Benjamin Moskowitz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble Jan 2015

The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble

Fordham Intellectual Property, Media and Entertainment Law Journal

From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements. This Article posits that the ...


Copyright And Free Expression In China’S Film Industry, Eric Priest Jan 2015

Copyright And Free Expression In China’S Film Industry, Eric Priest

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article analyzes whether copyright, which creates private rights in original expression and is therefore a legal tool for restricting the dissemination of information, exacerbates or undercuts state censorship in China’s film industry. Recent scholarship suggests that copyright law reinforces China’s oppressive censorship regime because both copyright and state censorship erect legal barriers around expressive works. The theory that copyright enhances censorship in China, however, overlooks the immense tension between state attempts at information control and market-supported information production made possible by copyright. This Article demonstrates that the Chinese government does not wield unchecked, top-down control over China ...


The Anti-Economy Of Fashion; An Openwork Approach To Intellectual Property Protection, Amy L. Landers Jan 2014

The Anti-Economy Of Fashion; An Openwork Approach To Intellectual Property Protection, Amy L. Landers

Fordham Intellectual Property, Media and Entertainment Law Journal

Fashion’s cultural connections provide the groundwork for a theory to resolve the critical questions of protection for works that draw strongly on exogenous inputs. This article proposes that narrow protection for fashion is both economically justified, theoretically sound, and beneficial to the field because it facilitates spillovers in a manner that allows others to create the endless variations that are the lifeblood of this vibrant industry. Such protection relies on a theory of openworks, which applies to designs that have a high level of input from outside of the creator’s realm of activity. In fashion, inspiration that derives ...


Appropriation And Transformation, Darren Hudson Hick May 2013

Appropriation And Transformation, Darren Hudson Hick

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent decision in Cariou v. Prince has reinvigorated a pressing issue for the contemporary movement of appropriation art: how can art which is defined by its taking from other artworks hope to survive in the world of copyright? In this article, I consider the legal history leading to the Cariou case, including a series of suits brought against appropriation artist Jeff Koons, as well as strategies proposed by several theorists for accommodating appropriation art within the law. Unfortunately, largely due to vagaries of the law and the misunderstood nature of appropriation art, the matter remains unresolved. I argue that ...


Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg May 2013

Reexamining Two Pesos, Qualitex, & Wal-Mart: A Different Approach…Or Perhaps Just Old Abercrombie Wine In A New Bottle?, Russ Versteeg

Fordham Intellectual Property, Media and Entertainment Law Journal

In Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), the United States Supreme Court held that, in order for a product design to be protectable under § 43(a) of the Lanham Act, the product design must first acquire a secondary meaning. Writing for the Court, Justice Scalia, reasoned that consumers, as a rule, do not expect a product’s design to serve as an indicator of source. The Court stated that product designs, like colors, do not ordinarily operate as source indicators, and that is why the Court established its rule that a product design must ...


Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean Apr 2013

Asserting Patents To Combat Infringement Via 3d Printing: It’S No “Use”, Daniel Harris Brean

Fordham Intellectual Property, Media and Entertainment Law Journal

Three-dimensional ("3D") printing technology, which enables physical objects to be "printed" as easily as words can be printed on a page, is rapidly moving from industrial settings into consumers' homes. The advent of consumer grade 3D printers fundamentally alters the traditional allocation of manufacturing infrastructure and sales activity. No longer do manufacturers need to make, sell, and ship physical products in their physical states. Rather, consumers may download digital representations of products over the Internet for printing in the comfort their own homes. For products sold in this fashion that are patented, this presents difficult hurdles to enforcement against infringers ...


Access Denied: How Social Media Accounts Fall Outside The Scope Of Intellectual Property Law And Into The Realm Of The Computer Fraud And Abuse Act, Tiffany Miao Apr 2013

Access Denied: How Social Media Accounts Fall Outside The Scope Of Intellectual Property Law And Into The Realm Of The Computer Fraud And Abuse Act, Tiffany Miao

Fordham Intellectual Property, Media and Entertainment Law Journal

This note addresses the challenge of applying intellectual property laws to determining ownership rights over social media accounts, specifically in the employer and employee context. This note suggests that IP regimes, namely Trademark, Copyright,and Trade Secrets, fail to provide an adequate framework for determining such ownership rights. Instead, this note proposes that the Computer Fraud and Abuse Act serves as a more appropriate legal framework.


The Incompatibility Of Droit De Suite With Common Law Theories Of Copyright, Alexander Bussey Apr 2013

The Incompatibility Of Droit De Suite With Common Law Theories Of Copyright, Alexander Bussey

Fordham Intellectual Property, Media and Entertainment Law Journal

Although proponents have recently been attempting to strengthen droit de suite, or artists' resale royalty rights, throughout the world, all laws based on the right are flawed — so much so that further implementation would have almost none of the positive effects that its sponsors hope for. This is to say that droit de suite, which is meant to protect young artists, actually discourages the creation of art by young artists, and reduces the amount of money an artist can make from a sale. Furthermore, droit de suite conflicts with basic common law notions of copyright and property and is incompatible ...


News On The Internet, Robert Denicola Jan 2013

News On The Internet, Robert Denicola

Fordham Intellectual Property, Media and Entertainment Law Journal

Newspapers are in trouble. Circulation and advertising are down as readers shift from print to online media. Although changing reader preferences and the loss of lucrative classified advertising to online sources are major worries, the news media seems preoccupied with news aggregators and bloggers who distribute news content on the internet without permission. Newspapers are not the only ones worried about the unauthorized distribution of "their" news on the internet. Financial services companies are unhappy about the distribution of their "hot" stock recommendations and other content providers seek to control online news ranging from movie schedules to business ratings. Traditional ...


The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble Apr 2012

The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble

Fordham Intellectual Property, Media and Entertainment Law Journal

Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location — a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of raising borders in cyberspace, focuses ...


Museum Policies And Art Images: Conflicting Objectives And Copyright Overreaching, Kenneth D. Crews Jan 2012

Museum Policies And Art Images: Conflicting Objectives And Copyright Overreaching, Kenneth D. Crews

Fordham Intellectual Property, Media and Entertainment Law Journal

Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article ...


Sampling, Looping, And Mashing . . . Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans Jul 2011

Sampling, Looping, And Mashing . . . Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Fordham Intellectual Property, Media and Entertainment Law Journal

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship. For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently ...


Finding A Home For Orphans: Google Book Search And Orphan Works Law In The United States And Europe, Katharina De La Durantaye Jan 2011

Finding A Home For Orphans: Google Book Search And Orphan Works Law In The United States And Europe, Katharina De La Durantaye

Fordham Intellectual Property, Media and Entertainment Law Journal

The Google Books case and its proposed settlement have provoked heated debate. Objections to the settlement proposals have come from virtually all sides—from Google’s competitors to public interest organizations, state attorneys general, the U.S. Department of Justice, and even foreign countries such as France and Germany. While it is impossible to know what the terms of the final settlement will be, it is already clear that one of the settlement’s most important consequences will be how it changes the orphan works debate, both in the United States and in Europe. This Article argues that the Google ...


Copyright Enforcement In The Cloud, Marc Aaron Melzer Jan 2011

Copyright Enforcement In The Cloud, Marc Aaron Melzer

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow Dec 2010

Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Role Of The Non-Functionality Requirement In Design Law, Orit Fischman Afori Mar 2010

The Role Of The Non-Functionality Requirement In Design Law, Orit Fischman Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Can Newspapers Be Saved? How Copyright Law Can Save Newspapers From The Challenges Of New Media, Keiyana Fordham Mar 2010

Can Newspapers Be Saved? How Copyright Law Can Save Newspapers From The Challenges Of New Media, Keiyana Fordham

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


I Own Therefore I Am: Copyright, Personality, And Soul Music In The Digital Commons, David Dante Troutt Dec 2009

I Own Therefore I Am: Copyright, Personality, And Soul Music In The Digital Commons, David Dante Troutt

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Teaching Without Infringement: A New Model For Educational Fair Use , David A. Simon Dec 2009

Teaching Without Infringement: A New Model For Educational Fair Use , David A. Simon

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Million Dollar Baby: Celebrity Baby Pictures And The Right Of Publicity , Natalie Grano Dec 2009

Million Dollar Baby: Celebrity Baby Pictures And The Right Of Publicity , Natalie Grano

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


The Public As Creator And Infringer: Copyright Law Applied To The Creators Of User-Generated Video Content , David E. Ashley Dec 2009

The Public As Creator And Infringer: Copyright Law Applied To The Creators Of User-Generated Video Content , David E. Ashley

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.