Digital Commons Network^™

Hi Barbie! A Cultural Phenomenon Illustrates How Courts Have Lost The True Meaning Of The Independent Creation Defense, Shelby Harrison

Northern Illinois University Law Review

From movies to advertisements to department stores, Barbie is everywhere. Barbie has been around for decades and is now a cultural phenomenon. It is almost impossible to not be familiar with the iconic fashion doll. With a creation so popular and so powerful, how do other individuals or businesses create their own doll without being influenced by Barbie? This Note discusses the independent creation defense within copyright infringement. The focus of this Note is whether a defendant would even be able to assert the independent creation defense when their opponent’s creation is so widely known, like Barbie. This Note emphasizes …

Development And Practice Of Tribal Community Planning: Ensuring Indigeneity In The Planning Process, Jared E. Munster, Ph.D.

American Indian Law Journal

No abstract provided.

Case Law On American Indians: September 2023 - August 2024, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

The Ai Input Class: Constitutional Urgency And Fair Licensing In Ai Copyright Class Actions, Xuan-Thao Nguyen, Elizabeth G. Porter

Articles

The humanities have long been under attack; now Big Tech is eating them for breakfast. Artificial Intelligence is undermining the cultural and constitutional values of human creativity; it is also threatening the livelihoods of the creative working class. Because neither Congress nor regulators can keep pace with AI’s pace of change, class actions have stepped into the breach. In the first wave of such litigation, authors and artists in courts on both coasts claim that AI companies violate intellectual property law when they “train” their systems on copyrighted works.

This Article analyzes what we call “input” AI claims—that is, proposed …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

BYU Law Review

Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased. The Article then discusses a third line of arguments— harmonization-based arguments—and …

Generating More Equitable Fair Use, Jacqueline Kessel

Pepperdine Law Review

From advancing healthcare and education to threatening democratic systems, generative artificial intelligence (AI) has demonstrated a capacity to positively and negatively impact society. And these benefits and consequences are not shared equitably. Copyright law, however, stands as a powerful mechanism in monitoring AI system development. Several complaints have charged generative AI system developers with copyright infringement, alleging that (1) ingesting copyrighted works as training data infringes the copyright owner’s exclusive right to reproduce works in copies and (2) generating AI outputs infringes the exclusive right to prepare derivative works because the outputs are based upon the works on which the …

What Copyright Can't Do, Blake E. Reid

Pepperdine Law Review

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law’s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But …

The Mic Drop: The Urgent Call For Scotus To Settle The Discord On Right Of Publicity Preemption And The Split That Never Was, Roselyn P. Castillo

University of Miami Business Law Review

The Roberts Court and . . . 50 Cent? Surely, no one predicted this duo, but sooner rather than later, it may be reflected in casebooks across the nation. In 2020, the Second Circuit joined what has been referred to as a growing circuit split over the tension between state law right of publicity claims and federal copyright preemption. Aligning with the Eighth and Ninth Circuits, the Second Circuit held that a state law right of publicity claim was preempted. Conversely, the Third, Fifth, and Seventh Circuits have held that copyright law does not preempt state law right of publicity …

Cultivating Legal Protection: Replacing Wine Labeling Regulations With Regional Certification Marks, David Corasaniti

Washington and Lee Law Review Online

While wine labeling in the United States is currently governed by a complex regulatory framework administered by the Alcohol and Tobacco Tax and Trade Bureau (“TTB”), intellectual property (“IP”) rights for wine producing regions could serve this core function of protecting consumers better and more efficiently. Regulating wine labeling through IP would more closely mirror the system used by the European Union, which recognizes Geographical Indications, such as Champagne, Rioja, and Bordeaux, as a unique form of IP. By deregulating American wine labeling, and encouraging wine producing regions to assert their IP rights in the form of collectively held certification …

Ai-Generated Content And Copyright Infringement: Analyzing Corporate Liability In The Era Of Artificial Intelligence, Gloria Domingos, Dr. Daria Koucherets

Seattle University Law Review Online

Recent lawsuits by major content creators against artificial intelligence companies have brought a critical legal question to the forefront: Under current U.S. copyright law, can AI companies be held liable for direct copyright infringement when their systems generate outputs that substantially mirror protected works? This question has gained particular urgency as AI systems like ChatGPT and DALL-E demonstrate increasingly sophisticated capabilities to generate content that may replicate elements of copyrighted materials.

The answer, based on current legal precedent and statutory frameworks, is that AI companies can likely be held liable for direct copyright infringement. However, traditional tests for establishing such …

The Choice Of Law For Nazi-Looted Art Restitution: Cassirer V. Thyssen-Bornemisza Collection Foundation, California Assembly Bill 2867, And The Balance Between State, Federal, And Foreign Law, Alexander Stanfield

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

A Deep Fake Dilemma: The Battle Over Keeping It Real, Tyler Gollin

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Training Your Large Language Model How To Speak "Human": A Transformative Public Necessity Or Copyright Infringement?, Isabelle Nasser

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Renaissance Of Inequitable Conduct: Luv N' Care, Ltd. V. Laurain And The Affirmative Egregious Misconduct Exception To But-For Materiality, Katherine Reich

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

The Mediation Dance Of Choreography Copyright, Kassandra Sopko

Pepperdine Dispute Resolution Law Journal

Despite its societal presence and pervasive benefits for both performers and observers, dance remains a low-paying field with limited career longevity. While dance choreography copyright protection is an option for artists to monetize their work long-term, there are significant barriers due to legal complexities, financial burdens, and lack of awareness regarding copyright protections. The limitations of the copyright landscape burden choreographers who do seek to take advantage of their intellectual property rights, and many of the current suggested solutions for protecting choreography either prove inadequate or involve negative consequences. Alternative Dispute Resolution (ADR), particularly mediation with BATNA/WATNA incentives, presents a …

Trademark Rights In Patented Subject Matter And The Patent Policy Of Public Dedication, Maine Law Review

Maine Law Review

This Comment examines the allowance of federal trademark registration for devices that may also qualify for patent protection. A conflict between trademark recognition for patentable devices and basic patent policy inheres in the Patent Act and Supreme Court decisional law. The availability of trademark registration for patentable subject matter may needlessly derogate the public right to benefit from the free exploitation of new ideas.

A Peek Behind The Scenes Of Supreme Court Decision Making Concerning The Federal Ip System, Jonathan Band

Joint PIJIP/TLS Research Paper Series

In the 1970s and 80s, the Supreme Court decided three cases that continue to define the limits of the authority of the states within the federal intellectual property system: Goldstein v. California (1973); Kewanee Oil Co. v. Bicron Oil Co. (1974); and Bonito Boats v. Thunder Craft Boats, Inc. (1989). The papers of the Supreme Court Justices that decided these cases show the Court as a human institution wrestling with this complex issue. This issue has assumed new importance as state legislatures have rushed to enact laws on the use of generative artificial intelligence to replicate the voice …

Documentary History Of The Limitations And Exceptions In The Sccr, Luca Schirru, Lokesh Vyas, Haddija Jawara, Lukas Ruthes Gonçalves, Sean Flynn

Joint PIJIP/TLS Research Paper Series

The objective of this study is to systematically map all meetings of the Standing Committee on Copyright and Related Rights (SCCR) and the General Assemblies (GA) of the World Intellectual Property Organization (WIPO) to extract, compile, and organize all relevant statements made by Member States regarding the Limitations and Exceptions (L&Es).

The analysis was based on publicly available data from the WIPO website, particularly the official pages dedicated to each SCCR and GA meeting. Our primary focus was on statements recorded in the official "Report" document of each session. When available, we also examined supplementary documents, such as the "Summary …

Trademark Expansion As An Avenue To Protect Personal Identity Amidst The Rise Of Deepfake Technology, Abigail Sawyer

Journal of Intellectual Property Law

Recent technological advances, often referred to as deepfakes, pose a new legal conundrum. How can individuals protect their identities online? A deepfake is a manufactured image, video, or audio file that appears to attribute words or acts to someone that has never acted in such a manner. Already this technology has been used to extort money and in attempts to spread false information and sway elections. As technology continues to improve, these deepfakes will only become increasingly more convincing. Traditional approaches to identity protection do not address all the various harms or the multi-jurisdictional nature of the harms that deepfakes …

Is Trade Secret Law Applicable And Practical In Sec Coaching? A Look Into Kirby Smart And Nick Saban, Dante Pellegrino

Journal of Intellectual Property Law

Trade Secret Laws are vital in the corporate world to protect and encourage corporations to innovate without fear of others profiting from their effort. Is this applicable in other areas as well? This note analyzes the applicability and practicality of Trade Secret Law in College Football coaching through the lens of Kirby Smart, Head Coach at the University of Georgia, and Former University of Alabama Head Coach Nick Saban’s previous professional relationship. Coach Kirby Smart worked under Coach Saban for eleven years. After this, Kirby Smart succeeded as the Head Coach at the University of Georgia. The success and organization …

The Art That Makes The Ai Artist: Ai’S Potential As A Copyright Infringer And Its Future Under A Licensing Requirement, Bailee Jetton

Journal of Intellectual Property Law

The practices and advancements in the generative AI training process have sent many authors and artists in the creative industry into a panic. In addition to demonstrating output that can rival human-made works, many AI companies rely on copying hundreds of thousands of copyrighted works to teach their AI models. This raises the question of whether AI companies are infringing or if they are permitted to use the work for training purposes under the fair use doctrine. Through current precedent within copyright law and the fair use defense, this note analyzes whether generative AI’s use of copyrighted materials will be …

A New Curveball: An Analysis Of The Current Nil Battle That Is Destabilizing The Landscape Of College Athletics, Sierra Hamilton

Journal of Intellectual Property Law

On June 21, 2023, the Supreme Court unanimously ruled that the NCAA was in violation of antitrust law and found unlawful the organization’s restrictions on education-related benefits schools could offer student-athletes. This ruling marked the official beginning of the Name, Image, and Likeness (NIL) boom throughout college athletics. Presently, the NCAA has failed to develop uniform regulations that conform to the standards set by the Supreme Court and appease the nationwide educational institutions. As a result, states have drafted various bills and laws to regulate NIL contracts throughout their jurisdiction. Foreseeably, this has created an air of uncertainty around NIL …

The Secret Service Industry: Reimagining Trade Secret Protections To Curb Exploitation In The Hospitality Industry, Caleb Graham

Journal of Intellectual Property Law

This paper observes and analyzes the current discussion around the exuberant use of non-compete clauses in the business world by placing a focus on the hospitality industry and why, in an time where we are witnessing the demonization of non-competes it might be prudent to revisit and enhance trade secret laws to make them better equipped to handle the caseload that would inevitably come should non-competes be banned by the FTC. While the near-ban or complete ban of non-competes would certainly affect other industry fields and bodies of law, the hospitality industry is one that has been particularly scrutinized as …

Bootlegging For The Better: Livestreams And The Music Industry, Delta Pennington

Journal of Intellectual Property Law

As online presence has continued to become a more important aspect of everyday, it has become a norm in American Culture to share every aspect of life, including concert attendance. While artists expressed distaste in the past for recording at concerts, there has been a shift by musicians to acceptance of recording at concerts, sometimes being an important form of cheap promotion. Artists that do continue to express distaste for concerts being shared on social media have turned to non-legal remedies to solve their problem. Although there is a remedy available to artists for the livestreaming of concerts through the …

The Fringe Musician, The 360 Deal, And A New Look At Copyright And Competition In Music, Michael L. Menna

Journal of Intellectual Property Law

This article is guided by two questions: (1) How well does the law actually protect musicians from market exploitation? (2) What new perspectives and legal strategies can better secure their bargaining power and financial wellbeing? Copyright and antitrust are not mutually exclusive in music or in any other industry, yet there are important lessons to be learned from comparing how the musician’s prominence in each doctrine does and doesn’t correlate to what its laws can really do for different members of that creator class. Stakeholders frequently cast copyright as an essential necessity for “everyone in the music industry,” but this …

Art Wants To Be Free, Brian L. Frye

Journal of Intellectual Property Law

What is fair use? In Warhol v. Goldsmith, the Supreme Court held that licensing a painting based on a photograph wasn’t a transformative fair use, because the painting competed with the photograph in the market for images of the same person. This article tells the story of Warhol v. Goldsmith, analyzes the opinion, and explains how it changed copyright doctrine. It also presents a theory of how appropriation artists can use the public domain to insulate themselves from liability for copyright infringement.

Exploitation Of User Generated Content For Generative Ai: Making A Case For Data Privacy Rights In Your Social Media Posts, Millicent Wong

UC Law SF Communications and Entertainment Journal

Nearly all user-generated content contains personal data. Yet, Big Tech companies can exploit the user-generated content you posted because under current legal frameworks, the information is already public (no matter how many sordid details you’ve shared in that social media post). In the age of the great generative AI arms race between OpenAI, Google, and Meta, technology companies are collecting mass amounts of user-generated content on their platform for training AI models. This Note argues that current data privacy practices with respect to user-generated content is anti-consumer, because it fails to take today’s technological advancements, business practices, and online norms …

From Murphy To The Seminole Compact: California’S Pathways To Sports Betting Legalization Without A Constitutional Amendment, Makenalani “Roo” Cash

UC Law SF Communications and Entertainment Journal

No abstract provided.

Humanist Copyright, Jane C. Ginsburg

Faculty Scholarship

This exploration of the role of authorship in copyright law proceeds in three parts: historical, doctrinal, and predictive. First, I will review the development of author-focused property rights in the pre-copyright regimes of printing privileges and in early Anglo-American copyright law through the 1909 U.S. Copyright Act. Second, I will analyze the extent to which the present U.S. copyright law does (and does not) honor human authorship. Finally, I will consider the potential responses of copyright law to the claims of proprietary rights in AI-generated outputs. I will explain why the humanist orientation of U.S. copyright law validates the position …

Drowning In The Patent Pool: Is Statutory Invention Registration A Lifeguard?, Henry H. Perritt Jr.

West Virginia Law Review

Patents for inventions, available since the first Congress enacted the Patent Law of 1790, have been controversial. Defenders justify patents on the grounds that they are necessary to protect inventors from free riding—copying that would deprive the inventors of an opportunity to recover the costs of development. Detractors attack patents as unnecessary monopolies, thwarting innovation. The debate continues, even as the law itself has remained remarkably constant. Technology and industry structure have not remained constant, however. Patents have proliferated, resulting in patent thickets that make it impossible to create and market any innovative product without infringing hundreds of patents. Patent …