Law Commons^™

Generative And Ai Authored Artworks And Copyright Law, Michael D. Murray

Law Faculty Scholarly Articles

Generative art linked to non-fungible tokens (NFTs) is an extremely popular genre of art in the NFT universe. Many of the most famous NFT projects—CryptoPunks, Bored Ape Yacht Club, World of Women, Azuki, Chromie Squiggles, Clone X, and Moonbirds, just to name a few—involve generative art. But there is a potential copyrightability problem with generative art:

Under current United States copyright law, many examples of generative art might be held to be uncopyrightable.

Why does generative art fail in the copyrightability analysis? As discussed below, it is because the work might lack a human author. And at present, the U.S. …

Transfers And Licensing Of Copyrights To Nft Purchasers, Michael D. Murray

Law Faculty Scholarly Articles

Property as a concept in the law means the right to own and control something and to exclude others from using and controlling it. This concept often is expressed as the rights owner having a monopoly over the thing that is owned. When the term “intellectual” is added to the concept of property, it means that the thing protected is a non-tangible item devised, imagined, developed, or invented by a person or group, and that thing has value deserving of protection in the law. Copyright is one form of intellectual property (“IP”), the others being trademarks, patents, right of publicity, …

Copyright Transformative Fair Use After Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith, Michael D. Murray

Law Faculty Scholarly Articles

On May 18, 2023, the United States Supreme Court entered its opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The Court examined the work of the renowned artist Andy Warhol (Warhol), posthumously represented by his eponymously named foundation, who had incorporated a significant portion of the visual elements from Lynn Goldsmith’s photograph of the deceased rock star Prince without Goldsmith’s permission. In a 7-2 opinion, the Court held that Warhol’s use of the Goldsmith photograph was not “transformative” and thus did not constitute fair use of the photographer’s work. This article will explain and analyze …

Generative Ai Art: Copyright Infringement And Fair Use, Michael D. Murray

Law Faculty Scholarly Articles

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to …

Nft Ownership And Copyrights, Michael D. Murray

Law Faculty Scholarly Articles

Non-fungible tokens (NFTs) have made enormous waves in the art, music, entertainment, and collectibles world, but the backwash of this blockchain technology has inundated and overwhelmed many peoples’ understanding of intellectual property (IP) law in general and copyright law in particular when it comes to NFTs and blockchains. Artists and creatives who mint NFTs often have very different understandings and expectations from collectors and investors who purchase and use them when it comes to the copyrights associated with the content linked to an NFT. Art law attorneys may not have gone fully down the rabbit hole that is the current …

Trademarks, Nfts, And The Law Of The Metaverse, Michael D. Murray

Law Faculty Scholarly Articles

This Article discusses the early encounters of NFTs, trademarks, and the legal system. This work will examine the areas where NFT creators are getting into or are likely to get into trouble with the law and policy of trademark infringement, trademark dilution, and the related legal causes of action of false endorsement and false designation of origin. United States law is being applied in lawsuits that already are being adjudicated in the real world concerning subject matter that exists only in cyberspace, the pre-cursor to the metaverse.

Are Cryptopunks Copyrightable?, Brian L. Frye

Law Faculty Scholarly Articles

Larva Labs’s CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars.

The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …

After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye

Law Faculty Scholarly Articles

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.

Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped …

Literary Landlords In Plaguetime, Brian L. Frye

Law Faculty Scholarly Articles

The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …

Conceptual Copyright, Brian L. Frye

Law Faculty Scholarly Articles

Conceptual art is art that consists of ideas, not their realization. It tests the

boundaries of art, by eliminating the art object entirely. Legal scholars should be

interested in conceptual art because it can help them test the boundaries of legal

doctrines and their justifications. I created a work of conceptual art that reflects

on both the securities laws and copyright doctrine. Among other things, I asked

the SEC and the Copyright Office to opine on that work, with limited success. I

use my experience to reflect on how conceptual art can illuminate our

understanding of the law.

A License To Plagiarize, Brian L. Frye

Law Faculty Scholarly Articles

Since time immemorial, authors have wanted to own various kinds of

exclusive rights in the works they create. Curiously, the rights authors want

to own at any particular point in time tend to reflect the nature of the market

for the works they create. The first exclusive right authors wanted was attribution.

In classical Greece, philosophers accused each other of copying

ideas without attribution. The Roman poet Martial coined the term plagiarius

to criticize other poets for passing off his poems as their own. Even

medieval Irish poets observed plagiarism norms that prohibited copying

without attribution. In all of these …

The Right Of Reattribution, Brian L. Frye

Law Faculty Scholarly Articles

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

In Re: Patentability Of The Peltzer Inventions, Brian L. Frye

Law Faculty Scholarly Articles

The motion picture Gremlins (1984) stars Hoyt Wayne Axton (1938-1999) as Randall Peltzer, a prolific inventor with persistent cash-flow problems. Among other things, the motion picture discloses many of Peltzer's inventions, including the "Bathroom Buddy," the "Peltzer Smokeless Ashtray," and the "Peltzer Pet." This essay takes the form of an opinion letter evaluating the patentability ofPeltzer's inventions.

Patents & Legal Expenditures, Christopher J. Ryan, Brian L. Frye

Law Faculty Scholarly Articles

Universities are engines of innovation. To encourage further innovation, the federal government and charitable foundations give universities grants in order to enable university researchers to produce the inventions and discoveries that will continue to fuel our knowledge economy. Among other things, the Bayh-Dole Act of 1980 was supposed to encourage additional innovation by enabling universities to patent inventions and discoveries produced using federal funds and to license those patents to private companies, rather than turning their patent rights over to the government. The Bayh-Dole Act unquestionably encouraged universities to patent inventions and license their patents. Since the passage of the …

Plagiarize This Paper, Brian L. Frye

Law Faculty Scholarly Articles

It is meet and just that I write this essay while toiling in the salt mines of academia. We academics devote our works and days to scouring those mines for ideas in the rough. Some of us discover a rich vein, but others must comb through the tailings. Whatever we find, we cut and polish until it glistens and shines. Of course, some ideas prove to be diamonds while others remain mere pebbles. But then a diamond is just a pebble that many people admire, and one person’s diamond is another’s pebble. Regardless, academics strive to find the scholarly diamond …

Legal Realism: Unfinished Business, Ramsi A. Woodcock

Law Faculty Scholarly Articles

No abstract provided.

Metaphors On Trademark: A Response To Adam Mossoff, “Trademark As A Property Right”, Brian L. Frye

Law Faculty Scholarly Articles

No abstract provided.

Christmas In July: A Response To David Fagundes, Why Less Property Is More, Brian L. Frye

Law Faculty Scholarly Articles

A response to David Fagundes, Why Less Property Is More: Inclusion, Dispossession, & Subjective Well-Being, 103 Iowa L. Rev. 1361 (2018).

Registration Is Fundamental, Brian L. Frye, Nicole E. Pottinger

Law Faculty Scholarly Articles

Under the Copyright Act, copyright owners can file infringement actions only if registration of their copyright claim with the Copyright Office “has been made” or “has been refused.” The United States Supreme Court recently granted certiorari in Fourth Estate v. Wall-Street.com, in order to decide whether registration is “made” when a claimant files a registration application or when the Copyright Office registers the claim.

This article argues that the Court should hold that registration occurs when the Copyright Office registers the claim, in order to ensure that federal courts can benefit from the expertise of the Copyright Office. The Copyright …

Invention Of A Slave, Brian L. Frye

Law Faculty Scholarly Articles

On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But …

"It's Your #!": A Legal History Of The Bacardi Cocktail, Brian L. Frye

Law Faculty Scholarly Articles

The Bacardi cocktail was the Cosmopolitan of the Jazz Age: a sweet and sour tipple with an attractive rosy hue and a deceptively alcoholic punch. Created in about 1913, and named after Bacardi rum, it soon became one of the most popular cocktails in America. Prohibition only increased its popularity, as wealthy Americans vacationing in Cuba enjoyed Bacardi cocktails and demanded them at speakeasies and at home. Of course, every good speakeasy offered white rum (or a passable facsimile thereof) and called it “bacardi” no matter who made it. After Repeal, the popularity of the Bacardi cocktail continued to rise …

An Empirical Study Of University Patent Activity, Brian L. Frye, Christopher J. Ryan

Law Faculty Scholarly Articles

Since 1980, a series of legislative acts and judicial decisions have affected the ownership, scope, and duration of patents. These changes have coincided with historic increases in patent activity among academic institutions.

This article presents an empirical study of how changes to patent policy precipitated responses by academic institutions, using spline regression functions to model their patent activity. We find that academic institutions typically reduced patent activity immediately before changes to the patent system, and increased patent activity immediately afterward. This is especially true among research universities. In other words, academic institutions responded to patent incentives in a strategic manner, …

Equitable Resale Royalties, Brian L. Frye

Law Faculty Scholarly Articles

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held …

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright …

Fixing Forum Selling, Brian L. Frye, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

"Forum selling” is jurisdictional competition intended to attract litigants. While consensual forum selling may be beneficial, non-consensual forum selling is harmful because it encourages jurisdictions to adopt an inefficient pro-plaintiff bias. In the last 20 years, the Eastern District of Texas has adopted an aggressive and remarkably successful policy of non-consensual forum selling in patent infringement actions. In 2016, 44% of all patent infringement actions were filed in the Eastern District of Texas, and 93% of them were filed by patent assertion entities or “patent trolls.”

In December 2016, the Supreme Court granted certiorari in TC Heartland v. Kraft, …

Incidental Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

As Mark Twain apocryphally observed, “History doesn’t repeat itself, but it often rhymes.” The history of the right of publicity reflects a common intellectual property rhyme. Much like copyright, the right of publicity is an incidental intellectual property right that emerged out of regulation. Over time, the property right gradually detached itself from the regulation and evolved into an independent legal doctrine.

Copyright emerged from the efforts of the Stationers’ Company to preserve its members’ monopoly on the publication of works of authorship. Similarly, it can be argued the right of publicity emerged from the efforts of bubblegum companies to …

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.

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have …

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Law Faculty Scholarly Articles

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …