Intellectual Property Law Commons^™

Cerveza Cristal: A Copyright Loophole In A Beer Ad From 2003?, Sebastian Saavedra Irarrazaball

Cardozo Arts & Entertainment Law Journal Blog

The internet stumbled onto a ready-made meme last month in the form of 20-year-old beer commercials from South America1. Back in 2003, a Chilean advertising agency decided to elevate the art of product placement. Their canvas: a planned broadcast of the original trilogy of Star Wars during a primetime slot on the second most popular national channel. DVDs were in their commercial infancy in the country, VHS tapes were available, but not everywhere. There was a guaranteed, captive audience.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 30, 2024. The original post …

Fanfiction Flicks: Dissecting The Expected Legal Ramifications Of Harry Styles Homages On The Big Screen, Aydan Urias

Cardozo Arts & Entertainment Law Journal Blog

When the trailer for the highly anticipated Amazon Prime film The Idea of You debuted on YouTube in March 2024, viewers were captivated by the striking resemblance between the main character, Hayes Campbell, portrayed by Nicholas Galitzine, and the renowned former British One Direction member, Harry Styles. The film is based on the novel The Idea of You by author Robinne Lee. In a 2017 interview, Lee admitted to beginning the novel after seeing a YouTube video of the boy band One Direction and stated that she was specifically inspired by the personal life of Harry Styles.

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Tennessee Legislature Declares That The Human Voice Will Remain ‘The King’ In Nashville, Ryan Bickett

Cardozo Arts & Entertainment Law Journal Blog

Last month, Tennessee broke legal ground by passing the Ensuring Likeness Voice and Image Security, or “ELVIS,” Act. This law amends the state’s existing publicity laws to include protections for an individual’s voice in general as well as specifically against artificial intelligence (AI) impersonation. The statute defines a voice as “a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.” This standard shows a statutory expansion of legal protections for voices that blossomed with major cases in …

The Impact Of The “Misclassification” Of Employees As Independent Contractors On New York City’S Performing Arts Institutions And Gig-Based Performers, Katie Sigety

Cardozo Arts & Entertainment Law Journal Blog

During the height of the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) made it possible for independent contractors to access unemployment benefits, or “Pandemic Unemployment Assistance” (“PUA”), for the first time. This created a new awareness for how many gig-based performing artists were considered independent contractors. In the wake of the PUA program expiration in 2021, the DOL identified 425,000 fraudulent unemployment benefit claims filed, totaling $5.5 billion, during the COVID-19 pandemic. The fraudulent claims were filed using the real identities of individuals who were not employed, which were likely stolen during previous data breaches …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Faculty Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Shades Of Green: Navigating The Legality Of Environmental Marketing, David Zack

Cardozo Arts & Entertainment Law Journal Blog

A majority of Americans are concerned about climate change.1 This fear seems to be a driver of consumer spending decisions. According to a study by PDI Technologies, 68% of Americans are willing to spend more on environmentally sustainable products than their competitors that are not sustainable.2 This number has steadily grown over the past two years.3 This figure is even greater for key marketing demographics. 77% of Gen Z, 72% of millennials, and 76% of parents would be willing to do so. Because of this, companies have increasingly sought to position and market themselves as green companies.

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Can You Smell A Lawsuit Cooking? Possible Risks With The Rock’S Trademarks, Cameron Brody

Cardozo Arts & Entertainment Law Journal Blog

Dwayne Johnson is one of the most recognizable and successful working actors on the planet. For an entire generation, he is synonymous with smash-hit franchises such as Baywatch, Tooth Fairy, and Jungle Cruise. In fact, between 2019 and 2021, he was the highest-paid actor in Hollywood and raked in $270,000,000 in 2022 alone. Further, he is a co-founder of Teremana Tequila, which holds an estimated value of $3.5 billion, putting him on track alongside George Clooney and Ryan Reynolds as success stories in the celebrity alcohol market. His most recent endeavor, however, may put him on track towards a series …

Toward The Substitutionary Promise Of Ptab Review, Saurabh Vishnubhakat

Faculty Online Publications

Although administrative patent trial proceedings under the Leahy-Smith America Invents Act (AIA) have done much to improve the efficient reevaluation of patent validity, significant problems remain. Divergent burdens of proof among the United States Patent and Trademark Office (USPTO) and Patent Trial and Appeal Board (PTAB) and the U.S. district courts allow the agency to disregard prior judicial decisions about patent validity and for patents to be relitigated even after surviving judicial review. Divergent claim construction standards allow for similar arbitrage, and, although the USPTO has now aligned its claim construction approach with that of the courts through rulemaking, that …

Unmasking Deepfakes: Navigating The Copyright Quagmire, Ben Gross

Cardozo Arts & Entertainment Law Journal Blog

In the ever-evolving landscape of digital technology, the emergence of deepfake technology has raised profound concerns, especially in the realm of copyright law. Deepfakes, sophisticated synthetic media created using artificial intelligence, can manipulate or replace existing content, often blurring the lines between reality and fiction.1 As these digital creations become more prevalent, questions surrounding their implications under copyright law have taken center stage.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 5, 2024. The original post can be accessed via the Archived Link button above.

Downstreaming, Rachel Landy

Faculty Articles

Spotify and its competitors all offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By “braiding” certain formal contracting practices with informal enforcement norms, parties develop a frame-work that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, it demonstrates just how industry forces can, and do, overcome braiding’s positive slant. In that industry, the major record labels (Universal, Warner, and Sony) weaponize braiding …

Key Players: How Ip Lawyers Drive Successful M&A Integration, Eddie Halwani

Cardozo Arts & Entertainment Law Journal Blog

In the dynamic world of mergers and acquisitions (“M&A”), intellectual property (“IP”) lawyers have proven essential in navigating the web of IP rights and obligations throughout the transaction process. As companies increasingly look to acquire new strategic levers, the expertise of these specialized lawyers has become invaluable, helping to ensure the validity of intangible assets and mitigating potential risks involved.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 28, 2024. The original post can be accessed via the Archived Link button above.

From Punchlines To Pesto To Prada: Exploring Intellectual Property’S Negative Space, Michael Ecker

Cardozo Arts & Entertainment Law Journal Blog

Intellectual property (“IP”) law serves as the protective cornerstone for the creative industries—an especially important one at a time when unprecedented global connectivity links so many and in the process, so greatly heightens the potential for improper takings. Yet, a growing body of legal scholarship delves into a fascinating counterpoint: the “negative space” of IP. As Kal Raustiala and Christopher Sprigman posit in their Article, The Piracy Paradox, these creative endeavors “remain creative (and consequently do not require protection) precisely because they exhibit positionality sufficiently strong that it provokes a constant stream of new innovation.” This space encompasses creative fields …

Copyright Law And Ai, Cardozo Intellectual Property Law Society (Ipls), Cardozo Art Law Society

Flyers 2023-2024

No abstract provided.

Study, Chill, Stream Lofi, And Repeat: From A Passion Project To A Recent Target Of Large Corporate Music Publishers, Lauren Woods

Cardozo Arts & Entertainment Law Journal Blog

Ask yourself: what does the perfect workspace look and feel like? The answer varies from person to person. Some people prefer to work in crowded cafes, while others need complete silence. The concern became even more relevant during the height of the coronavirus pandemic, when many individuals were working remotely. As it does with many things, the internet came to our rescue and provided us with creative ways to yield efficiency. To spice up your WFH office arrangement, it provides different sources of background music that can help tune out distractions, regulate stress, increase productivity, and even improve sleep. YouTube, …

Is The Future Private? A Look Into Litigation Under Illinois’S “Bipa” Law, Paige Green

Cardozo Arts & Entertainment Law Journal Blog

At Meta’s 2019 “F8” virtual development conference, Mark Zuckerberg stood in front of a presentation screen displaying the words, “the future is private.” Zuckerberg’s talking points centered on “build[ing] a more privacy-focused social media platform.” Increasing Meta’s focus on privacy, apparently, does not include ensuring compliance with Illinois’s Biometric Information Privacy Act (“BIPA”). While not exactly the first of its kind, a recent class action lawsuit against Meta alleges the company violated Illinois’s BIPA law by capturing, retaining, and profiting from the use of plaintiff’s “voiceprint” without disclosing or creating a meaningful retention policy for doing so.

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International Fans Crafting Fan Merchandise For U.S. Musicians: A Trademark Infringement Danger Zone, Gabriella Fernandez

Cardozo Arts & Entertainment Law Journal Blog

In the early 2010s, the term “fandom” gained popularity among teenagers who were deeply devoted to their favorite musicians. The term “fandom” refers to communities of fans who come together through social media to express their shared admiration for a particular artist. When individuals unite to celebrate their mutual love for a musician, a genuine sense of connection and community is established. Through discussions about their shared passion for the artist, they often discover common interests and experiences that go beyond the music, fostering authentic friendships.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website …

Tik Tok And Universal Music Group’S Licensing Battle, Sara Casey

Cardozo Arts & Entertainment Law Journal Blog

A month-long standoff between Universal Music Group (“UMG”) and TikTok persists after combative licensing negotiations have continuously failed. This stalemate led to the removal of UMG’s music from the platform on February 1, 2024, silencing thousands of videos featuring UMG’s music and, in turn, drastically reducing content creators’ music options for new clips. The effects of the broken partnership have materialized, but the extent of the fallout is unclear, as some videos using UMG recordings appeared to be unaffected, while others, such as those featuring tracks by UMG artists Taylor Swift and Drake, have been silenced, accompanied by the statement …

Cardozo Aelj Author Interview Series: Aman K. Gebru, Ivana Petani

Cardozo Arts & Entertainment Law Journal Blog

Aman K. Gebru is an Assistant Professor at the University of Houston Law Center, where he teaches courses on contracts and intellectual property law. Professor Gebru’s research examines issues at the intersection of intellectual property law, innovation policy, and knowledge governance from domestic and global perspectives. His recent projects examine how intellectual property laws deal with collectively developed creative expression, such as memes, dance crazes, hackathons, and indigenous (traditional) expression.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 14, 2024. The original post can be accessed via the Archived Link button above.

Loyola Patent Program Info Session, Cardozo Intellectual Property Law Society (Ipls), Cardozo Women In Tech Law

Flyers 2023-2024

No abstract provided.

Intellectual Property & Information Law Program Ip+Il Program's Distinguished Speaker Series: Paul Levitz, Cardozo Intellectual Property & Information Law Program

Flyers 2023-2024

No abstract provided.

Cardozo Aelj Author Interview Series: Matthew J. Mitten, Ivana Petani

Cardozo Arts & Entertainment Law Journal Blog

Matthew J. Mitten is the Professor of Law and Executive Director of the National Sports Law Institute at Marquette University Law School. Professor Mitten is a leading sports law scholar and has testified before a U.S. Congressional joint subcommittee, the Senate Judiciary Committee, and the Senate Commerce Committee, as well as the Knight Commission on Intercollegiate Athletics, on college sports law issues.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 27, 2024. The original post can be accessed via the Archived Link button above.

Cardozo Aelj’S Spring 2024 Symposium Explores The Implications Of The Warhol And Bad Spaniels Decisions On Copyright And Trademark Law, Cardozo Arts & Entertainment Law Journal

Cardozo Arts & Entertainment Law Journal Blog

Thank you to everyone who attended and participated in the Cardozo Arts & Entertainment Law Journal’s spring symposium, “Barking Up the Wrong Tree: An Exploration of Intellectual Property Law Protections Following Bad Spaniels and Andy Warhol.” AELJ is proud to have hosted such a successful event, highlighting a range of thoughtful and engaging scholarship.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 25, 2024. The original post can be accessed via the Archived Link button above.

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Faculty Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Faculty Articles

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive, and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Update On Patent-Related Cases In Computers And Electronics, Karishma Jiva Cartwright, Timothy T. Hsieh, Saurabh Vishnubhakat

Faculty Articles

This paper provides an overview of patent cases relating to computer and electronics technology that were not taken up by the Supreme Court during the October 2022 term. As of this writing, the Supreme Court has not granted certiorari in any patent-related cases for its October 2021 Term. The Court has, however, called for the views of the Solictor General in four cases, indicating higher interest and raising the possibility that one or more of these cases may appear on the Court's merits docket for the October 2022 Term. Additionally, though the Court denied certiorari in Baxter v. Becton, Dickinson, …

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Faculty Articles

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …

The Structure Of Secondary Copyright Liability, Felix T. Wu

Faculty Articles

Secondary copyright liability and secondary patent liability largely parallel each other. And yet, secondary copyright cases are often quite different from secondary patent cases. Whereas most secondary patent infringers act in a way that targets a particular patent or group of related patents, secondary copyright infringement mostly arises in the context of technologies or services that work across all copyrighted works. Secondary copyright liability raises issues of platform liability in ways that secondary patent liability usually does not.

The current structure and framing of secondary copyright liability inadequately account for this distinction. The result is that secondary copyright liability tends …

Signs Of Life: The Current State Of Generative Content And Copyright Protection, Ryan Bickett

Cardozo Arts & Entertainment Law Journal Blog

With the recent rise in Artificial Intelligence (“AI”) and its broadening use by the public, questions have arisen regarding the applicability of copyright law over both the content it sources and creates. While the answers remain unclear as this technology rapidly updates, there have been recent legal developments which will shape how we deal with this content.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via the Archived Link button above.

The Economics Of Medical Patents And The U.S. Government’S Role In Drug Price Negotiations, Eddie Halwani

Cardozo Arts & Entertainment Law Journal Blog

The U.S. government’s recent but unusual push to negotiate drug prices has struck a chord with many Americans, with polls showing a significant, bipartisan majority favoring the action.This action presents an opportunity to appreciate medical patents’ role in spurring innovation forward. Amid changing policies, medical patents shape the accessibility and affordability of care through their impact on drug pricing. Drug prices in the United States are notably high—about 2.4 times those in other developed countries.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via …

The Aftermath Of Murphy V. Ncaa: State And Congressional Reactions To Leaving Sports Gambling Regulation To The States, Ethan Mordekhai

Cardozo Arts & Entertainment Law Journal Blog

In 2018, the Supreme Court ruled in Murphy v. NCAA that the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”) violated the anti-commandeering rule and was therefore unconstitutional. PAPSA had effectively barred states from authorizing sports gambling. The act did not make sports gambling a federal crime, however it did allow professional sports organizations to bring civil actions to enjoin violations. Thus, after the New Jersey legislature authorized sports gambling in 2012, the NCAA brought a federal action to enjoin the law on the ground that it violated PAPSA. The case made its way to the Supreme Court, and …