Intellectual Property Law Commons^™

Law And Authors: A Legal Handbook For Writers (Introduction), Jacqueline D. Lipton

Book Chapters

Drawing on a wealth of experience in legal scholarship and publishing, Professor Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, academic, journalism, freelance content development). This introductory chapter outlines the key legal and business issues authors are likely to face during the course of their careers, and emphasizes that most legal problems have solutions so law should never be an excuse to avoid writing something that an author feels strongly about creating. The larger work draws from case studies and hypothetical examples to address issues of copyright …

Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy

Faculty Publications

This brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court.

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

Articles

2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …

Artistic Control After Death, Eva Subotnik

Faculty Publications

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of …

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.

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Law Faculty Scholarship

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Are We Serious About Performers' Rights?, Mary Lafrance

Scholarly Works

Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …

Foreword: On Publishing Anonymously, Anthony C. Infanti

Articles

In this foreword to the fall 2010 issue of the Pittsburgh Tax Review, I explain the troubling set of circumstances that led to our decision to publish one of the articles anonymously. All of the articles in this issue share a focus on suggestions for state and local tax reform in Pennsylvania. The circumstances surrounding the decision to publish this one article anonymously raise a host of questions regarding the extent to which tax professionals are free to make suggestions for tax reform without being subject to employer censorship.

Current Patent Laws Cannot Claim The Backing Of Human Rights - 2008, Wendy J. Gordon

Scholarship Chronologically

The majority of the world's countries (one exception being the United States) have undertaken a commitment at the level of human rights to protect the interests of persons who author 'scientific ... production[s]'. This commitment is embodied in the International Covenant on Economic, Social and Cultural Rights (ICESCR), which recognizes in Article 15.1.(c) the rights of everyone 'to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.'

Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford

Faculty Publications

This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and …

Authorship And Termination Rights In Sound Recordings, Mary Lafrance

Scholarly Works

In late 1999, Congress amended the definition of "works made for hire" in § 101 of the Copyright Act to make explicit its intent to include sound recordings as a category of works eligible for this status. The amendment was repealed with retroactive effect less than a year later. All this happened—pardon the expression—in record time.

This odd course of events was precipitated by a request from the record industry, represented by the Recording Industry Association of America ("RIAA"), which persuaded Congress, shortly before passage of the Intellectual Property and Omnibus Communications Reform Act of 1999, to add a "technical …

Authorship, Dominance, And The Captive Collaborator: Preserving The Rights Of Joint Authors, Mary Lafrance

Scholarly Works

For copyright purposes, determining whether a work has a single author or joint authors is important for a variety of reasons. Perhaps the most significant legal consequence of joint authorship is joint ownership, under which the authors enjoy equal and undivided ownership of the copyright, allowing each to exploit the work freely, subject to a duty to account to the others for a ratable share of the exploitation profits. Absent an agreement to the contrary, each author of a joint work has an equal claim to those profits and an equal right to exploit the work, even if the authors' …

Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford

Faculty Publications

As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …

Intellectual Property In The Era Of The Creative Computer Program, Ralph D. Clifford

Faculty Publications

Computer scientists, using artificial intelligence techniques such as neural networks, are enabling computers to independently create works that appear to qualify for federal intellectual property protection. In at least one case, the creator of this kind of program has registered its output, a series of musical compositions, under his name as author with United States Copyright Office. Whether the output of the computer satisfies the statutory and constitutional requisites for protection is questionable, however. The author of this Article argues that the output of an autonomously creative computer program cannot be protected under the current copyright and patent laws. Further, …