Digital Commons Network^™

Fragmented Music Copyright Protection: A Better Arrangement, Matthew B. Goldman

Cardozo Arts & Entertainment Law Journal

The note explores the challenges of music copyright law, particularly in determining the protectability of fragmented elements within musical works. It argues that by applying doctrinal tools such as the idea-expression distinction, merger, scenes a faire, and thin copyright, courts can better balance the protection of original expression with the need to allow future creativity. The analysis focuses on two key cases, Skidmore v. Led Zeppelin and Gray v. Perry, to illustrate how these tools can be effectively used to resolve music copyright disputes.

Combating False Election Information In A Section 230 Protected World: To Moderate Or Not To Moderate, Caitlin Muraca

Cardozo Arts & Entertainment Law Journal

The note examines the challenges of combating false election information on social media platforms, focusing on the role of Section 230 of the Communications Decency Act. It argues that while Section 230 is crucial for protecting online speech, its current form is inadequate in addressing the spread of misinformation in the modern digital landscape. The note evaluates various proposals for reform, including the repeal or modification of Section 230, and suggests a balanced approach that maintains its protections while incentivizing improved content moderation to combat false election information.

Randomness, Ai Art, And Copyright, Richard H. Chused

Cardozo Arts & Entertainment Law Journal

The article argues that art created with the assistance of AI tools should generally be eligible for copyright protection. It posits that human agency is present in the creation of AI-generated art, as traditional artistic works also incorporate randomness and unpredictability. By examining works by artists like Alexander Calder, Robert Rauschenberg, and John Cage, the analysis demonstrates that randomness and unpredictability have long been protected under copyright law, suggesting that AI-generated art should receive similar treatment.

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

Cardozo Arts & Entertainment Law Journal

During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Protecting Ravenstail: Cultural Appropriation And The Outer Limits Of Copyright Law, Nosson Sternbach

Cardozo Arts & Entertainment Law Journal

The note examines the challenges minority cultures, particularly indigenous communities, face in protecting their cultural heritage through copyright law, focusing on the Sealaska Heritage Institute Inc. v. Neiman Marcus Group LTD, LLC case. It argues that copyright law's requirements—such as fixation, originality, authorship, and duration—create significant barriers for indigenous cultures seeking to safeguard their intellectual property. The note also critiques the Indian Arts and Crafts Act (IACA) for its inefficacy in preventing cultural appropriation, as it requires plaintiffs to prove specific harms and often fails to address the misuse of cultural motifs without explicit tribal names. The Sealaska case highlights …

Dickens V. Lee (1844): A Christmas Tale Of Two Experts Testifying, Mark Rose

Cardozo Arts & Entertainment Law Journal

The article examines the 1844 case of Dickens v. Lee, highlighting its significance as an early example of the use of expert witnesses in copyright disputes. Dickens successfully sued over the unauthorized adaptation of A Christmas Carol, but the case underscores the challenges of balancing literary and commercial considerations in copyright law. The defense's use of expert testimony to argue market differentiation contrasts with the court's focus on literary similarity, foreshadowing modern debates on substantial similarity in copyright infringement.

How Patents Became Politics, Steven Wilf

Cardozo Arts & Entertainment Law Journal

Political mobilization in the digital age often coalesces around opposition to the far-reaching protection of intellectual property. Both copyright and patent have materialized as the centerpiece of major political and legal debates that take a variety of forms, including the European pirate parties, NGOs such as the Electronic Frontier Foundation in the United States, and the call for open source software. The commonplace narrative is that self-interested stakeholders over the past century successfully fashioned an ever-expanding intellectual property system, and that resistance to such legal control of knowledge only emerged in our times. By contrast, this article recovers a littleknown …

100 Years Of International Ip - Reflections On Past, Present And Future, Frederick M. Abbott

Cardozo Arts & Entertainment Law Journal

The article reflects on the past 100 years of international intellectual property (IP) law, highlighting its evolution from regional agreements to global systems like the TRIPS Agreement. It emphasizes that IP rights are shaped by human policies and societal needs, not inherent qualities, making them adaptable. Current challenges include balancing IP protection with public access, addressing cybercrime, and grappling with AI-generated works.

Three Megatrends In The International Intellectual Property Regime, Peter K. Yu

Cardozo Arts & Entertainment Law Journal

The international intellectual property (IP) regime has undergone significant transformation over the past century, shaped by three key megatrends: the rise of emerging countries, the increasing complexity of the regime, and spatial transformation driven by new technologies. These trends have reshaped the regime's standards, policies, and challenges, with profound implications for global economic and social welfare. The article critiques the regime's historical bias toward developed nations and its overemphasis on trade interests, advocating for a balanced approach that integrates public welfare and human rights considerations. It concludes that the regime's growing complexity necessitates new institutional frameworks and vocabularies to address …

Why And What Federal Nil Rights Legislation Is Needed, Matthew J. Mitten

Cardozo Arts & Entertainment Law Journal

The article argues that federal Name, Image, and Likeness (NIL) rights legislation is essential to maintain the amateur/educational model of intercollegiate sports, preserve the distinction between college and professional athletics, and ensure competitive balance. It emphasizes the need for national uniformity to prevent conflicting state laws and address antitrust concerns.

The Supreme Court's Decision In Ncaa V. Board Of Regents: Did The Ncaa Really Misread It So Badly?, John Wolohan

Cardozo Arts & Entertainment Law Journal

Today, college athletes like LSU gymnast Olivia Dunne and Alabama quarterback Bryce Young can earn hundreds of thousands of dollars a year from social media and product endorsements. However; it was only a couple of years ago that the National Collegiate Athletic Association (NCAA) declared University of Central Florida football player Donald De La Haye ineligible to play because he refused to stop monetizing his videos on YouTube, thereby losing his scholarship. The purpose of this paper is to examine the impact the Supreme Court's 1984 decision in NCAA v. Board of Regents has had in the NCAA, going from …

The Nil Revolution: What's Next?, Andrew Zimbalist

Cardozo Arts & Entertainment Law Journal

The article examines the transformative impact of the NIL (Name, Image, and Likeness) revolution on college athletics, highlighting its legal, economic, and educational implications. It traces the evolution from historical amateurism to recent legal challenges, such as White v. NCAA and O'Bannon v. NCAA, which have reshaped compensation rules for student-athletes. The NIL revolution has introduced a new market where athletes can earn money, but it also raises concerns about equity, financial sustainability for colleges, and the educational welfare of athletes. The author argues that while the NCAA has struggled to lead reforms effectively, Congressional intervention may be necessary …

Ambushing Nil Restrictions: How Nil "Conflict Language" Policies Conflict With The First Amendment, Sam C. Ehrlich, Neal C. Ternes

Cardozo Arts & Entertainment Law Journal

The article argues that state NIL (Name, Image, and Likeness) laws and institutional policies restricting college athletes from signing sponsorship deals conflicting with school sponsors infringe upon athletes' First Amendment rights. These restrictions, often broad and imprecise, fail to meet constitutional standards, particularly under the Central Hudson test for commercial speech, and risk being struck down as unconstitutional prior restraints.

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

A Theoretical Analysis Of Orphan Works, Eden Sarid, Omri Ben-Zvi

Cardozo Arts & Entertainment Law Journal

In American libraries, museums, and archives, there currently are tens of millions of cultural treasures, such as photos, manuscripts, and sound recordings, which hold extraordinary academic, cultural, and historical value. But these valuable items, known as "orphan works, remain out of public reach. Orphan works are subject to copyright, but their copyright owners cannot be located. These works are stuck in limbo-as copyright works, they cannot be used without permission, but permission cannot be granted because the copyright owner is unknown. This exceptional predicament has not escaped the attention of legislators and academics, yet thus far, the United States has …

Mute Eloquence: A Gallery Of Contracting Emojis, Courtney Leon

Cardozo Arts & Entertainment Law Journal

The increasing use of emojis in electronic communications, exacerbated by the COVID-19 pandemic, has introduced complexity into contract law due to the lack of standardized interpretation. Courts are encountering disputes over emoji meanings, highlighting the need for a uniform framework. The proposed Emoji Codebook aims to address this by categorizing emojis and providing consistent interpretations, aligning with existing laws like the UCC and E-SIGN Act to facilitate clearer contract formation and mitigate misunderstandings.

And A Second Opinion For All... And Anything Else? The Jack Eichel Saga And Issues Of Medical Autonomy, Seth Warshaw

Cardozo Arts & Entertainment Law Journal

The note examines the legal and bioethical implications of the Jack Eichel Saga, focusing on the dispute between Eichel and the Buffalo Sabres regarding medical treatment under the NHL Collective Bargaining Agreement (CBA). It argues that the current CBA's "due consideration" standard for team physicians fails to adequately protect players' medical autonomy and informed consent rights. The analysis concludes that the Sabres would likely prevail in arbitration due to the narrow interpretation of the CBA's provisions, but the dispute highlights the need for reforms to align the CBA with ethical medical standards and enhance player autonomy.

The Past And Future In International Patent Law, Rochelle C. Dreyfuss

Cardozo Arts & Entertainment Law Journal

The organizers of the 2022 International Law Weekend asked us to consider how our fields have changed in the last century and to offer our thoughts about the future. For intellectual property, the changes have been formidable. The Industrial Revolution gave way to an Information Revolution. As a result, knowledge products now constitute a significant share of global wealth. And as the world increasingly endures crises like the recent pandemic, climate change, and food and energy insecurity, technological information will become even more important-indeed, crucial to the survival of the planet.

My own field is international patent law, where there …

Nine Copyright Things Every Library And Archive Should Know In 2023, Elizabeth Townsend Gard

Cardozo Arts & Entertainment Law Journal

The article argues that libraries are currently experiencing a "golden age" of protection from copyright liability, despite ongoing challenges. It highlights recent legal developments, such as the expansion of the public domain, updates to Section 108 of the Copyright Act, and the implementation of the Marrakesh Treaty, which collectively enhance libraries' ability to serve the public. However, the article also acknowledges significant legal setbacks, including adverse court rulings on controlled digital lending and state e-book laws, which complicate the landscape for libraries seeking to balance copyright compliance with public access.

Re-Striping: Predatory Trademarks And Common Signs, Lior Zemer, Or Morag, Yochai Rosner

Cardozo Arts & Entertainment Law Journal

Trademark laws were traditionally designed based on the belief that there was an infinite supply of eligible registrable signs. However, current studies show that trademark supply is finite, and that we are close to exhausting it. While trademark protection allows proprietors to distinguish between their goods or services from others, and allowing the public to do the same, the extent of such protection requires constant legal attention and reconsideration which, as contemporary trademark policies show, does not take place in the expected frequency.

One of the immediate consequences from this lack of attention is the rapid growth in strength of …

Should The Ncaa Be Subject To Title Ix?, Sarah Allen

Cardozo Arts & Entertainment Law Journal

The note argues that the National Collegiate Athletic Association (NCAA) should be held accountable under Title IX of the Education Amendments of 1972, despite its current exemption, due to its significant role in college athletics and the persistent gender disparities in treatment of male and female athletes. It advocates for overturning the Supreme Court's decision in NCAA v. Smith to bring the NCAA under Title IX purview.

Net Positive: Imposing A Duty To Warn On Baseball Stadium Operators, Eric Rothman

Cardozo Arts & Entertainment Law Journal

The note argues that the Baseball Rule, which shields stadium operators from liability for foul ball injuries if they provide minimal protections, is outdated and inadequate given modern conditions. It proposes modifying the rule to include a duty to warn spectators of each foul ball as it is hit, drawing on Japan's successful implementation of a real-time warning system. This approach balances spectator safety with the preservation of baseball's unique fan experience.

Panel 1: Race, Gender & Equity, Len Elmore, Jo Potuto, Kassandra Ramsey, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article discusses the evolution of Name, Image, and Likeness (NIL) rights in college athletics, focusing on the challenges these rights present for race, gender, and equity. It highlights the need for legal and regulatory reforms to address disparities in NIL opportunities and ensure equitable treatment of student-athletes.

Pay No Attention To The Influencer Behind The Curtain, Eliza Logan

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission (FTC) must strengthen its regulation of social media influencers, particularly on platforms like Instagram, due to their significant influence on consumer behavior and the potential for deceptive marketing practices. It emphasizes that influencers should be held accountable similarly to advertising agencies, as their unique ability to build trust and authenticity with followers makes their endorsements more impactful than traditional advertising.

Easing The Burden Of Survivors Of Domestic Violence Through The "One Family, One Judge" Court Model: Why Integrated Domestic Violence ("Idv") Courts Should Be Instituted Throughout The United States, Elka B. Blonder

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the implementation of Integrated Domestic Violence (IDV) Courts nationwide, arguing that these courts provide a more efficient and supportive system for survivors of domestic violence by consolidating criminal, civil, and family cases under a single judge. This "one family, one judge" model aims to reduce the fragmentation and trauma survivors face in traditional court systems, offering a holistic approach that enhances survivor safety and offender accountability.

Accessibility In The Digital Age - Why The United States Needs A New Approach To The Americans With Disabilities Act, William J. Seguin

Cardozo Journal of Equal Rights & Social Justice

The note argues that the Americans with Disabilities Act (ADA) must be updated to address digital accessibility, as its current framework, designed for the physical world, fails to accommodate the realities of the digital age. The ADA's success in promoting physical accessibility contrasts sharply with its inadequacy in ensuring equal access to digital spaces, highlighting the need for a new approach that includes digital platforms under its protections.

Annotated Legal Bibliography

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Where Is Negotiation In Hybrid Warfare?, Art Hinshaw, Adrian Borbely, Calvin Chrustie

Cardozo Journal of Conflict Resolution

The question of what negotiation has to do with hybrid warfare was the starting point for Project Seshat, a project gathering a global group of academics and practitioners from many walks of life. Their shared interest is in exploring what the fields that fit generally within the concepts of "security" and "dispute resolution" have to offer each other in the context of hybrid warfare grey zone conflict, and how these two "sets" of fields interconnect. In trying to better understand what hybrid warfare is, how it works, and how best to respond to it, negotiation and dispute resolution academics have …

2022-2023 Annual Report, Heyman Center On Corporate Governance

Heyman Center Annual Reports

The 2022-2023 Annual Report of The Samuel & Ronnie Heyman Center on Corporate Governance at Cardozo Law School highlights key events, the Heyman Scholars Program, and the diverse curriculum offerings. Featuring insights from industry experts and faculty, the report showcases the Center's commitment to excellence in business and corporate law education.

Oral Argument In Moore V. Harper And The Perils Of Finding “Compromise” On The Independent State Legislature Theory, Katherine A. Shaw

Online Publications

The Supreme Court’s cert grant last June in Moore v. Harper was an ominous note on which to end an explosive term. The grant seemed to broadcast an openness to embracing what’s known as the “independent state legislature theory,” or ISLT. It is a once-fringe idea that the U.S. Constitution, and in particular Article I’s “elections clause,” grants to state legislatures alone, and withholds from other state entities (think: courts and constitutions), the power to regulate elections for federal office.