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Full-Text Articles in Law

Cheddar, Not Swiss: A Director’S Interest In Copyright, Amanda Schwartz Apr 2017

Cheddar, Not Swiss: A Director’S Interest In Copyright, Amanda Schwartz

Seton Hall Circuit Review

No abstract provided.


The Story So Far: Recap And Update On Flo & Eddie, Eric Harbeson Apr 2017

The Story So Far: Recap And Update On Flo & Eddie, Eric Harbeson

American Music Research Center Faculty Contributions

Reviews recent developments in the ongoing litigation of Mark Volman and Howard Kaylan (aka Flo & Eddie) against digital streaming two digital streaming services, Sirius XM and Pandora. Through pro bono counsel, ARSC has participated in the litigation as amici. The article reports promising developments: the case in New York has been concluded in favor of Sirius XM, while the litigation continues in Florida and California.


Substantial Similarity: Kohus Got It Right, Gabriel Godoy-Dalmau Apr 2017

Substantial Similarity: Kohus Got It Right, Gabriel Godoy-Dalmau

Michigan Business & Entrepreneurial Law Review

This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.


Jailbreak!: What Happens When Autonomous Vehicle Owners Hack Into Their Own Cars, Michael Sinanian Apr 2017

Jailbreak!: What Happens When Autonomous Vehicle Owners Hack Into Their Own Cars, Michael Sinanian

Michigan Telecommunications and Technology Law Review

Autonomous and connected vehicles (ACVs) are a transformational force for humanity. It is highly likely that some owners of ACVs will circumvent their vehicle software to expose unauthorized functionality, known as “jailbreaking”. This would trigger copyright liability, the extent of which would be dependent upon the copyright system’s various rulemaking processes and common law interpretations. This note explores the world of software “jailbreaking”, with its roots in smartphone unlocking, and extrapolates that to ACVs. Some compelling (and at times dangerous) scenarios are contemplated, and recommendations are made for consumers, technologists, manufacturers, and policy makers.


R&D Spending And Patenting In The Technology Hardware Sector In Nations With And Without Fair Use, Michael Palmedo Apr 2017

R&D Spending And Patenting In The Technology Hardware Sector In Nations With And Without Fair Use, Michael Palmedo

PIJIP Research Paper Series

This working paper uses two common indicators of innovation to see how the technology hardware sector compares in countries with and without fair use. It illustrates that research and development spending by firms in these industries has been higher in countries with fair use, controlling for other firm- and country-level factors. It then shows more patents have been granted to the technology sector in countries that have adopted fair use, relative to patents granted to firms in the same industries in other countries, controlling for other country-level factors.


The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh Apr 2017

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Michigan Law Review

Review of What’s Wrong with Copying? by Abraham Drassinower.


Seeing’S Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of Pictorial, Graphic, And Sculptural Works, Moon Hee Lee Apr 2017

Seeing’S Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of Pictorial, Graphic, And Sculptural Works, Moon Hee Lee

Northwestern University Law Review

Before imposing liability for copyright infringement, a court analyzes whether the defendant’s allegedly infringing work is substantially similar to the copyright-holder plaintiff’s allegedly infringed work. This substantial similarity analysis broadly contains two steps. First, facts and ideas do not receive copyright protection and are filtered out. Second, the two works are compared to see if there is material overlap between the two works’ remaining creative expression—i.e., whether or not the two works are substantially similar. This two-step approach furthers the delicate dual goal of copyright law to keep ideas and facts freely available as raw material ...


Equitable Resale Royalties, Brian L. Frye Apr 2017

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

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 ...


Control Or Promote? China's Cultural Censorship System And Its Influence On Copyright Protection, Tianxiang He Mar 2017

Control Or Promote? China's Cultural Censorship System And Its Influence On Copyright Protection, Tianxiang He

Tianxiang HE

China is famous for its strict censorship system regarding cultural goods. China is not, of course, the only country which advocates censorship, but its uniqueness lies in the political purposes that its censorship system serves. This article explores China's censorship system in the cultural sector in detail. It examines the ex ante and ex post censorship system in three major areas – publications, traditional broadcasting channels and online publishing – as well as the interplay between related legislations, regulations and national enforcement campaigns. This article explains how China uses these legal instruments and utilizes enforcement campaigns to strategically live up to ...


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 ...


Show Me The Money: Determining A Celebrity’S Fair Market Value In A Right Of Publicity Action, Cody Reaves Mar 2017

Show Me The Money: Determining A Celebrity’S Fair Market Value In A Right Of Publicity Action, Cody Reaves

University of Michigan Journal of Law Reform

As the power of celebrity continues to grow in the age of social media, so too does the price of using a celebrity’s name and likeness to promote a product. With the newfound ease of using Twitter, Facebook, and even print media to use a celebrity’s identity in conjunction with a product or company, right of publicity concerns arise. When a company uses a celebrity’s name and likeness without the celebrity’s authorization to market or sell a product, companies open themselves up to right of publicity suits. Many of these cases settle out of court. But ...


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 ...


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

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

Notre Dame Law Review

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.


Causing Copyright, Shyamkrishna Balganesh Jan 2017

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet, modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated, yet distinct theory of authorial causation, which connects the element of human agency to a work ...


Trademarks And Digital Goods, Mark Mckenna, Lucas S. Osborn Jan 2017

Trademarks And Digital Goods, Mark Mckenna, Lucas S. Osborn

Journal Articles

Technology increasingly allows for digital distribution of goods that once might once have been offered in physical form, radically separating the design and production processes. That separation has potentially destabilizing consequences for trademark law, which overwhelmingly has been oriented toward indications of the origin of physical goods. For one thing, digitization brings much more of trademark law into contact with the Supreme Court's Dastar decision, raising difficult questions about whether, and under what circumstances, digital files count as “goods” for Lanham Act purposes. More broadly, a world of increasing digitization implicates concerns about the boundaries of trademark law vis-à-vis ...


What's In, And What's Out: How Ips Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman Jan 2017

What's In, And What's Out: How Ips Boundary Rules Shape Innovation, Mark Mckenna, Christopher J. Sprigman

Journal Articles

Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.

This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s ...


Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley Jan 2017

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

Scholarly Works

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is ...


Return Of The De Minimis Exception In Digital Music Sampling: The Ninth Circuit's Recent Holding In Vmg Salsoul Improves Upon The Sixth Circuit's Holding In Bridgeport, But Raises Questions Of Its Own, Francesco Di Cosmo Jan 2017

Return Of The De Minimis Exception In Digital Music Sampling: The Ninth Circuit's Recent Holding In Vmg Salsoul Improves Upon The Sixth Circuit's Holding In Bridgeport, But Raises Questions Of Its Own, Francesco Di Cosmo

Washington University Law Review

Sampling is a musical production practice that has become increasingly common since the 1980s. A producer samples by copying a section of a sound recording and inserting it into the piece of music she is producing. The type of sound recording sampled by producers can vary vastly from piece to piece. Numerous pop and hip hop songs sample from songs of various genres (rock, classical music, or other pop songs, for example). Audio from a film, commercial, or speech may also be inserted into a song. Typically, the purpose of these samples is either to make use of the musical ...


Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu Jan 2017

Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu

Washington University Law Review

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that “tarnish” a trademark. Copyright owners also articulate fears of tarnishing uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of works will find the tarnished works less valuable afterwards. This Article presents two novel experimental tests of the tarnishment hypothesis, focusing on unauthorized ...


Where's The Fair Use? The Takedown Of Let's Play And Reaction Videos On Youtube And The Need For Comprehensive Dmca Reform, Jessica Vogele Jan 2017

Where's The Fair Use? The Takedown Of Let's Play And Reaction Videos On Youtube And The Need For Comprehensive Dmca Reform, Jessica Vogele

Touro Law Review

No abstract provided.


Is Fair Use Actually Fair In The Digital Age For Good-Faith Creators: A Call For A Broader Interpretation Of The Fair Use Doctrine In The Digital Age, Joseph Tromba Jan 2017

Is Fair Use Actually Fair In The Digital Age For Good-Faith Creators: A Call For A Broader Interpretation Of The Fair Use Doctrine In The Digital Age, Joseph Tromba

Touro Law Review

No abstract provided.


Finding A Fair Balance For The Right Of Publicity And First Amendment Protections, Christine Digregorio Jan 2017

Finding A Fair Balance For The Right Of Publicity And First Amendment Protections, Christine Digregorio

Touro Law Review

No abstract provided.


Fair Use Is Good For Creativity And Innovation, Bill Patry Jan 2017

Fair Use Is Good For Creativity And Innovation, Bill Patry

PIJIP Research Paper Series

Commenting on legal debates in other countries is usually bad manners. When, however, the debates concern a law from your own country, and that law is being misrepresented, it may be of service to set the record straight. The record, based on almost 300 years of Anglo-American case law and the experiences of those of us who apply fair use every day in our jobs, demonstrates that fair use is good for creativity and innovation, and in practice works well. You don’t have to take my word for it; if you are willing to put the time in, and ...


Confining Cultural Expression: How The Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion, April M. Hathcock Jan 2017

Confining Cultural Expression: How The Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion, April M. Hathcock

American University Journal of Gender, Social Policy & the Law

No abstract provided.


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

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

Law Faculty Scholarly Articles

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 Jan 2017

Incidental Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

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 ...


Against Creativity, Brian L. Frye Jan 2017

Against Creativity, Brian L. Frye

Law Faculty Scholarly Articles

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement.

The creativity requirement should be abandoned because it is irrelevant to the scope of copyrightable subject matter and distorts copyright doctrine by encouraging inefficient “creativity rhetoric.” The purpose of copyright is to encourage the production of economically valuable works of authorship, not creativity.


Finding And Using Images, While Respecting Copyright, Roger V. Skalbeck Jan 2017

Finding And Using Images, While Respecting Copyright, Roger V. Skalbeck

Law Faculty Publications

Text plays a central role in nearly every lawyer’s life. From cases to codes to contracts, words matter tremendously. At times, words alone are insufficient. A well-selected image can evoke emotion and attract attention. While there are literally millions of images online available for use without cost, a well sourced and properly referenced image should recognize and respect the creator’s intellectual property rights. Here are tips for finding and using images, while respecting copyright.


A Data Commons For Food Security, Jeremiah Baarbé, Meghan Blom, Jeremy De Beer Dec 2016

A Data Commons For Food Security, Jeremiah Baarbé, Meghan Blom, Jeremy De Beer

Jeremy de Beer

We propose a ‘data commons’, formed through a licensing model that allows farmers to benefit from the datasets to which they contribute. Agricultural data is globally recognized for its importance in addressing food insecurity. This data is generated and used by a value chain of contributors, collectors, and consumers. Our licensing model addresses the crisis caused by a lack of data ownership rights for contributor farmers. Using the IAD framework we consider five case studies. These studies explore how John Deere, Plantwise, and Abalobi license data collection and how Creative Commons and the Open Data Commons license data distribution. Supported ...


Click Here To Agree- Managing Intellectual Property When Crowdsourcing Solutions, Jeremy De Beer, Ian Mccarthy, Adam Soliman, Emily Treen Dec 2016

Click Here To Agree- Managing Intellectual Property When Crowdsourcing Solutions, Jeremy De Beer, Ian Mccarthy, Adam Soliman, Emily Treen

Jeremy de Beer

Tapping into the creativity of a crowd can provide a highly efficient and effective means of acquiring ideas, work, and content to solve problems. But crowdsourcing solutions can also come with risks, including the legal risks associated with intellectual property. Therefore, we raise and address a two-part question: Why — and how — should organizations deal with intellectual property issues when engaging in the crowdsourcing of solutions? The answers lie in understanding the approaches for acquiring sufficient intellectual property from a crowd and limiting the risks of using that intellectual property. Herein, we discuss the hazards of not considering these legal issues ...