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Full-Text Articles in Law

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig Jan 2018

Book Review: Choreographing Copyright: Race, Gender, And Intellectual Property Rights In American Dance By Anthea Kraut, Carys Craig

Carys Craig

Dance may be one of the world’s oldest art forms, but it is a relatively recent entrant into the sphere of copyright law—and remains something of an afterthought amongst copyright lawyers and scholars alike. For copyright scholars, at least, that should change with the publication of Anthea Kraut’s CHOREOGRAPHING COPYRIGHT: RACE, GENDER, AND INTELLECTUAL PROPERTY RIGHTS IN AMERICAN DANCE. Kraut performs a fascinating exploration of the evolution of choreographic copyright—sweeping, political, polemical—that should leave no one in doubt as to the normative significance of choreography as a subject matter of copyright law and policy. Nor ...


So Happy Together: Should The California Decision Be A Basis To Recognize A Right Of Public Performance In Pre-1972 Sound Recordings?, Vicenç Feliú Dec 2017

So Happy Together: Should The California Decision Be A Basis To Recognize A Right Of Public Performance In Pre-1972 Sound Recordings?, Vicenç Feliú

Vicenç Feliú

One of the peculiarities of American copyright law is the way it deals with sound recordings.  The federal copyright regime treated sound recordings as different from the protection awarded other copies and, consequently, there are some gaps in protection coverage.  Because of how federal protection developed, pre-1972 sound recordings are not protected by federal law and have only the patchwork protection afforded under state laws.
In August of 2013, Mark Volman and Howard Kaylan, the founding members of the 1960s rock group The Turtles, filed a $100 million class action suit in California, under the incorporated name Flo & Eddie, Inc ...


Copyright And Distributive Justice, Justin Hughes, Robert P. Merges Dec 2017

Copyright And Distributive Justice, Justin Hughes, Robert P. Merges

Robert P Merges

Is our copyright system basically fair? Does it exacerbate or ameliorate the skewed distribution of wealth in our society? Does it do anything at all for disempowered people, people at the bottom of the socio-economic hierarchy? In this Article we engage these questions. Our goal is to begin a more comprehensive discussion of the effect the copyright system has on the allocation of wealth in our society.


Unwinding Sony, Peter S. Menell, David Nimmer Dec 2017

Unwinding Sony, Peter S. Menell, David Nimmer

Peter Menell

No abstract provided.


The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre K. Mulligan, Aaron K. Perzanowski Nov 2017

The Magnificence Of The Disaster: Reconstructing The Sony Bmg Rootkit Incident, Deirdre K. Mulligan, Aaron K. Perzanowski

Deirdre Mulligan

No abstract provided.


Panel Ii: The Death Or Rebirth Of The Copyright?, Hugh C. Hansen, Diane Zimmerman, Robert Kasunic, Brett Frischmann Sep 2017

Panel Ii: The Death Or Rebirth Of The Copyright?, Hugh C. Hansen, Diane Zimmerman, Robert Kasunic, Brett Frischmann

Brett Frischmann

No abstract provided.


Equitable Resale Royalties, Brian L. Frye Jun 2017

Equitable Resale Royalties, Brian L. Frye

Brian L. Frye

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held ...


An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr. Jun 2017

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Brian L. Frye

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


Incidental Intellectual Property, Brian L. Frye Jun 2017

Incidental Intellectual Property, Brian L. Frye

Brian L. Frye

As Mark Twain apocryphally observed, “History doesn’t repeat itself, but it often rhymes.” The history of the right of publicity reflects a common intellectual property rhyme. Much like copyright, the right of publicity is an incidental intellectual property right that emerged out of regulation. Over time, the property right gradually detached itself from the regulation and evolved into an independent legal doctrine.

Copyright emerged from the efforts of the Stationers’ Company to preserve its members’ monopoly on the publication of works of authorship. Similarly, it can be argued the right of publicity emerged from the efforts of bubblegum companies ...


An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr. Jun 2017

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Franklin L. Runge

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


Fair Use And Appropriation Art, Niels Schaumann Mar 2017

Fair Use And Appropriation Art, Niels Schaumann

Niels Schaumann

Part I provides some background regarding aesthetic vocabulary in the arts, and traces the use of appropriated images in the twentieth- and twenty-first centuries. Part II discusses the general application of copyright law to appropriation art. Part III examines the current status of the fair use cases that address appropriation art and concludes that the fair use results are better than before, largely because of the ascendancy of “transformativeness” as an important fair use factor. It also concludes, however, that fair use remains insufficient to protect appropriation art. Finally, Part IV re-proposes a solution—an exception to copyright, limited to ...


Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa Nov 2016

Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa

Peter Jaszi

No abstract provided.


Code Of Best Practices In Fair Use For The Visual Arts, Patricia Aufderheide, Peter Jaszi Nov 2016

Code Of Best Practices In Fair Use For The Visual Arts, Patricia Aufderheide, Peter Jaszi

Peter Jaszi

The mission of the College Art Association (CAA) is to promote the visual arts and their understanding through advocacy, intellectual engagement, and a commitment to the diversity of practices and practitioners. CAA contributes to the visual arts profession as a whole through scholarly publications, advocacy, exchange of research and new work, and the development of standards and guidelines that reflect the best practices of the field. The Code of Best Practices in Fair Use for the Visual Arts is based on a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative ...


A Realist Approach To Copyright Law's Formalities, Michael W. Carroll Nov 2016

A Realist Approach To Copyright Law's Formalities, Michael W. Carroll

Michael W. Carroll

Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy ...


Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll Nov 2016

Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll

Michael W. Carroll

This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward infringement or has exercised its supervisory power over the infringer to the "fullest extent"; and (3) the court's choice to sidestep analysis of the "service provider" safe harbors in Section 512 of the Copyright Act should have been better explained but was understandable given the state of the record.


Why Full Open Access Matters, Michael W. Carroll Nov 2016

Why Full Open Access Matters, Michael W. Carroll

Michael W. Carroll

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.


One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll Nov 2016

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Michael W. Carroll

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual ...


Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet Oct 2016

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

David R Hansen

No abstract provided.


Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig Jul 2016

Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig

Carys Craig

The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity ...


The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig Jul 2016

The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig

Carys Craig

This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate ...


Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig Jul 2016

Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig

Carys Craig

This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the ...


Copyright Treatment Of Freelance Work In The Digital Era, Giuseppina D'Agostino Jun 2016

Copyright Treatment Of Freelance Work In The Digital Era, Giuseppina D'Agostino

Giuseppina D'Agostino

No abstract provided.


What Notice Did, Jessica Litman May 2016

What Notice Did, Jessica Litman

Jessica Litman

In this article, I explore the effect of the copyright notice prerequisite on the law's treatment of copyright ownership. The notice prerequisite, as construed by the courts, encouraged the development of legal doctrines that herded the ownership of copyrights into the hands of publishers and other intermediaries, notwithstanding statutory provisions that seem to have been designed at least in part to enable authors to keep their copyrights. Because copyright law required notice, other doctrinal developments were shaped by and distorted by that requirement. The promiscuous alienability of U.S. copyrights may itself have been an accidental development deriving from ...


Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal Apr 2016

Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal

Sonia Katyal

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost ...


Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal Apr 2016

Performance, Property, And The Slashing Of Gender In Fan Fiction , Sonia K. Katyal

Sonia Katyal

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost ...


Fair Use: Its Application, Limitations And Future. , Sonia Katyal, Paul Aiken, Laura Quilter, David O. Carson, John, Jr. G. Palfrey, Hugh C. Hansen Apr 2016

Fair Use: Its Application, Limitations And Future. , Sonia Katyal, Paul Aiken, Laura Quilter, David O. Carson, John, Jr. G. Palfrey, Hugh C. Hansen

Sonia Katyal

No abstract provided.


You're Suing Me? Best Fair Use & Copyright Practices, Stephanie Brenenson, Sarah J. Hammill, Valerie L. Boulos, Jamie Rogers, Stephen Thomson Moore, Brandie Thomas Mar 2016

You're Suing Me? Best Fair Use & Copyright Practices, Stephanie Brenenson, Sarah J. Hammill, Valerie L. Boulos, Jamie Rogers, Stephen Thomson Moore, Brandie Thomas

Valerie Boulos

Do you teach? Do you publish? Do you know how to exercise your fair use rights?

This panel discussion focuses on fair use and copyright practices.

Panels include:

The Basics – Get a general overview of fair use and methods for making fair use decisions, including the four factors and best practices.

Blackboard Behavior! - Learn about best practices when building course content and assignments in Blackboard. Find out about the TEACH Act and how it impacts teaching online.

Good Intentions: Fair Use, Images, and ETDs – Learn about the fair use guidelines pertaining to the use of images in research can be ...


Extending Copyright Protection To Combat Free-Riding By Digital News Aggregators And Online Search Engines, Nancy Whitmore Jan 2016

Extending Copyright Protection To Combat Free-Riding By Digital News Aggregators And Online Search Engines, Nancy Whitmore

Nancy J. Whitmore

No abstract provided.


Fetishizing Copies, Jessica Litman Jan 2016

Fetishizing Copies, Jessica Litman

Jessica Litman

We have copyright laws to encourage authors to create new works and communicate them to the public, because we hope that people will read the books, listen to the music, see the art, watch the films, run the software, and build and inhabit the buildings. That is the way that copyright promotes the Progress of Science. Recently, that not-very-controversial principle has collided with copyright owners’ conviction that they should be able to control, or at least collect royalties from, all uses of their works. A particularly ill-considered manifestation of this conviction is what I have decided to call copy-fetish. This ...


Normalizing Copyright In The Electronic Environment, Vicenç Feliú Jan 2016

Normalizing Copyright In The Electronic Environment, Vicenç Feliú

Vicenç Feliú

This article is an update of an article written by Professor Ann Bartow in 2003 entitled Electrifying Copyright Norms and Making Cyberspace More Like a Book. In Electrifying Bartow examined the social norms applied when using copyrighted works in the analog world, she explains how social norms develop, coalesce, and become de facto rules of behavior. She proposed that, at the time the article was written, real world copyright norms were not making their way into cyberspace because copyright holders were using their own normative view to exercise control of works embodied in electronic formats. She focused on non-profit libraries ...