Law Commons^™

Mcgucken V. Pub Ocean Ltd., Christina Robinson

Golden Gate University Law Review

This case summary details the decision in McGucken v. Pub Ocean Ltd., 42 F.4th 1149 (9th Cir. 2022), in which the U.S. Court of Appeals for the Ninth Circuit analyzed the proper application of the fair use doctrine under the U.S. Copyright Act. The Copyright Act (17 U.S.C. §§ 101 et. seq. (1976)) seeks to further cultural advancements by protecting the exclusive rights of creators. The fair use doctrine protects the interests of those who build upon the work of creators when they use portions of previously copyrighted works. In McGucken, the Ninth Circuit reversed the sua sponte …

Case Summary: Dr. Seuss Enterprises V. Comicmix Llc: Ninth Circuit Affirms Copyright Fair Use And Trademark Infringement Precedents

Golden Gate University Law Review

More than twenty years ago, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., the Ninth Circuit favored Seuss, concluding that The Cat NOT in the Hat!, a self-described “parody” of The Cat in the Hat, did not represent “fair use” of the children’s book under the Copyright Act. In 2019, Seuss entered litigation with ComicMix, the creator of Oh, the Places You’ll Boldly Go!

(“Boldly”), another self-proclaimed parody of the Dr. Seuss classic Oh, the Places You’ll Go! (“Go!”). The case presented a set of facts strikingly similar to those in …

Williams V. Gaye: Further Blurring The Lines Between Inspiration And Infringement, Alyssa Chavers

Golden Gate University Law Review

Part I of this Note outlines the factual and procedural history of Williams and discusses the Ninth Circuit’s analysis in its first and second opinions. Part II discusses the historical background of copyright law in the United States, namely the Copyright Act of 1909 and the Copyright Act of 1976. Additionally, this section explains the structure of a music copyright infringement suit, including the elements required to make a successful infringement claim.

Part III argues why courts should presume access in music copyright infringement cases, and subsequently, abandon the inverse-ratio rule. The inverse-ratio rule should be abandoned because people’s access …

Dc Comics V. Towle: To The Batmobile!: Which Fictional Characters Deserve Protection Under Copyright Law, Katherine Alphonso

Golden Gate University Law Review

Section I of this Note presents the history and purpose of copyright law by giving a brief background of its origin. It discusses how courts have since expanded copyright coverage to individual fictional characters, and chronicles the various challenges faced in applying the law. Section I also provides relevant facts and procedural history for the case.

Section II examines the Ninth Circuit’s discussion and holding. Section III discusses the inherent limitations of the three-part test used in the decision. It explains the importance of rejecting categorical protection and analyzing copyright for all fictional characters on a case-by-case basis. Section III …

Garcia V. Google, Inc.: The Ninth Circuit’S Refusal To Extend Copyright Protection To An Actor’S Performance, Reinforcing The Letter Of Copyright Law, Anna Nicolopulos

Golden Gate University Law Review

Copyright protection is rooted in the Intellectual Property Clause of the United States Constitution, which sets boundaries for the subject matter that can be protected by federal copyright law. The Ninth Circuit’s 2014 decision in Garcia v. Google, Inc., marked the first time a court ruled that an individual actor with a minor role in a film has a copyright interest in her own performance.

In Garcia v. Google, Inc., the Ninth Circuit originally held that the actor likely had a copyright interest in the film because she was “duped into providing an artistic performance that was used in …

In Re Ncaa Student-Athlete Name & Likeness Licensing Litigation: How Free Speech Lost A Key Battle In The War For Creativity, Leoangelo Cristobal

Golden Gate University Law Review

Part I of this Note explains the relevant law governing In re NCAA Student-Athlete Name & Likeness Licensing Litigation, followed by a summary of the factual and procedural history of the case. Additionally, Part I summarizes how the majority opinion of the Ninth Circuit followed case precedent to apply the five-factor “transformative use” test. Part II explains the dissenting opinion and argues why it should have been the opinion adopted by the court. Additionally, Part II asserts that the majority decision hampers free speech in sports entertainment and places an unnecessary cap on creativity.

Monge V. Maya Magazines, Inc.: The Demand For Celebrity Gossip And The Doctrine Of Transformative Use In The Ninth Circuit, Alyce W. Foshee

Golden Gate University Law Review

Despite the decreased circulation of traditional newspapers, celebrity gossip magazines continue to flourish in the publishing world. In June 2012, People Magazine reached a paid circulation of over 3.5 million copies, putting the publication at number nine on the top U.S. consumer magazines list for the first half of the year. Public demand for celebrity news and gossip is unwavering. With this popularity come problems - especially for those celebrities whose images end up supplying that high demand. In Monge v. Maya Magazines, Inc., the Ninth Circuit presided over a copyright battle between celebrities and a gossip magazine regarding fair …

The Inability Of Intellectual Property To Protect The New Fashion Designer: Why The Id3pa Should Be Adopted, Jessica Rosen

Golden Gate University Law Review

This Comment argues that Congress should adopt legislation that affords copyright protection to new fashion designers. The present state of the intellectual property regime leaves a new designer without any legal protection against blatant copying and can easily result in the designer’s business demise. Part I of this Comment provides a brief background of copyright law, as well as other doctrines of intellectual property law, and the limited protection these doctrines provide for fashion designs. Part I also explains how the limited protections afforded to fashion designs vis-à-vis intellectual property law are rarely, if ever, applicable to the new designer. …

Benay V. Warner Bros. Entertainment, Inc.: New Standard Needed For Determining Actual Use, Brian Casido

Golden Gate University Law Review

This Note examines Benay v. Warner Bros. Entertainment, Inc., and the substantial-similarity standard under a California breach of an implied-in-fact contract claim and a federal copyright infringement claim. The standard used in Benay will hinder the free flow of ideas by deterring producers from accepting an author’s screenplay for fear of breaching an implied-in-fact contract. Part I of this Note summarizes the history and development of the protection of rights to creative works. Part II provides the facts and procedural history of Benay v. Warner Bros. Entertainment, Inc. Part III analyzes and criticizes the Ninth Circuit’s holding in Benay …

Making Virtual Copyright Work, Matthew R. Farley

Golden Gate University Law Review

This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds …

Patently Obvious: A Dual Standard Solution To The Diverging Needs Of The Information Technology And Pharmaceutical Patent Industries, Andrew Moody

Golden Gate University Law Review

This Comment proposes the use of a specifically tailored obviousness standard as a new solution to the IT and pharmaceutical patent industries' divergent needs. Part I summarizes the obviousness standard's history in patent law. Part II illustrates how the IT and pharmaceutical industries have divergent needs. Part III describes why using a single standard for the obviousness inquiry is inadequate to meet the needs of both the IT and pharmaceutical industries. Part IV illustrates why the obviousness standard needs to be specifically tailored for the IT and pharmaceutical industries. Finally, Part V concludes that a dual standard for obviousness is …

The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane

Golden Gate University Law Review

The Ninth Circuit Court of Appeals issued three landmark decisions in 2007 that addressed how copyright protections apply to images that can be accessed over the Internet. Internet publisher Perfect 10 initiated these lawsuits based on allegations that its registered copyrights were infringed when unauthorized copies of its photographs appeared on third-party websites where they could be viewed, downloaded, and purchased without payment to Perfect 10. This Article briefly summarizes the facts of these three cases, explains the central holdings of each decision, and then concludes with a discussion of the collective impact that the three decisions have on enforcement …

Patenting The Diagnosis Of A Disease: The Scope Of Patentable Subject Matter Based On Labcorp V. Metabolite Labs, Timothy J. Ohara

Golden Gate University Law Review

Currently, a method of diagnosing a disease can be broadly claimed in a patent. The United States Supreme Court initially granted certiorari in Metabolite Labs to decide whether the method-of-diagnosis claim was patentable. Later, the Court dismissed certiorari as improvidently granted. This Note asserts that the Court should have adjudicated the case because there is a great need to clarify what is patentable subject matter for method claims that do not entail a physical transformation of matter, particularly in view of the seeming inconsistency between Diamond v. Diehr and State Street Bank & Trust Co. v. Signature Financial Group.

Newton V. Diamond: When A Composer's Market Is Not The Average Joe: The Inadequacy Of The Average-Audience Test, Reid Miller

Golden Gate University Law Review

This Note will discuss how the Ninth Circuit incorrectly adopted the average-audience test because the test has become overbroad in its application, is ill-equipped to deal with the issues of complex modern music, and has drifted from the fundamental purpose of copyright law. The Ninth Circuit should have adopted the intended- audience test, which looks to the reaction of those with the expertise required to understand the language of the work and more truly reflects the fundamental purpose of copyright law: the protection of the creator's market.

Mercexchange V. Ebay: Should Newsgroup Postings Be Considered Printed Publications As A Matter Of Law In Patent Litigation?, Zhichong Gu

Golden Gate University Law Review

Part I of this Note provides a brief background concerning eBay's method of doing business, its subsequent litigation with MercExchange and the applicable patent law. Part II presents relevant facts about newsgroups and other types of internet documents. Part III discusses eBay's invalidity defense used in its case against MercExchange's patents. The legal issue - whether a newsgroup posting should be considered a printed publication within the meaning of the patent statutes - arises from eBay's invalidity defense. As it turns out, the district court's ruling on this issue in MercExchange v. eBay conflicts with the relevant policy and practice …

Intellectual Property - Brookfield Communications, Inc. V. West Coast Entertainment Corp., Patricia Elizabeth Caldwell

Golden Gate University Law Review

In Brookfield Communications, Inc. v. West Coast Entertainment Corp., the United States Court of Appeals for the Ninth Circuit discusses whether trademark or unfair competition laws prohibit the use of another's trademark in its web site's domain name and metatag. The court concluded there was a likelihood of confusion between the marks. Therefore, using the mark in the web site's domain name constitutes trademark infringement. In addition, using the mark in the site's metatag created initial interest confusion.

Don't Be Cruel: Scope Of Parody Curtailed In Elvis Presley Enterprises, Inc. V. Capece, Deborah Wright

Golden Gate University Law Review

This Note explores how the Fifth Circuit limited the legal boundaries of parody in the context of trademark law. Section II provides a background of trademark law and how parody fits into a court's determination as to whether infringement has occurred. Section III presents the facts and procedural history of the case, including the district court's analysis. In Section IV, this Note examines how the Fifth Circuit Court of Appeal approached the application of parody in the trademark context. Finally, Section V discusses the severe limitation on the legal use of parody set forth by the Fifth Circuit, and offers …

Intellectual Property Law - Newcombe V. Adolf Coors Co., Nairi Chakalian

Golden Gate University Law Review

In Newcombe v. Adolf Coors Co., the United States Court of Appeals for the Ninth Circuit held that a Major League baseball pitcher, retired for over thirty years, had valid publicity infringement claims against defendants who created an advertisement using a drawing of his stance. According to the court, a material factual issue existed as to whether the drawing of the stance in the advertisement conjured up images of the pitcher, even though the pitcher's face could not be identified from the drawing, and his name did not appear anywhere in the advertisement. Thus, the court found a subtle image …

Intellectual Property Law - Kendall-Jackson Winery V. E. & J. Gallo Winery, Rema M. Titcomb

Golden Gate University Law Review

In Kendall-Jackson v. Gallo,l the United States Court of Appeals for the Ninth Circuit held that grape leaf designs on wine bottles are not protected as trademarks under the Lanham Trademark Act because of widespread use in the industry. Accordingly, the Ninth Circuit upheld the district court's decision to grant Gallo's summary judgment motion in favor of Gallo.

Intellectual Property Law - Dreamwerks Production Group, Inc. V. Skg Studio, Thomas J. Murphy

Golden Gate University Law Review

In Dreamwerks Production Group, Inc. v. SKG Studio the United States Court of Appeals for the Ninth Circuit evaluated whether the trademarks "Dreamwerks" and "Dream Works" were likely to confuse the reasonable consumer. Traditionally, a well-known, senior trademark user will sue a lesser-known, junior trademark user in order to protect its goodwill and prevent customer confusion. In Dreamwerks, however, the parties' positions were reversed, with the lesser-known, senior user, Dreamwerks Production Group, suing the better-known, yet junior user, SKG Studio. The Ninth Circuit held that, like every other new company, SKG Studio was required to select a name that would …

Intellectual Property Law - Blockbuster Videos Inc. V. City Of Tempe, Mary L. Shapiro

Golden Gate University Law Review

In a matter of first impression, the United Sates Court of Appeals for the Ninth Circuit, in Blockbuster Videos, Inc. v. City of Tempe, considered whether section 1121(b) of the Lanham Act preempts a municipality's authority to require the alteration of a federally registered trademark. Based on the plain language of the statute, the court held that a local entity may not require the alteration of a trademark to enforce a zoning ordinance, though it may prohibit the display of the trademark.

Nowhere To Run ... Nowhere To Hide: Trademark Holders Reign Supreme In Panavision Lnt'l, L.P. V. Toeppen., Scott D. Sanford

Golden Gate University Law Review

This note discusses the procedural history of Panavision. Part III surveys the evolving application of personal jurisdiction in the various courts as applied to the Internet through minimum contacts and the Calder "effects test." Part IV outlines the Ninth Circuit's analysis of personal jurisdiction in Panavision. Part V critiques the Ninth Circuit's analysis, focusing particularly on several flaws in the court's reasoning. Part VI summarizes the effect that the decision in Panavision will have on future suits involving the Internet.

An Analysis Of The Fair Use Defense In Dr. Seuss Enterprises V. Penguin, Mary L. Shapiro

Golden Gate University Law Review

This note sets forth the facts and procedural history of Dr. Seuss Enterprises v. Penguin, which is the most recent Ninth Circuit copyright decision presenting the affirmative fair use defense. Section III provides a brief background of copyright law and the fair use defense. Section III also presents a historical view of the fact-sensitive, case-by-case analysis of the four statutory fair use defense factors codified in 17 U.S.C. § 107. Section IV examines the Ninth Circuit's decision in Dr. Seuss Enterprises v. Penguin, focusing on Seuss Enterprises' copyright infringement claim. Section V critically analyzes the Ninth Circuit's holding, focusing on …

Global "Development" And Its Environmental Ramifications - The Interlinking Of Ecologically Sustainable Development And Itellectual Property Rights, Vandana Date

Golden Gate University Law Review

This Comment will examine the necessity of preserving biodiversity in general, and the specific influence of International Environmental Law (IEL) and Intellectual Property Rights (IPR) on preserving the earth's biodiversity. Additionally, this Comment focuses on the numerous problems arising from the rapid destruction of biodiversity and how application of IPR may abate these problems. Part II discusses the evolution of IEL, including the chronological development of global environmentalism and the need for further ecologically sustainable development. Part III reviews two recent treaties that provided a forum for discussing the connection between the preservation of biodiversity and IPR: the United Nations …

Internet Copyright Infringement Liability: Is An Online Access Provider More Like A Landlord Or A Dance Hall Operator?, Mary Ann Shulman

Golden Gate University Law Review

This Comment examines the issue of whether an access provider may be found liable for copyright infringement by a bulletin board subscriber. It provides a background of copyright law and policy, discusses traditional legal theories of copyright infringement liability, and analyzes a recent case that, for the first time, directly addressed the issue of an Internet access provider's liability, Religious Technology Center v. Netcom On-Line Communication Services. This Comment discusses the application of the legal principles in Fonovisa v. Cherry Auction to the potential liability of an online access provider. This Comment concludes with a critique proposing that revision of …

Intellectual Slavery?: The Doctrine Of Inevitable Disclosure Of Trade Secrets, Johanna L. Edelstein

Golden Gate University Law Review

This note will discuss the Seventh Circuit's analysis and the potential impact of the PepsiCo decision. The author will ultimately conclude that application of the inevitable disclosure theory in actions to prevent employers from working for competitors creates a substantial risk for employees, impedes their mobility, limits their options and strips them of their bargaining power. Additionally, this note will argue that general acceptance of the inevitable disclosure theory could have a serious impact on a wide range of industries, stifling the dissemination of general technical knowledge and economic growth.

Intellectual Property Law - Mai V. Peak: Should Loading Operating System Software Into Ram Constitute Copyright Infringement?, Katrine Levin

Golden Gate University Law Review

No abstract provided.

Intellectual Property Law - New Kids On The Block V. News America Publishing, Inc.: New Nominative Use Defense Increases The Likelihood Of Confusion Surrounding The Fair Use Defense To Trademark Infringemen, Derek J. Westberg

Golden Gate University Law Review

No abstract provided.

Intellectual Property - Sega Enterprises Ltd. V. Accolade, Inc.: Setting The Standard On Software Copying In The Computer Software Industry, Julie Aguilar

Golden Gate University Law Review

No abstract provided.

The Visual Artists Rights Act Of 1990: Further Defining The Rights And Duties Of Artists And Real Property Owners, Matthew A. Goodin

Golden Gate University Law Review

While eleven states have enacted legislation creating moral rights for artists, until recently there was no federal law addressing the issue. The Visual Artists Rights Act of 1990,10 which became effective June 1, 1991, creates federal moral rights for artists and contains provisions specifically covering artwork incorporated into buildings. This article will begin with a brief overview of VARA and a detailed analysis of the provisions covering artwork incorporated into buildings. The focus of the article will address the many problems concerning the rights and duties of artists and real property owners under VARA, and will propose solutions to these …