Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Entertainment, Arts, and Sports Law (20)
- Internet Law (19)
- Science and Technology Law (19)
- Legislation (16)
- International Law (15)
-
- Social and Behavioral Sciences (12)
- Computer Law (10)
- Library and Information Science (8)
- Comparative and Foreign Law (7)
- Contracts (7)
- Consumer Protection Law (6)
- Law and Economics (6)
- Legal History (6)
- Public Law and Legal Theory (6)
- Courts (5)
- Arts and Humanities (4)
- Common Law (4)
- Constitutional Law (4)
- Law and Society (4)
- Legal Writing and Research (4)
- Scholarly Publishing (4)
- Supreme Court of the United States (4)
- European Law (3)
- Litigation (3)
- Communication (2)
- First Amendment (2)
- Indigenous, Indian, and Aboriginal Law (2)
- International Trade Law (2)
- Institution
-
- Columbia Law School (112)
- University of Michigan Law School (36)
- Boston University School of Law (12)
- Georgetown University Law Center (12)
- Maurer School of Law: Indiana University (8)
-
- University of Florida Levin College of Law (4)
- Santa Clara Law (3)
- University of Georgia School of Law (3)
- University of Massachusetts School of Law (3)
- University of Nebraska - Lincoln (3)
- University of New Hampshire (3)
- American University Washington College of Law (2)
- New York Law School (2)
- University of Colorado Law School (2)
- University of Kentucky (2)
- University of Pittsburgh School of Law (2)
- University of Washington School of Law (2)
- Barry University School of Law (1)
- California Western School of Law (1)
- City University of New York (CUNY) (1)
- Cleveland State University (1)
- Emory University School of Law (1)
- Florida A&M University College of Law (1)
- Golden Gate University School of Law (1)
- Northwestern Pritzker School of Law (1)
- Schulich School of Law, Dalhousie University (1)
- St. John's University School of Law (1)
- University of Baltimore Law (1)
- University of Miami Law School (1)
- University of Nebraska at Omaha (1)
- Publication Year
- Publication
-
- Faculty Scholarship (105)
- Articles (30)
- Kernochan Center for Law, Media, and the Arts (16)
- Georgetown Law Faculty Publications and Other Works (11)
- Articles by Maurer Faculty (8)
-
- Faculty Publications (7)
- Book Chapters (4)
- Law Librarian Scholarship (4)
- Scholarly Works (4)
- UF Law Faculty Publications (4)
- Law Faculty Scholarship (3)
- Publications (3)
- Scholarship Chronologically (3)
- Studio for Law and Culture (3)
- All Faculty Scholarship (2)
- Articles & Chapters (2)
- Articles in Law Reviews & Other Academic Journals (2)
- Copyright, Fair Use, Scholarly Communication, etc. (2)
- Other Publications (2)
- Articles, Book Chapters, & Popular Press (1)
- Communication Faculty Publications (1)
- Faculty Articles (1)
- Faculty Working Papers (1)
- Journal Publications (1)
- Law & Economics Working Papers (1)
- Law Faculty Publications (1)
- Law Faculty Reports and Comments (1)
- Law Faculty Scholarly Articles (1)
- Law Publications (1)
- Library Philosophy and Practice (e-journal) (1)
Articles 1 - 30 of 230
Full-Text Articles in Intellectual Property Law
Brief For Former And Current Law Library Directors, Professors, And Academics As Amici Curiae In Support Of Defendant-Appellant, Michelle M. Wu, Austin Martin Williams
Brief For Former And Current Law Library Directors, Professors, And Academics As Amici Curiae In Support Of Defendant-Appellant, Michelle M. Wu, Austin Martin Williams
Georgetown Law Faculty Publications and Other Works
The Copyright Act and libraries have a shared purpose: to spread knowledge to the public. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574 (1994) (noting the purpose of copyright is “[t]o promote the Progress of Science and useful Arts”). Libraries rely on balanced, careful application of the fair use balancing test to achieve that purpose. Amici respectfully submit that the District Court's decision collapsed copyright law's multi-part fair-use balancing test into a theory focused primarily on economics. Amici further respectfully submit that the District Court's fair-use analysis was broadly applied to Internet Archive's (IA) activities without distinguishing …
Copyright Fiduciaries: Problems And Solutions, Jessica Silbey
Copyright Fiduciaries: Problems And Solutions, Jessica Silbey
Faculty Scholarship
Andrew Gilden & Eva E. Subotnik, Copyright’s Capacity Gap, 57 U.C. Davis L. Rev. __ (forthcoming, 2023), available at SSRN (Aug. 9, 2023).
In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but …
Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley
Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley
Scholarly Works
Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the …
Harmonizing Music Theory And Music Law, Peter Nicolas
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 …
Learned Hand's Copyright Law, Shyamkrishna Balganesh
Learned Hand's Copyright Law, Shyamkrishna Balganesh
Faculty Scholarship
Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his …
Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell
Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …
Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee
Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee
Faculty Scholarship
Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …
Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech
Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech
Vanderbilt Law School Faculty Publications
Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be …
Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg
Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg
Faculty Scholarship
PD8 represents a great deal of labor, for which the Reporters deserve recognition. As detailed below, however, PD8’s occasional departures from or omissions of statutory text may not only be misleading or confusing, but – as has been the case with prior drafts – often have the result, if not the purpose, of whittling down the scope of copyright protection. In addition to identifying those instances and explaining their consequences, the following comments will suggest clarifications to some of the Comments and Illustrations.
Brief Of Michelle M. Wu As Amicus Curiae, Michelle M. Wu
Brief Of Michelle M. Wu As Amicus Curiae, Michelle M. Wu
Georgetown Law Faculty Publications and Other Works
Copyright is, above all else, a balancing act. This equity principle is especially important when technology collides with traditional copyright. Market effects are certainly an important feature of that balance but must be weighed against other equitable interests, regardless of their technological form. Literary criticism, second-hand sales, and library lending all have the potential to impact sales but nevertheless are considered social goods that copyright is intended to foster.
Controlled digital lending ("CDL") was established to innovate these core, well-established components of copyright law, allowing libraries to secure their collections and maintain their relevance as physical stewards of knowledge in …
An Initial Examination Of Computer Programs As Creative Works, Trina C. Kershaw, Ralph D. Clifford, Firas Khatib, Adnan El-Nasan
An Initial Examination Of Computer Programs As Creative Works, Trina C. Kershaw, Ralph D. Clifford, Firas Khatib, Adnan El-Nasan
Faculty Publications
Products from many domains (art, music, engineering design, literature, etc.) are considered to be creative works, but there is a misconception that computer programs are limited by set expressions and thus have no room for creativity. To determine whether computer programs are creative works, we collected programs from 23 advanced graduate students that were written to solve simple and complex bioinformatics problems. These programs were assessed for their variability of expression using a new measurement that we designed. They were also evaluated on several elements of their creativity using a version of Cropley and Kaufman’s (2012) Creative Solution Diagnosis Scale …
The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson
The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson
Kernochan Center for Law, Media, and the Arts
The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).
The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. …
The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio
The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio
Kernochan Center for Law, Media, and the Arts
Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes.
Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress …
Proving Copying, Shyamkrishna Balganesh, Peter S. Menell
Proving Copying, Shyamkrishna Balganesh, Peter S. Menell
Faculty Scholarship
Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …
Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg
Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg
Faculty Scholarship
Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …
Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Faculty Scholarship
We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.
Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek
Faculty Scholarship
PD7 is often confusing, largely as a result of failure to provide important explanations or definitions, or to tell the reader where that information can be found. Key terms, such as “edicts of law” and “formalities” remain undefined. Formalities are a principal topic of PD7; they deserve a more thorough description than the draft contains, addressing what formalities are, whether every declaratory obligation (or option) is a “formality,” or only those that go to the existence or enforcement of copyright (this is the Berne Convention meaning of “formality”).
Fair Dealing For The Purpose Of Education: York University V The Canadian Copyright Licensing Agency, Pascale Chapdelaine
Fair Dealing For The Purpose Of Education: York University V The Canadian Copyright Licensing Agency, Pascale Chapdelaine
Law Publications
In York University v The Canadian Copyright Licensing Agency (2020), the Federal Court of Appeal was confronted with two issues at the heart of ongoing debates in Canadian copyright law. First, whether tariffs of copyright collective societies are mandatory. Second, and the main focus of this case comment, how should the fair dealing doctrine be interpreted with respect to the purpose of education. The Federal Court of Appeal upheld the Federal Court decision that York University Fair dealing Guidelines did not meet the fair dealing requirements in copyright law. This case comment highlights how the Federal Court and Federal Court …
Introducing The Copyright Anxiety Scale, Amanda Wakaruk, Céline Gareau-Brennan, Matthew Pietrosanu
Introducing The Copyright Anxiety Scale, Amanda Wakaruk, Céline Gareau-Brennan, Matthew Pietrosanu
Copyright, Fair Use, Scholarly Communication, etc.
Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with …
Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg
Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg
Faculty Scholarship
This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …
Unspoken Criticism: Audiovisual Forms Of Critique As Fair Use, Alec Fisher
Unspoken Criticism: Audiovisual Forms Of Critique As Fair Use, Alec Fisher
Kernochan Center for Law, Media, and the Arts
This Note argues that the traditional legal framework for analyzing a work of alleged criticism as fair use is particularly constraining for YouTube reaction videos and other audiovisual forms of criticism that largely critique or comment on an original work in a non-spoken, visual manner. It discusses the emphasis that the current fair use jurisprudence places on spoken and written critical elements when undertaking a fair use analysis of a work of criticism, then advocates for a new conception of fair use criticism that incorporates film-specific analytical techniques and concepts when analyzing the critical elements of online audiovisual works. Part …
Letter To Council Members Regarding Council Draft 5, Jane C. Ginsburg, June M. Besek
Letter To Council Members Regarding Council Draft 5, Jane C. Ginsburg, June M. Besek
Faculty Scholarship
We understand that the ALI Council will consider Council Draft 5 (CD5) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on January 20-21, 2021. We appreciate the opportunity to provide comments on CD5. We hope that you will give careful consideration to these comments and send CD5 back to the Reporters to address the problems we describe below.
Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg
Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg
Faculty Scholarship
The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.
In addition to analyzing …
International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente
International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente
Faculty Scholarship
The chapter “Applicable Law” of the International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferability, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protectionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …
Authoring The Law, Shyamkrishna Balganesh
Authoring The Law, Shyamkrishna Balganesh
Faculty Scholarship
Copyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme …
What Didn't Happen: An Essay In Speculation, Peter Jaszi
What Didn't Happen: An Essay In Speculation, Peter Jaszi
Articles in Law Reviews & Other Academic Journals
Most of us held off celebrating the beginning of a renewed slow trickle of works into copyright's public domain until the first seconds of New Year's Day, 2019, but (if it hadn't been so early in the day), we would have been entitled to raise a glass at 4:04 PM on the preceding December 27th, when the last substantive business undertaken in 2018 by either house of Congress was concluded in the Senate. (Like the House, which wrapped up its business at 4:02, the World's Greatest Deliberative Body had convened that day at 4:00.) At that moment, a last-minute push …
Copyright Infringement Liability Of Online Content Sharing Platforms In The Us And In The Eu After The Digital Single Market Directive: A Case Study, Teresa García-Barrero
Copyright Infringement Liability Of Online Content Sharing Platforms In The Us And In The Eu After The Digital Single Market Directive: A Case Study, Teresa García-Barrero
Kernochan Center for Law, Media, and the Arts
The EU copyright liability regime for internet service providers has significantly changed after the enactment of article 17 of the Digital Single Market Directive. Where two fairly similar systems once existed in the US and in the EU, there are now significant differences between the regimes with which service providers must comply in each region. This paper seeks to offer a practical view of the differences between both systems through a comparative analysis of the result that the application of each legal framework would have on an identical factual case. Specifically, this paper contrasts the decision reached by US courts …
Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work", Jane C. Ginsburg
Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work", Jane C. Ginsburg
Faculty Scholarship
Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should …
Internet Architecture And Disability, Blake E. Reid
Internet Architecture And Disability, Blake E. Reid
Publications
The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …
Fair Use In The United States: Transformed, Deformed, Reformed?, Jane C. Ginsburg
Fair Use In The United States: Transformed, Deformed, Reformed?, Jane C. Ginsburg
Faculty Scholarship
Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous). …