Law Commons^™

A Right To Republish: Redesigning Copyright Law For Research Works, Faith O. Majekolagbe

Joint PIJIP/TLS Research Paper Series

Research works occupy a unique place in the knowledge economy. They are foundational to human development, and they expand our existing knowledge base and catalyze entirely new fields of study. Creators of research works have a significant interest in the public accessibility of their works at the earliest opportunity with no expectation of financial returns from sales and distribution. As such, they constitute a different category of works and facilitate distinct considerations than other creative goods governed by copyright. Copyright law is organized around the provision of economic incentives to facilitate the continued production and distribution of authorial works for …

Limitations And Exceptions In The Wipo Instrument On Genetic Resources And Associated Traditional Knowledge, Sean Flynn

Joint PIJIP/TLS Research Paper Series

One of the hot topics in the World Intellectual Property Organization (WIPO) diplomatic conference on an instrument on “Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources” is whether and what exceptions language should be included in the text. At the brief public report from Committee I on May 15, 2024, the Chair reported: “There appears to be adequate support for eliminating Article 4, limitations and exceptions. Some parties opposed.” This Blog provides some background information on the Article and analysis of potentially applicable models and concepts for the provision, including analysis of similar treaties with no exceptions.

Sanctions For Non Disclosure, As Set Out In Article 6 Of The Wipo Basic Proposal On Intellectual Property, Genetic Resources And Traditional Knowledge, Should Include Possible Revocation Of A Patent, James Love, Claire Cassedy

Joint PIJIP/TLS Research Paper Series

The basic proposal for an international legal instrument relating to intellectual property, genetic resources and traditional knowledge associated with genetic resources prepared by the World Intellectual Property Organization (WIPO) Secretariat (GRATK/DC/3) sets out in its Article 3 a narrow obligation to disclose (1) the country of origin of the genetic resource, or if not known, its source, and (2) the Indigenous Peoples or local community that provided traditional knowledge associated with the genetic resource, or the source of such knowledge.

Article 6 of the basic proposal sets out the sanctions and remedies for failures to make such disclosures. Among the …

Copyright & Modding In The Modern Gamespace, Josephine Railston

Student Scholar Symposium Abstracts and Posters

In the modern gamespace, modding has become an excellent opportunity for video game enthusiasts to express their creativity and love for a game; but what happens when that passion is stifled by a major company? My poster presentation will examine the ethics behind modding and ROM hacking, from both the perspectives of major video game corporations as well as their fanbase at large. We will analyze this issue using the case study of Pokémon Prism, a Pokémon Crystal ROM hack, which was canceled days prior to its release following a cease and desist by Nintendo. More specifically, we will investigate …

Cerveza Cristal: A Copyright Loophole In A Beer Ad From 2003?, Sebastian Saavedra Irarrazaball

AELJ Blog

The internet stumbled onto a ready-made meme last month in the form of 20-year-old beer commercials from South America1. Back in 2003, a Chilean advertising agency decided to elevate the art of product placement. Their canvas: a planned broadcast of the original trilogy of Star Wars during a primetime slot on the second most popular national channel. DVDs were in their commercial infancy in the country, VHS tapes were available, but not everywhere. There was a guaranteed, captive audience.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 30, 2024. The original post …

Downstreaming, Rachel Landy

Faculty Articles

Spotify and its competitors all offer the same product at the same price. Why? Scholars have argued that relationships can be designed in a way that naturally promotes innovation. By “braiding” certain formal contracting practices with informal enforcement norms, parties develop a frame-work that supports trust and positive, long-term collaboration. This Article takes on this consensus and shows that not all braiding is good. Using the multibillion-dollar subscription music streaming business as an illustration, it demonstrates just how industry forces can, and do, overcome braiding’s positive slant. In that industry, the major record labels (Universal, Warner, and Sony) weaponize braiding …

The Impact Of The “Misclassification” Of Employees As Independent Contractors On New York City’S Performing Arts Institutions And Gig-Based Performers, Katie Sigety

AELJ Blog

During the height of the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) made it possible for independent contractors to access unemployment benefits, or “Pandemic Unemployment Assistance” (“PUA”), for the first time. This created a new awareness for how many gig-based performing artists were considered independent contractors. In the wake of the PUA program expiration in 2021, the DOL identified 425,000 fraudulent unemployment benefit claims filed, totaling $5.5 billion, during the COVID-19 pandemic. The fraudulent claims were filed using the real identities of individuals who were not employed, which were likely stolen during previous data breaches …

Fanfiction Flicks: Dissecting The Expected Legal Ramifications Of Harry Styles Homages On The Big Screen, Aydan Urias

AELJ Blog

When the trailer for the highly anticipated Amazon Prime film The Idea of You debuted on YouTube in March 2024, viewers were captivated by the striking resemblance between the main character, Hayes Campbell, portrayed by Nicholas Galitzine, and the renowned former British One Direction member, Harry Styles. The film is based on the novel The Idea of You by author Robinne Lee. In a 2017 interview, Lee admitted to beginning the novel after seeing a YouTube video of the boy band One Direction and stated that she was specifically inspired by the personal life of Harry Styles.

This post was …

Tennessee Legislature Declares That The Human Voice Will Remain ‘The King’ In Nashville, Ryan Bickett

AELJ Blog

Last month, Tennessee broke legal ground by passing the Ensuring Likeness Voice and Image Security, or “ELVIS,” Act. This law amends the state’s existing publicity laws to include protections for an individual’s voice in general as well as specifically against artificial intelligence (AI) impersonation. The statute defines a voice as “a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.” This standard shows a statutory expansion of legal protections for voices that blossomed with major cases in …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Faculty Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Can You Smell A Lawsuit Cooking? Possible Risks With The Rock’S Trademarks, Cameron Brody

AELJ Blog

Dwayne Johnson is one of the most recognizable and successful working actors on the planet. For an entire generation, he is synonymous with smash-hit franchises such as Baywatch, Tooth Fairy, and Jungle Cruise. In fact, between 2019 and 2021, he was the highest-paid actor in Hollywood and raked in $270,000,000 in 2022 alone. Further, he is a co-founder of Teremana Tequila, which holds an estimated value of $3.5 billion, putting him on track alongside George Clooney and Ryan Reynolds as success stories in the celebrity alcohol market. His most recent endeavor, however, may put him on track towards a series …

Shades Of Green: Navigating The Legality Of Environmental Marketing, David Zack

AELJ Blog

A majority of Americans are concerned about climate change.1 This fear seems to be a driver of consumer spending decisions. According to a study by PDI Technologies, 68% of Americans are willing to spend more on environmentally sustainable products than their competitors that are not sustainable.2 This number has steadily grown over the past two years.3 This figure is even greater for key marketing demographics. 77% of Gen Z, 72% of millennials, and 76% of parents would be willing to do so. Because of this, companies have increasingly sought to position and market themselves as green companies.

This post was …

Toward The Substitutionary Promise Of Ptab Review, Saurabh Vishnubhakat

Faculty Online Publications

Although administrative patent trial proceedings under the Leahy-Smith America Invents Act (AIA) have done much to improve the efficient reevaluation of patent validity, significant problems remain. Divergent burdens of proof among the United States Patent and Trademark Office (USPTO) and Patent Trial and Appeal Board (PTAB) and the U.S. district courts allow the agency to disregard prior judicial decisions about patent validity and for patents to be relitigated even after surviving judicial review. Divergent claim construction standards allow for similar arbitrage, and, although the USPTO has now aligned its claim construction approach with that of the courts through rulemaking, that …

Wipo Good Practice Toolkit For Collective Management Organisations 2021: Suggestions For Possible Amendment, Desmond Oriakhogba

Joint PIJIP/TLS Research Paper Series

Drawing examples from national and international legal instruments, and based on existing studies, this comment makes suggestions for possible amendment of the World Intellectual Property Organization’s Good Practice Toolkit for Collective Management Organisations 2021 (CMO Toolkit). The suggestions are for inclusion of good practices in the CMO Toolkit that can inform the regulation of CMOs to prevent them from constituting obstacles to open access non-commercial licensing and L&Es-enabled access for education and research. The suggestion also covers good practices that will prevent CMOs from impeding the smooth and effective development of artificial intelligence systems. Recommendations include protecting rightholders' ability to …

Unmasking Deepfakes: Navigating The Copyright Quagmire, Ben Gross

AELJ Blog

In the ever-evolving landscape of digital technology, the emergence of deepfake technology has raised profound concerns, especially in the realm of copyright law. Deepfakes, sophisticated synthetic media created using artificial intelligence, can manipulate or replace existing content, often blurring the lines between reality and fiction.1 As these digital creations become more prevalent, questions surrounding their implications under copyright law have taken center stage.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 5, 2024. The original post can be accessed via the Archived Link button above.

Elaborating A Human Rights Friendly Copyright Framework For Generative Ai, Christophe Geiger

Joint PIJIP/TLS Research Paper Series

This paper analyses the copyright issues related to so-called “generative AI” systems and reviews the arguments currently advanced to change the copyright regime for AI-generated works from a human rights perspective. It argues that because of the applicable human rights framework for copyright but also the anthropocentric approach of human rights the protection of creators and human creativity must be considered the point of reference when assessing future reforms with regard to copyright and generative AI systems. Consequently, the copyrightability of AI-generated outputs should be considered with utmost care and only when AI is used as a technical tool for …

Bibliography For "Keeping The Rhythm Of Creativity: Celebrating The Performing Arts And Intellectual Property", Isabella Piechota, Arianna Tillman, Kalea Brown, Katherine Roth

Library Displays and Bibliographies

A bibliography created to support a display about the performing arts and intellectual property at the Leatherby Libraries during April 2024 at the Leatherby Libraries at Chapman University.

Everything You Want: The Paradox Of Customized Intellectual Property Regimes, Derek E. Bambauer

UF Law Faculty Publications

Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of …

Key Players: How Ip Lawyers Drive Successful M&A Integration, Eddie Halwani

AELJ Blog

In the dynamic world of mergers and acquisitions (“M&A”), intellectual property (“IP”) lawyers have proven essential in navigating the web of IP rights and obligations throughout the transaction process. As companies increasingly look to acquire new strategic levers, the expertise of these specialized lawyers has become invaluable, helping to ensure the validity of intangible assets and mitigating potential risks involved.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 28, 2024. The original post can be accessed via the Archived Link button above.

From Punchlines To Pesto To Prada: Exploring Intellectual Property’S Negative Space, Michael Ecker

AELJ Blog

Intellectual property (“IP”) law serves as the protective cornerstone for the creative industries—an especially important one at a time when unprecedented global connectivity links so many and in the process, so greatly heightens the potential for improper takings. Yet, a growing body of legal scholarship delves into a fascinating counterpoint: the “negative space” of IP. As Kal Raustiala and Christopher Sprigman posit in their Article, The Piracy Paradox, these creative endeavors “remain creative (and consequently do not require protection) precisely because they exhibit positionality sufficiently strong that it provokes a constant stream of new innovation.” This space encompasses creative fields …

Building A Text And Data Mining Limitation: The Brazilian Case, Luca Schirru, Allan Rocha De Souza, Claudia Chamas

Joint PIJIP/TLS Research Paper Series

In recent years, there has been a growing body of legal regulation of

TDM. Since 2018, Japan, the European Union, Singapore and others have

promoted changes to their copyright law and included specific limitations and

exceptions for TDM. These changes have been slow in the Global South and

the developing world, even though they are urgently needed there. This report

aims to present the Brazilian copyright legal framework and the policy

documents related to Intellectual Property, Artificial Intelligence and

innovation influencing political and public debate. This set of policies and

legislative texts provides the grounds for the discussion on the …

Study, Chill, Stream Lofi, And Repeat: From A Passion Project To A Recent Target Of Large Corporate Music Publishers, Lauren Woods

AELJ Blog

Ask yourself: what does the perfect workspace look and feel like? The answer varies from person to person. Some people prefer to work in crowded cafes, while others need complete silence. The concern became even more relevant during the height of the coronavirus pandemic, when many individuals were working remotely. As it does with many things, the internet came to our rescue and provided us with creative ways to yield efficiency. To spice up your WFH office arrangement, it provides different sources of background music that can help tune out distractions, regulate stress, increase productivity, and even improve sleep. YouTube, …

Is The Future Private? A Look Into Litigation Under Illinois’S “Bipa” Law, Paige Green

AELJ Blog

At Meta’s 2019 “F8” virtual development conference, Mark Zuckerberg stood in front of a presentation screen displaying the words, “the future is private.” Zuckerberg’s talking points centered on “build[ing] a more privacy-focused social media platform.” Increasing Meta’s focus on privacy, apparently, does not include ensuring compliance with Illinois’s Biometric Information Privacy Act (“BIPA”). While not exactly the first of its kind, a recent class action lawsuit against Meta alleges the company violated Illinois’s BIPA law by capturing, retaining, and profiting from the use of plaintiff’s “voiceprint” without disclosing or creating a meaningful retention policy for doing so.

This post was …

International Fans Crafting Fan Merchandise For U.S. Musicians: A Trademark Infringement Danger Zone, Gabriella Fernandez

AELJ Blog

In the early 2010s, the term “fandom” gained popularity among teenagers who were deeply devoted to their favorite musicians. The term “fandom” refers to communities of fans who come together through social media to express their shared admiration for a particular artist. When individuals unite to celebrate their mutual love for a musician, a genuine sense of connection and community is established. Through discussions about their shared passion for the artist, they often discover common interests and experiences that go beyond the music, fostering authentic friendships.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website …

Cardozo Aelj Author Interview Series: Aman K. Gebru, Ivana Petani

AELJ Blog

Aman K. Gebru is an Assistant Professor at the University of Houston Law Center, where he teaches courses on contracts and intellectual property law. Professor Gebru’s research examines issues at the intersection of intellectual property law, innovation policy, and knowledge governance from domestic and global perspectives. His recent projects examine how intellectual property laws deal with collectively developed creative expression, such as memes, dance crazes, hackathons, and indigenous (traditional) expression.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 14, 2024. The original post can be accessed via the Archived Link button above.

Tik Tok And Universal Music Group’S Licensing Battle, Sara Casey

AELJ Blog

A month-long standoff between Universal Music Group (“UMG”) and TikTok persists after combative licensing negotiations have continuously failed. This stalemate led to the removal of UMG’s music from the platform on February 1, 2024, silencing thousands of videos featuring UMG’s music and, in turn, drastically reducing content creators’ music options for new clips. The effects of the broken partnership have materialized, but the extent of the fallout is unclear, as some videos using UMG recordings appeared to be unaffected, while others, such as those featuring tracks by UMG artists Taylor Swift and Drake, have been silenced, accompanied by the statement …

Briefing Note: 45th Meeting Of The Wipo Standing Committee On Copyright And Related Rights, Sean Flynn

Joint PIJIP/TLS Research Paper Series

This analysis provides a historical and legal overview of the principle agenda items to be discussed at the 45th meeting of the Standing Committee on Copyright and Related Rights.

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

Cardozo Aelj Author Interview Series: Matthew J. Mitten, Ivana Petani

AELJ Blog

Matthew J. Mitten is the Professor of Law and Executive Director of the National Sports Law Institute at Marquette University Law School. Professor Mitten is a leading sports law scholar and has testified before a U.S. Congressional joint subcommittee, the Senate Judiciary Committee, and the Senate Commerce Committee, as well as the Knight Commission on Intercollegiate Athletics, on college sports law issues.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 27, 2024. The original post can be accessed via the Archived Link button above.

Govt Publications Must Give Credit Where Due, Aparajita Lath

Popular Media

Extract:

...[The] concept of moral rights applies not only to highly creative works of art or fiction but also to any original work, including original policy and academic writing, whether legal, economic, political, or any other. This concept of moral rights applies not only to highly creative works of art or fiction but also to any original work, including original policy and academic writing, whether legal, economic, political, or any other. In the recent past, several government bodies have borrowed from research published by individuals in newspapers in their reports and policy decisions.... While the government has benefited from individual …