Law Commons^™

Robots As Pirates, Henry H. Perritt Jr.

Catholic University Law Review

Generative AI has created much excitement over its potential to create new works of authorship in the literary and graphical realms. Its underling machine-learning technology works by analyzing the relations among elements of preexisting material in enormous databases assembled from publicly available and licensed sources. Its algorithms “learn” to predict “what comes next” in different types of expression. A complete system thus can become glib in creating new factual summaries, essays, fictional stories and images.

A number of authors of the raw material used by Generative AI engines claim that the machine learning process infringes their copyrights. Careful evaluation of …

The Proof Is In The Data: How Ethereum And Efficient Audits Can Reduce Litigation In The Streaming Era, Keri Ogden

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

Choreography And Copyright: Why The Law Must Twist And Turn To Serve The Dancing Industry, Gabrielle Mix

The Journal of Business, Entrepreneurship & the Law

With so many hurdles to jump over for choreographers to earn simple rights, it is time to re-evaluate the process of copyright protection for dance. In part A, this comment will discuss the history of copyright law and choreography. Part B will analyze the requirements copyright has placed on choreography and the struggles courts face in applying them. Part C will discuss the spread of online choreography and the difficulties these choreographers face regarding copyright protection. Part D will discuss additional reasons why choreographers are not seeking copyright protection. Part E will discuss the barriers choreographers face in proving infringement, …

Know When To Hold Them, When To Fold Them, And When To Walk Away: Tiktoks Are Professional Sports Franchises' Ace In Collective Bargaining Negotiations, Angelica Varona

Pepperdine Law Review

TikTok, the social media app, has become both a central force in entertainment, creating a slew of influencers and young celebrities, as well as an important tool in all things branding and marketing. Athletes have recognized the value of social media and fan engagement and have taken to becoming content-creators on the platform. The growing presence of professional athletes on the app brings up important issues of copyrightability and ownership of the content they are producing. This Comment considers the nature of athlete content-creation on TikTok as well as the employment scheme and contractual responsibilities that form a part of …

Quantum Copyright Law: Schrödinger’S Cat, Banksy’S Shredder, And Art On The Edge, Richard Chused

Northwestern Journal of Technology and Intellectual Property

An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right? And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.

Before the box was welded shut, a set …

“This Artwork Is Always On Sale”: The Need For A U.S. Resale Royalty Right For Digital Visual Artists In This Technological Age, And Proof Of Concept Through The Blockchain And Nfts Explosion, Janae Camacho

Washington Journal of Law, Technology & Arts

With the explosion of the internet, social media, non-fungible tokens (“NFTs”), and blockchain technology, there has been a shift in how people consume and commercialize art, thus resulting in the increased use of digital visual mediums to create, purchase, and receive payment for visual artwork. This increase has renewed the question of whether the United States should implement a resale royalty right for visual work artists. This question is of concern, especially in this digital age where it has become more difficult for digital visual artists to receive equitable compensation for their work, like that of their musical and written …

One Small Step On Tiktok, One (Possibly) Giant Leap For The Dance Community: How Tiktok Spearheaded A Change In The Seemingly Stagnant Field Of Copyright Law, Sydney L. Solferino

Catholic University Journal of Law and Technology

No abstract provided.

Keeping It Real: Property Analogies For Graffiti Infringement, Shelby Pickar-Dennis

University of Colorado Law Review

No abstract provided.

Copyright Co-Ownership In Uncertain Times: How Security Interests Can Save The Day, Evie Whiting, Ashleigh Stanley

Vanderbilt Journal of Entertainment & Technology Law

Films and television series are increasingly being created undera co-production model, making copyright co-ownership a common occurrence in the world of Hollywood content creation. So long as each co-owner’s rights are pre-negotiated and specifically delineated in their contracts, the co-owners can rest assured that their rights to the project and any potential derivative works are safe. Or can they?

In the modern entertainment landscape, where tentpole programming and related spinoffs and derivatives are the gold standard of content creation, the proper protection of co-owned copyrights is more important than ever. But tenuous financial outlooks pose a looming, existential threat to …

"Stronger" Together: Kanye Could Have Owned His Masters By Engaging In Collective Bargaining, L. Camille Cordova

Pepperdine Dispute Resolution Law Journal

Because the legislature and judiciary have failed to protect recording artists’ interests, this article proposes that engaging in collective bargaining will re-balance the bargaining positions of the major record labels and recording artists to create a mutually beneficial agreement that gives recording artists a termination of rights clause that mirrors section 203 of the 1976 Copyright Act. By contracting with a major record label, recording artists are automatically eligible for union membership to the Screen Actors Guild-American Federation of Television and Radio Artists union (“SAG-AFTRA”), who have experience negotiating other collective-bargaining agreements with these record labels. This agreement would provide …

“Sorry,” But I Didn’T Release It: How The Court’S Analysis Of The Fair Use Doctrine In Chapman V. Maraj Protects Innovation And Creativity In The Music Industry, Samantha Ross

University of Miami Business Law Review

The fair use doctrine is an important affirmative defense to copyright infringement when a particular use does not interfere with copyright law’s primary goal of promoting creativity for the public good. Artists and songwriters frequently experiment with copyrighted music without permission before seeking licensing approval from the original rights holders to “sample” or “replay” the work. In Chapman v. Maraj—a copyright infringement suit brought by Tracy Chapman against Nicki Minaj—the United States District Court for the Central District of California held that experimenting with a copyrighted musical composition for the purpose of creating a new work with an intent to …

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Pepperdine Law Review

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

Thieves In The Temple: The Scandal Of Copyright Registration And African- American Artists, Kevin J. Greene

Pepperdine Law Review

Copyright registration is the currency of copyright transactions in music, film, and television and is essential for pursuing infringement claims and ownership disputes. Despite copyright registration’s outsized reach across the copyright spectrum and importance to the copyright industries, the U.S. Copyright Office does not verify claims of copyright authorship or ownership. No express mechanism exists to challenge false copyright registrations in the Copyright Office, and the penalties for falsely claiming copyright authorship are paltry in comparison to the potential gains. This Article contends that lax copyright registration standards call into question the legitimacy of the registration system and that the …

Copyright's Deficit: Technology, Modern Consumer Preferences, And The Music Marketplace, Taylor A. Collins

Pace Intellectual Property, Sports & Entertainment Law Forum

While it is clear, and arguably has been for the last five years, that paid subscription streaming is the future of the music industry, the law has failed to keep pace with “modern consumer preferences and technological developments in the music marketplace.” The Music Modernization Act of 2018 (MMA), which amends the U.S. copyright law, 17 U.S.C., is Congress’s effort to keep pace with the music industry by fixing our cumbersome and inefficient music licensing system. The MMA is a step in the right direction, but it falls short of Congress’s goal. Focusing on Title I of the MMA—the Music …

Must American Artists Starve?

Florida A & M University Law Review

This legal essay proposes a solution to the problem of artist and publisher compensation as deprived by MMA and discusses the realities and limitations of pursuing a Takings Clause violation under the Fifth Amendment. It further proposes a modern perspective on copyrighted works as property to lay the intellectual foundation for copyright reform and offers that the “best efforts” standard should replace the “commercially reasonable efforts” standard since modernizing copyright law is essential to the music industry. Lastly, the author suggests a practical approach to pursuing a Due Process claim under the Fifth Amendment.

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

The Music Industry: Drowning In The Stream, Jonathan Croskrey

Journal of the National Association of Administrative Law Judiciary

The Department of Justice is reviewing two of it's oldest consent decrees, which were entered into with ASCAP and BMI. ASCAP and BMI are the two original performing rights organizations and existed well before streaming. This article analyzes copyright and antirust law through the lens of modern technology and the current landscape of the music industry. It examines whether the consent decrees should be removed or modified and what the consequences of each would be.

Fairness, Copyright, And Video Games: Hate The Game, Not The Player, Shani Shisha

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of literature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has explored the social norms that pervade the world’s largest content microcosm—the sprawling video game community.

Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture industries. But despite its meteoric rise, the video game industry has provoked little attention from copyright scholars. This Article is the first to explore the shifting …

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Copyright Fair Use And The Digital Carnivalesque: Towards A New Lexicon Of Transformative Internet Memes, David Tan, Angus J. Wilson

Fordham Intellectual Property, Media and Entertainment Law Journal

The influence of social media in the 21st century has led to new social norms of behavior with individuals presenting themselves to others, whether physically or virtually, on various social media platforms. As a result, these new trends have led recent society to be characterized as a “presentational cultural regime” and a “specular economy.” In a Bakhtinian digital carnivalesque, internet memes present a feast of challenges to exceptions and limitations in copyright law. Memes encompass a wide range of expression about the human experience, while also existing as a playful mode of culturally permissible expression in online social communications rather …

Payin’ The Price To Grab A Slice…Of Music! A Guide To Music Licensing For Businesses, Nila Jackson

Cybaris®

This paper provides information that may be useful to people seeking to acquire music licenses for their places of business and is primarily focused on licensing for food and drink establishments. However, other business types that use live or recorded music in their establishments may find the information useful as well. The purpose of this paper is to provide a brief history of copyright law, and an overview of music licensing to give business owners a better understanding of copyright as it relates to public performance.

Independent Filmmaking In The Final Frontier: Intellectual Property Issues With Making Independent Films In Space, Jesse Green

Cybaris®

No abstract provided.

The Problem Of Modern Monetization Of Memes: How Copyright Law Can Give Protection To Meme Creators, Mark Marciszewski

Pace Intellectual Property, Sports & Entertainment Law Forum

Some legal questions answered in this article on the horizon for the courts and lawyers is how should courts apply copyright law to popular media made by small scale creators and shared on the internet, otherwise known as "memes."

Part II of this article will focus on validity of potential copyright protection in internet memes. It will start by describing the increased monetization surrounding memes and how this monetization calls for greater interest for meme creators to protect their work. It will then describe the merits of individual copyright interests in internet memes.

Part III of this article will focus …

Creative Destruction: Copyright's Fair Use Doctrine And The Moral Right Of Integrity, Cathay Y. N. Smith

Pepperdine Law Review

This Paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor or reputation. Actions that have been found to violate an author’s moral right of integrity include, for instance, altering a mural by painting clothing over nude figures, selling separated panels of a single work of art, and displaying sculptures with holiday ribbons. At the same time, copyright’s fair use doctrine allows follow-on creators to transform original works …

The Clash Between Terrestrial And Digital Radio: Pinned By The Music Modernization Act, Dianlyn Cenidoza

Seattle University Law Review

Copyright law, specifically music licensing, has long been outdated due to changes in the way people listen to music. With the proliferation of technology, listeners can now enjoy music via channels that did not exist just a few decades ago. As a consequence, music creators have faced years of economic inequality. Songwriters, artists, and musicians have fought a long, and often fruitless, battle for justice—legislation that would change music law for the better has continuously been struck down. However, in 2018, the Music Modernization Act (MMA) was signed into law, representing a battle won for music creators. This Comment will …

Copyrighting Experiences: How Copyright Law Applies To Virtual Reality Programs, Alexis Dunne

The Journal of Business, Entrepreneurship & the Law

This note will attempt to shed light on the question of what kind of protection copyright law affords VR experiences. Part II discusses the nature of VR experiences and their implementation through specifically tailored VR technology. Part III provides an overview of copyright protection, its limitations, and specifically the history of the copyrightability of computer programs. Parts IV and V outline case law relevant to the discussion of the copyrightability of different types of VR experiences and how that case law similarly or dissimilarly apply to the protection of VR experiences. Part IV focuses on protecting VR experiences as a …

Blurred Justice, Allen Madison, Paul Lombardi Ph.D

Loyola of Los Angeles Entertainment Law Review

This article discusses a recent controversial copyright case involving inspiration. Marvin Gaye’s family, who owns the copyright to “Got to Give It Up,” claimed that “Blurred Lines,” made famous by Robin Thicke, infringes on the family’s copyright. The Gaye family prevailed at trial. At summary judgment, the Federal District Court permitted the case to go to trial without determining whether there were elements to “Got to Give It Up” that were unprotected as unoriginal, commonplace musical ideas, or musical building blocks. Had the court made such a determination, it is doubtful the case would have gone to trial. The summary …

Jason’S Long Night At Camp Blood: Surveying The Independent Copyrightability Of Jason Voorhees In The Wake Of Horror Inc. V. Miller, Tim Kelly

Cybaris®

No abstract provided.