Intellectual Property Law Commons^™

Privatizing Copyright, Xiyin Tang

Michigan Law Review

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the internet, it is, in fact, rarely used by the largest internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech …

Enabling Science Fiction, Camilla A. Hrdy, Daniel H. Brean

Michigan Technology Law Review

Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor must describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair scientists, that are not suitable for the patent system.

This Article argues that, in fact, the literary genre of science fiction …

Why The Copyright Act Expressly Preempts State-Level Public Performance Rights In Pre-1972 Recordings, James Fahringer

Michigan Telecommunications & Technology Law Review

Over the past several years, two former bandmates in the 1960s rock group, The Turtles, have initiated several lawsuits against the popular music streaming services, Pandora and Sirius XM, arguing that the band owns common law copyrights in the sound recordings of its songs, and that these state-level copyrights grant the band an exclusive public performance right in its sound recordings. If accepted, this argument has the potential to significantly distort federal copyright policy because states would not be constrained by any of the balancing features of the Copyright Act, including Digital Millennium Copyright Act (DMCA) safe harbors for Internet …

Intellectual Property In Experience, Madhavi Sunder

Michigan Law Review

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that give fantasy owners …

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 when these cases do …

Sherlock Holmes And The Case Of The Lucrative Fandom: Recognizing The Economic Power Of Fanworks And Reimagining Fair Use In Copyright, Stacey M. Lantagne

Michigan Telecommunications & Technology Law Review

Fan culture, in the form of fan-created works like fanfiction, fanart, and fanvids, is often associated with the Internet. However, fandom has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom long before the age of the Internet. Despite their persistence, fanworks have long existed in a gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. Although these analyses pay lip service to a requirement of aesthetic neutrality, they tend to become bogged down by unarticulated artistic judgments that hinge on …

How Not To Apply The Rule Of Reason: The O’Bannon Case, Michael A. Carrier

Michigan Law Review First Impressions

The case of O’Bannon v. NCAA has received significant attention. On behalf of a class of student-athletes, former college basketball star Ed O’Bannon sued the NCAA, challenging rules that prohibited payment for the use of names, images, and likenesses (NILs) in videogames, live game telecasts, and other footage. A Ninth Circuit panel, in a 2-1 decision, found that this restraint had anticompetitive effects and procompetitive justifications. And it considered “less restrictive alternatives,” upholding payment for incidental educational expenses beyond tuition and fees, room and board, and required books, but rejecting a deferred $5,000 payment for NILs. Straddling the intersection of …

Getting Down To (Tattoo) Business: Copyright Norms And Speech Protections For Tattooing, Alexa L. Nickow

Michigan Telecommunications & Technology Law Review

What level of First Amendment protection should we afford tattooing? General public consensus formerly condemned tattoos as barbaric, but the increasingly diverse clientele of tattoo shops suggests that tattoos have become more mainstream. However, the law has struggled to adjust. The recent proliferation of municipal near-bans on tattooing has brought tattooing to the forefront of First Amendment debates, with cases such as Anderson and Coleman leading the way toward recognizing tattooing as pure speech. Tensions between formal and informal copyright norms in the tattoo industry further highlight the collaborative and expressive nature of the artist-customer relationship and its resulting products, …

Private Copyright Reform, Kristelia A. García

Michigan Telecommunications & Technology Law Review

The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed “private copyright reform,” presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can …

Public Performance Rights In The Digital Age: Fixing The Licensing Problem, G. S. Hans

Michigan Law Review First Impressions

Recent technological advances have allowed consumers to reinvent the mixtape. Instead of being confined to two sides of an audiocassette, people can now create playlists that stretch for hours and days on their computers, tablets, mobile devices, and MP3 players. This, in turn, has affected how people consume and listen to music, both in isolation and in groups. As individuals and business owners in the United States use devices to store, organize, and listen to music, they inevitably run up against the boundaries of U.S. copyright law. In general, these laws affect businesses more often than private individuals, who can …

Fighting The First Sale Doctrine: Strategies For A Struggling Film Industry, Sage Vanden Heuvel

Michigan Telecommunications & Technology Law Review

The first sale doctrine, codified at 17 U.S.C. § 109, grants the owners of a copy of a copyrighted work the right to sell, rent, or lease that copy without permission from the copyright owner. This doctrine, first endorsed by the Supreme Court in Bobbs-Merrill Co. v. Straus, was established at a time when the owner of a good necessarily had to forego possession in order to sell or lease the item to another.[...] The changes in technology and industry over the past two decades threaten to upend this balance. In today's digital world, an owner of a copy of …

Using Public Disclosure As The Vesting Point For Moral Rights Under The Visual Artists Rights Act, Elizabeth M. Bock

Michigan Law Review

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Bichel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents …

The Super Brawl: The History And Future Of The Sound Recording Performance Right, Brian Day

Michigan Telecommunications & Technology Law Review

On February 4, 2009, Senator Patrick Leahy introduced the Performance Rights Act ("PRA") to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution--and more than ten years after gaining a limited digital performance right--legislation is pending that would once again expand the scope of sound recording copyright to encompass terrestrial radio broadcasts. Historically, such broadcasts have been exempt from sound recording performance royalties.[...] Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this Note suggests that sound recording …

Royalty Rate-Setting For Webcasters: A Royal(Ty) Mess, Amy Duvall

Michigan Telecommunications & Technology Law Review

The Internet is a haven for free expression. Not only are content-based restrictions disfavored, but "[the internet] provides relatively unlimited, low-cost capacity for communication of all kinds." Almost half of all Americans have listened to music online, whether rebroadcasts of terrestrial radio or to find niche music that terrestrial radio simply does not play, and 13 percent tune in regularly. Webcasters provide a unique outlet for new artists; however, if royalty rates are set too high for all but the largest webcasters to stay in business, the variety of music available will be severely restricted. Musical diversity stimulates the generation …

Three Reactions To Mgm V. Grokster, Pamela Samuelson

Michigan Telecommunications & Technology Law Review

It was prescient of the Michigan Telecommunications and Technology Law Review to have organized a conference to discuss the Supreme Court's decision in Metro-Goldwyn-Mayer, Inc. v. Grokster, Inc. As the articles in this issue reveal, commentators have had somewhat mixed reactions to the Grokster decision. Perhaps I am the most mixed (or mixed up) about Grokster among its commentators, for I have had not just one but three reactions to the Grokster decision. My first reaction was to question whether MGM and its co-plaintiffs really won the Grokster case, or at least won it in the way they had hoped. …

Black Musical Traditions And Copyright Law: Historical Tensions, Candace G. Hines

Michigan Journal of Race and Law

This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence …

Musical Musings: The Case For Rethinking Music Copyright Protection, J. Michael Keyes

Michigan Telecommunications & Technology Law Review

This Article focuses on the topic of music copyright, but addresses this legal issue from a different vantage point than that of the industry insiders, insightful scholars, and policy makers that have weighed in on the debate. Instead of focusing on the issues regarding wholesale digital reproduction and dissemination of music protected by copyright, this Article focuses on music copyright infringement when the claim is that a given piece of music is "substantially similar" to another piece of music protected by copyright. Part I of this Article touches on the history of the music industry and copyright in this country, …

Copyright Infringement, Sex Trafficking, And Defamation In The Fictional Life Of A Geisha, Susan Tiefenbrun

Michigan Journal of Gender & Law

Memoirs of a Geisha has sold and made millions for Arthur Golden since 1997. This is his first novel, and it has earned him worldwide acclaim. A feature film version directed by Steven Spielberg is in the works. The book is translated into more than twenty languages. This article uses the book and the legal controversy that ensued after its publication to ask, and hopefully answer, two questions: First, is the geisha tradition as described by Golden in his fictional biography a variant of sex trafficking and sexual slavery which, despite possible cultural justifications, should be abolished by law? Second, …

Quibbles'n Bits: Making A Digital First Sale Doctrine Feasible, Victor F. Calaba

Michigan Telecommunications & Technology Law Review

Whereas the first sale doctrine historically permitted the transfer and resale of copyrighted works, license agreements used by software companies and the DMCA's strict rules prohibiting tampering with access control devices frustrate exercise of the first sale doctrine with respect to many forms of digital works[...] This article explores the first sale doctrine as it pertains to digital works and proposes ways to make a digital first sale doctrine feasible. Part II describes the first sale doctrine as it has traditionally been applied to non-digital works. Part III discusses modern technology's impact on the distribution and use of copyrighted material. …

Profits In Cyberspace: Should Newspaper And Magazine Publishers Pay Freelance Writers For Digital Content?, Rod Dixon Esq.

Michigan Telecommunications & Technology Law Review

It is remarkable how fast recent trends have driven an increasing number of publishers of magazines, newspapers, and other similar works to port the print version of their works to digital and electronic format in the form of online computer databases and multimedia CDROM technologies. Online computer databases and CD-ROM media can be exceptionally profitable ventures for publishers who convert a preexisting print work into a digital product. However, publishers' profits from digital media may be impaired if there is a question as to whether the publisher has satisfactorily secured the copyright to the material making up the digital media. …

Authors' Moral Rights In Non-European Nations: International Agreements, Economics, Mannu Bhandari, And The Dead Sea Scrolls, Jeffrey M. Dine

Michigan Journal of International Law

This note undertakes to examine authors' moral rights in non-European countries. Section I will provide a brief comparative description of moral rights. Section II will discuss the treatment of moral rights in the Berne convention and the TRIPS agreement. Section III will then examine moral rights law in India and Israel, and two important cases from these nations, Mannu Bhandari v. Kala Vikas Pictures from India, and Qimron v. Shanks, from Israel. Mannu Bhandari deals with an author's moral right in the film adaptation of her work, Qimron with the moral rights of a scholar in the reconstruction of one …

Copyright Pre-Emption And Character Values: The Paladin Case As An Extension Of Sears And Compco, Michigan Law Review

Michigan Law Review

Much of the confusion over copyright pre-emption that has followed in the wake of Sears and Compco may be due to a fundamental difference between the present patent and copyright acts. Unlike the patent law that was at issue in Sears and Compco, the federal Copyright Act provides that the states may in limited circumstances protect literary property through the doctrine of common-law copyright. Under section 2 of the Act, a state may prevent copying of a work so long as it remains "unpublished." An alternative ground of decision in Paladin was that, regardless of preemption under Sears and …

Television Sponsor And Advertising Agency Held Vicariously Liable For Copyright Infringement--Davis V. E.I. Dupont De Nemours & Co., Michigan Law Review

Michigan Law Review

DuPont sponsored a dramatization of Edith Wharton's novel Ethan Frome presented by the CBS television network. Petitioner claimed an infringement of his earlier copyrighted dramatization of the same novel and sought a declaration of liability against CBS, the producer of the program, DuPont, and its advertising agency, Batten, Barton, Durstine & Osborn, Inc. (BBDO). Although DuPont and BBDO were notified before the performance of the possibility of copyright infringement liability and could have stopped the producers from using petitioner's play, they made no attempt to interfere. In petitioner's action in the federal district court, DuPont and BBDO contended that they …

Literary And Artistic Property -- Common-Law Copyright-- Filing Of Architectural Plans In A Public Office As Publication, Judd L. Bacon S.Ed.

Michigan Law Review

Plaintiff home designer prepared plans for a client and filed a copy in a county office as required by ordinance in order to obtain a building permit. Defendant copied and used these plans without plaintiff's consent. In an action under a state statute codifying the common-law right of designers to the exclusive ownership of their unpublished designs, the lower court held for defendant, finding plaintiff's copyright to have been destroyed by publication. On appeal, held, reversed. The filing of architectural plans in a public office in order to secure a building permit does not constitute a publication of them …

Copryright - Infringement - Parody Of Dramatic Production Held Not To Be Fair Use, William J. Wise S.Ed.

Michigan Law Review

Prior to December 1938, Patrick Hamilton wrote an original play entitled "Gaslight" which subsequently was published, performed and protected by copyright in both England and the United States. Loew's acquired exclusive motion picture rights to the play on October 7, 1942, and produced an original feature-length motion picture photoplay of the drama, also entitled "Gaslight." In 1945 Jack Benny sought and received permission to produce a 15-minute parody of the motion picture for his radio program. In 1953, without securing Loew's permission, Benny produced a 15-minute filmed parody of the motion picture for his television program. It was entitled "Autolight" …

Borderland - Where Copyright And Design Patent Meet, Richard W. Pogue

Michigan Law Review

Copyright law and design patent law contemplate basically different objects of protection. Yet at the outer fringes of these types of protection certain concepts overlap to form a rather undefined borderland in which it is difficult to say what law is applicable-copyright law, patent law, neither, or both. It is the purpose of this paper to explore this borderland area in the light of traditional copyright and patent law principles, with attention given to policy considerations involved, and to offer suggestions toward drawing a sharper boundary between the two.

Note And Comment, Gordon W. Stoner, Sigmund W. David, Victor R. Jose Jr.

Michigan Law Review

The Law School; Pleading Estoppel; Libels on Person and on Property; The Conflict Between a Patentee's Right to Monopoly and a State Anti-Monopoly Statute

Law Of Dramatic Copyright. Ii., Edward S. Rogers

Michigan Law Review

V. Dramatization of novels. - Continued. - Fortunately, we, in the United States, have had very little trouble in regard to the dramatization of novels. The copyright statute provides that the author of a copyrighted book may reserve the right to dramatize and translate his own work. There is no question, however, that but for this act which creates the additional right of dramatization and translation, the English rule would be in force in this country. The exclusive right of translating "Uncle Tom's Cabin" was denied Mrs. Stowe in Stowe v. Thomas, "decided before the enactment of the statute permitting …

The Law Of Dramatic Copyright, Edward S. Rogers

Michigan Law Review

Literary Property at Common Law.--There have been few legal questions so generally and so fully discussed-as that relating to the property of authors in their. writings. Up to 1769, it was generally conceded that authors enjoyed, by virtue of the common law, a perpetual copyright, and copyrights were sold and made the basis of family settlements. In 1769, the great case of Millar v. Taylor, was decided. An action had been brought in 1766 to recover ior the piracy of "Thomson's Seasons," and it was held by a majority of the judges, Lord Mansfield, Mr. Justice Aston and Mr. Justice …