Law Commons^™

The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier

Marc R. Poirier

The Cultural Property Claim within the Same Sex Marriage Controversy.

Marc R. Poirier, Seton Hall University School of Law

This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …

"Copynorms, Black Cultural Production And The Debate Over African-American Reparations, Kevin Greene

Kevin Greene

The cultural production of black artists has been central to American society, yet virtually ignored in intellectual property scholarship. This article exlpores how the historical appropriation of works of black authorship ties into the raging debate over black reparations, and contends that providing atonement and apology for cultural appropriation can provide not only redress for the great injustice of cultural appropriation, but can also help inculcate "copynorms" favoring the protection of intellectual property at time when copyright law faces enormous challegnes to its legitimacy.

Who Is Your Starting Pitcher? - Roger Clemens Or #22 On The Yankees?: Why Major League Basaeball Players Should Have Rights In Their Names. , Jason B. Baum

Jason B. Baum

The author examines how complex intellectual property issues affect fantasy baseball. Using CBC Distribution v. Major League Baseball, the author explores why the right of publicity should protect Major League Baseball players from the unauthorized use of Major League Baseball players' statistics in conjunction with their names.

The Twilight Of The Opera Pirates: A Prehistory Of The Exclusive Right Of Public Performance For Musical Compositions, Zvi S. Rosen

Zvi S Rosen

The exclusive right of public performance of a musical composition now brings to composers and songwriters revenue of approximately one billion dollars a year in the US alone. However, this right was not firmly established until a century after America’s first copyright statute, relying until then on the common-law principles that protected unpublished works. The first effort to create this right by statute was the Ingersoll Copyright Bill, an omnibus revision in 1844 which died quickly in committee. After that 50 years passed, and in the final quarter of the nineteenth century the need for statutory protection for public performance …

Fair Use And Copyright Overenforcement, Thomas F. Cotter

Thomas F. Cotter

Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the …

Le Droit De Suite: An Unartistic Approach To American Law, Jonathan D. Tepper

Jonathan D Tepper

This article investigates the expansion of copyright law to include the implementation of the droit de suite or resale royalty on the sale of art in the United States. The articles concludes that royalty rights should not be implemented in the United States because it not only conflicts with many common law doctrines, but also fails to further the goals enumerated in the Copyright Clause of the U.S. Constitution.

The provision and treatment of royalty rights on the resale of art marks a major distinction in the treatment of art between civil law countries such as France and common law …

Payment In Credit: Copyright Law And Subcultural Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with …

Pretty Woman Meets The Man Who Wears The Star: Fair Use After Campbell V. Acuff-Rose Music And American Geophysical Union V. Texaco, Anne E. Forkner, James S. Heller, Patrick F. Speice Jr.

Library Staff Publications

No abstract provided.

Copyright's Empire: Why The Law Matters, Alina Ng

Marquette Intellectual Property Law Review

Previous intellectual property literature demands a balance between incentives to produce for the creator of a work and access to information, knowledge, and content by the users. However, law and economics jurisprudence does not provide compelling arguments to support the notion that the copyright monopoly is the most efficient way to maximize public welfare by promoting the works of authors. The social cost from expansion of private rights is nonexistent because market structures change as technologies develop, providing society with increased accessibility to creative works. Accordingly, copyright laws need to expand as technology develops in order to realize a fair …

Domain And Forum: Public Space, Public Freedom, Rebecca Tushnet

Rebecca Tushnet

How should we think about the relationship between copyright and the First Amendment? Many answers have been proposed to that question, and this short essay does not attempt a comprehensive assessment of the debate. Rather, it examines the similarities and divergences between copyright and First Amendment principles using two points of comparison: the public forum and the public domain. A “public forum” in First Amendment law is a place held in trust by the government for use by the people, whether generally (a traditional public forum) or for specific topics (a limited public forum). By “public domain,” I refer to …

Section 512 In The Educational Context, Laura Quilter

Laura Quilter

No abstract provided.

Fixing Through Legislative Fixation: A Call For The Codification And Modernization Of The Staple Article Of Commerce Doctrine As It Applies To Copyright Law, Blake Evan Reese

Marquette Intellectual Property Law Review

Courts have misinterpreted and disagreed over how to apply relevant principles of patent law to copyright cases in an effort to strike a balance between protecting copyright holders' rights without restricting innovation. The author argues that courts have inflicted damage upon the balance of copyright's competing policies, leaving copyright owners and technology innovators facing great uncertainty. The author's Comment addresses the development of the Staple Defense and the logical reasoning supporting a new legislative proposal.

Commercial Speech Jurisprudence And Copyright In Commercial Information Works, Alfred C. Yen

South Carolina Law Review

No abstract provided.

Maintaining Competition In Copying: Narrowing The Scope Of Gene Patents, Oskar Liivak

Cornell Law Faculty Publications

In supporting gene patents, the patent office, the courts and other supporters have assumed that gene discoveries are identical to traditional inventions and therefore the patent system should treat them as identical. In other words, they have assumed that the relatively broad claims that are used for traditional inventions are also appropriate for encouraging gene discovery. This article examines this assumption and finds that gene discoveries are critically different from traditional inventions and concludes that the patent system cannot treat them as identical.

As a doctrinal matter, this article applies the generally overlooked constitutional requirements of inventorship and originality and …

Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon

Scholarship Chronologically

Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems …

Teaching Intellectual Property As A Skills Course , Malla Pollack

Malla Pollack

Students can gain experience in practical skills in substantive courses if professors spend the time to create appropriate projects. This article demonstrates by providing reproducible projects involving non-competition agreements, trademarks/trade dress, copyright, and patent. The article also explains the how projects can be expanded and how they can be transposed between counseling and litigation settings.

This paper is part of a symposium entitled “Reflections on Legal Education: How We Teach, How They Learn".

Lawful Personal Use, Jessica Litman

Jessica Litman

Whenever someone makes a copy of a copyrighted work, that copy is either authorized by the copyright owner, permitted by some express provision of the copyright statute (such as the ephemeral copy provision in section 112 or the fair use provision in section 107), or infringing. That's what we tell our colleagues and what we teach our students. But most of us don't actually believe it, and this article argues that that understanding of the copyright law is wrong. I make this argument by examining the copyright law through the lens of personal use. Unlike many other jurisdictions, the United …

The Impact Of Regional Trade Areas On International Intellectual Property Rights, Brian Cimbolic

Brian Cimbolic

This article seeks to explore the impact of Customs Unions and Free Trade Areas (Regional Trade Areas, or “RTAs”) on both the developing world’s intellectual property concerns and on the international trade principle of most favored nation status. By examining various RTAs such as the North American Free Trade Agreement (“NAFTA”) and the upcoming Free Trade Agreement of the Americas (the “FTAA”), along with several smaller RTAs, this paper seeks to show that RTAs are undermining the principles of the International Trade Agreements they are a supposed to be a part of by refusing to apply MFN principles and by …

The Protection Of Databases, Daniel J. Gervais

Chicago-Kent Law Review

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the …

Intellectual Property, Free Trade Agreements And Economic Development, Anselm Kamperman Sanders

Georgia State University Law Review

No abstract provided.

Fitting United States Copyright Law Into The International Scheme: Foreign And Domestic Challenges To Recent Legislation, Michael B. Landau

Georgia State University Law Review

No abstract provided.

Discovering Injury? The Confused State Of The Statute Of Limitations For Federal Copyright Infringement. , John Ramirez

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Does Grokster Create A Cause Of Action That Could Implicate The Apple Tv?., Jill David

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Marriage Of Convenience? A Comment On The Protection Of Databases, Jane C. Ginsburg

Chicago-Kent Law Review

No abstract provided.

Creative Lawmaking: A Comment On Lionel Bently, Copyright, Translations, And Relations Between Britain And India In The Nineteenth And Early Twentieth Centuries, Rochelle C. Dreyfuss

Chicago-Kent Law Review

No abstract provided.

Copyright, Translations, And Relations Between Britain And India In The Nineteenth And Early Twentieth Centuries, Lionel Bently

Chicago-Kent Law Review

This paper examines the tension between trade and development, and its handling in multiple layers of law-making through an historical case study concerning copyright in India in the late-nineteenth and early-twentieth century. The paper explains the emergence of views in the Government of India of what copyright law should cover that reflected longstanding but not unproblematic assumptions about India's need for European knowledge and learning. The belief that India needed access to European knowledge informed resistance to the desires of British publishers that copyright owners should be able to control the making of translations of their works. These divergences between …

The Life Of An Author: Samuel Egerton Brydges And The Copyright Act 1814, Ronan Deazley

Georgia State University Law Review

No abstract provided.

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

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Bollywood Is Coming! Copyright And Film Industry Issues Regarding International Film Co-Productions Involving India, Timm Neu

Cornell Law School J.D. Student Research Papers

The Indian film industry produces more movies than any other and is characterized as being on the threshold of emerging as a big market internationally with an expected growth rate of close to 20% per year. Its regulatory and legal mechanisms are developing rapidly to keep pace. This article is dedicated to the Indian film industry and its international potential. It analyzes the copyright aspects of film co-productions involving India and compares the characteristics of the national film industries of Germany, the U.S. and especially India (Bollywood) from a legal perspective. It points to key copyright issues in the field …

Fair Use And Copyright Overenforcement, Thomas F. Cotter

Thomas F. Cotter

Copyright’s fair use doctrine permits the unauthorized reproduction and adaptation of copyrighted expression under a variety of circumstances. Economic analysis posits that these circumstances can be roughly grouped into two categories: first, when the transaction costs of negotiating with the copyright owner for permission exceed the value of the use to the would-be user; and second, when the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn exceeds the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from …