Law Commons^™

One Test To Rule Them All: Retiring The Dual Standard For Fictional Character Copyrightability In The Ninth Circuit, Kiersten Daly

St. John's Law Review

(Excerpt)

From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value …

Evaluating Copyright Protection In The Data-Driven Era: Centering On Motion Picture's Past And Future, Chieh-Li Pai

Maurer Theses and Dissertations

Since the 1910s, Hollywood has measured audience preferences with rough industry-created methods. In the 1940s, scientific audience research led by George Gallup started to conduct film audience surveys with traditional statistical and psychological methods. However, the quantity, quality, and speed were limited. Things dramatically changed in the internet age. The prevalence of digital data increases the instantaneousness, convenience, width, and depth of collecting audience and content data. Advanced data and AI technologies have also allowed machines to provide filmmakers with ideas or even make human-like expressions. This brings new copyright challenges in the data-driven era.

Massive amounts of text and …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

The Library & Generative Ai, Nat Gustafson-Sundell, Mark Mccullough

Library Services Publications

A demonstration of several AI tools, including ChatGPT, ChatPDF, Consensus, and more. The focus of the session is on potential student uses of the tools and related library initiatives, so we address the limits of ChatGPT as an information source. Librarians can help students learn how to use these tools responsibly and provide leadership on campus as AI is integrated into assignments.

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, …

Protection And Prevention: The Shortcomings Of U.S. Copyright Law In Combatting Cultural Appropriation In The Fashion Industry, Luke E. Steffe

IP Theory

American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their …

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …

Conquering Copyright: Why Copyright Needs To Be Modernized Based On Practical Illustrations Of Inconsistent Copyright Precedent, Saipranay Vellala

Akron Law Review

Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule, mischaracterize the crux of the copyright infringement inquiry and complicate the infringement inquiry for judges and juries—adversely affecting authors. Using indie musicians as an exemplary embodiment of modern copyright jurisprudence’s adverse effects, indie musicians who merely have access to a more famous musician’s music may …

Problems In The Copyright Industry: Making The Case For A Corrected Case Act, Megan Grantham

Et Cetera

In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act, which established a small claims court system within the United States Copyright Office, called the Copyright Claims Board. This new board hears cases of copyright violations involving damages of $30,000 or less. President Donald Trump signed the bill into law on December 27, 2020, and the board officially began hearing claims in June 2022. This was meant to benefit smaller creators who do not have the means to pursue their copyright claims in costly federal court. While small or independent creators should indeed have access to a means of …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Journal of Intellectual Property Law

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Journal of Intellectual Property Law

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

William & Mary Law Review

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

The Inherent Monetary Incentive Of Intellectual Property Rights And The Failure Of Intellectual Property Waivers To Recognize This Motive, Ellaheh D. Sims

Barry Law Review

No abstract provided.

Measuring Change In Copyright Exceptions For Text And Data Mining, Michael Palmedo, Momina Imran, Miguel Alvarenga, Luca Schirru, Duc Le

Joint PIJIP/TLS Research Paper Series

Copyright exceptions for researchers are under debate at the World Intellectual Property Organization and within domestic governments, yet empirical research in this area is rare. In this early working paper, we aim to add to this nascent body of research. We expand PIJIP’s previous review and classification of copyright exceptions in WIPO Members’ laws by tracing changes in the laws over time. We find that most countries have copyright exceptions allowing some unauthorized uses for research purposes. However, most countries’ exceptions restrict some mix of the users, uses, or types of works that are allowed. High-income countries tend to be …

Comment: Copyright Registration: Fourth Estate Implications For Photographers In The Modern World, Izabella Kanoza

Northern Illinois University Law Review

In 2019, the Supreme Court has settled a long-standing split issue among the Circuit Courts. The issue revolved around the interpretation of the word “registration” with the Copyright Office in order for a copyright owner to be able to initiate a copyright infringement lawsuit. However, the now settled precedent has presented challenges to the ever-evolving internet world and those who use it to create, advertise, and share their digital content. Digital photographers, specifically, have found this registration requirement inefficient when it comes to sharing their work on social media platforms, such as Instagram or Facebook, where copyright infringement in the …

Compliance Of National Tdm Rules With International Copyright Law: An Overrated Nonissue?, Martin Senftleben

Joint PIJIP/TLS Research Paper Series

Seeking to devise an adequate regulatory framework for text and data mining (TDM), countries around the globe have adopted different approaches. While considerable room for TDM can follow from the application of fair use provisions (US) and broad statutory exemptions (Japan), countries in the EU rely on a more restrictive regulation that is based on specific copyright exceptions. Surveying this spectrum of existing approaches, lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure …

The Perks Of Being Human, Max Stul Oppenheimer

Washington and Lee Law Review Online

The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. …

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 …

Confused About Copyright?, Sara Anne Hook

Graduate Scholarship and Professional Work

No abstract provided.

Jury-Related Errors In Copyright, Zahr K. Said

Indiana Law Journal

Copyright law is surprisingly hard. Copyright does not do what laypeople think it does, nor do its terms mean what laypeople expect. Copyright also possesses systemic indeterminacy about what it protects and the extent of that protection. For laypeople, copyright law is decidedly “user-unfriendly.” Nonetheless, copyright law reserves for lay jurors its most-litigated, most difficult, and most consequential question at trial: whether works are “substantially similar” and thus infringing. Many have criticized this allocation because in the context of copyright law, juries effectively have the power to expand or contract owners’ rights with little oversight or correction. But blaming the …

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 …

Korea’S 2011 Copyright Act Amendments And Innovation By Online Service Providers, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

In 2011, Korea amended its Copyright Act to comply with the U.S.-Korea Free Trade Agreement’s intellectual property chapter, which included an obligation to enact a safe harbor for secondary copyright infringement in the online environment. Safe harbors protect internet firms from legal liability when their users post infringing content online, on the condition that the firms maintain a system to efficiently remove infringing content when notified of the infringement by rightholders.

This paper tests whether the newly established safe harbors had an impact on innovation by Korean internet firms. I hypothesize that the amendments alleviated litigation risks faced by internet …

Transitional Justice, Truth, And Copyright: The Case Of Colombia, Marcela Palacio Puerta

Joint PIJIP/TLS Research Paper Series

The impact of copyright on various aspects of human life is becoming increasingly evident. This paper explores, for the first time in the literature, the relationship between copyright and the search for peace, with a focus on the transitional justice process in Colombia. Through a documentary research methodology, the study highlights the challenges posed by copyright laws that lack certainty in the application of exceptions and limitations to the digital world. Such challenges can difficulty a process that is inherently complex and holds great significance. Moreover, these laws also affect access to information, which is crucial in a context where …

Hachette, Controlled Digital Lending, And The Consequences Of Divorcing Law From Context, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

This article will look at the recent Hachette decision against the Internet Archive, analyzing how the court’s reliance on past authorities with insufficient context distorted their meanings. It will focus only on the controlled digital lending (CDL) aspect, not discussing the other claims in the suit or exploring the specific implementation of CDL by the Internet Archive (IA). Since CDL programs can vary widely, IA is better situated than others to identify missing context related to the analysis of the unique components of their efforts. And other libraries engaging in CDL should be able to easily see where their programs …

Discovering The Governing Forces Of Esports, An Intellectual Property Gold Mine, Dave Gravely

St. Mary's Law Journal

No abstract provided.

Harmonizing Music Theory And Music Law, Peter Nicolas

Articles

Those litigating and adjudicating music copyright disputes find themselves at the intersection of two complex fields: U.S. copyright law and music theory. While the attorneys and judges typically have at least some experience with the former, neither they nor the jurors typically have formal training in or experience with the latter. As a result, legal opinions purporting to incorporate musical concepts sometimes fail to do so accurately, resulting in decisions that are inconsistent with copyright law and policy.

This Article seeks to harmonize U.S. copyright law with relevant principles of music theory. It begins with an accessible primer on basic …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

Articles

Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

Government Role In Realising A ‘Right’ To Research In Africa, Chijioke Okorie

Joint PIJIP/TLS Research Paper Series

Development agendas and plans such as World Intellectual Property Organisation (WIPO) Development Agenda, African Union Agenda 2063, South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021 – 2025, etc. indicate the need for and benefits of research for development. Research as an activity is needed for countries to sharpen their innovative edge and contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions implementing a right to research in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of …