Law Commons^™

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

William & Mary Law Review

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Creativity Without Ip? Vindication And Challenges In The Video Game Industry, Bj Ard

Washington and Lee Law Review

This Article intervenes in the longstanding debate over whether creative production is possible without exhaustive copyright protection. Intellectual property (IP) scholars have identified “negative spaces” like comedy and tattoo art where creativity thrives without IP, but critics dismiss these examples as niche. The video game industry allows for fresh headway. It is now the largest sector in entertainment—with revenues greater than Hollywood, streaming, and music combined—yet IP does not protect key game elements from duplication. Participants navigate this absence using non-IP strategies like those identified in negative-space industries: AAA developers invest in copy-resistant features while indie game developers rely on …

Letting Anarchy Loose On The World: The Anarchist Cookbook And How Copyright Fails The Author, Debora Halbert

Akron Law Review

The Anarchist Cookbook by William Powell remains one of the most controversial books in print, even 50 years after its first publication. The story to be told about its ongoing publication can teach us about the politics of authorship, ownership, publication, copyright assignments, the public domain, and the legacies our printed words leave behind. Later in life Powell regretted publishing the book and wished that it would be removed from publication and circulation but stated that he did not own the copyright and so could not control the book. However, even at his death the book remained in print and …

A Potential Status Update For The Visual Artists Rights Act: The Role Of Social Media Response In Judicial Analysis Of Recognized Stature, Olivia Calamia

St. John's Law Review

(Excerpt)

In 2020, visual artists used the power and reach of social media platforms to share works of art inspired by the Black Lives Matter movement, which experienced renewed vigor following the police murder of George Floyd on May 25, 2020. Many of these works have taken the form of murals painted on city streets, building faces, and other spaces that promote public viewing. Many artists hope that their works will endure long past this moment of social and political reckoning. Manhattan based artist Amir Diop expressed his wishes simply but eloquently: “My hope is that [my art] is a …

Are Cryptopunks Copyrightable?, Brian L. Frye

Pepperdine Law Review

Larva Labs’ 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 …

Protecting Fair Use From Algorithms, Internet Platforms, And The Copyright Office: A Critique Of The § 512 Study, Mary Kate Sherwood

St. John's Law Review

(Excerpt)

In 1994, the Supreme Court of the United States held that a musical group’s parody of a well-known song could be fair use, which is a noninfringing use of copyrighted content. In 2006, the Second Circuit found that an artist’s use of copyrighted photographs in his own artwork constituted fair use. In 2016, the Ninth Circuit found that a video of a child dancing to a short clip of a copyrighted Prince song could be fair use. But in 2022, a creator who attempts to share her fair use of copyrighted material online may not have recourse to the …

"Stronger" Together: Kanye Could Have Owned His Masters By Engaging In Collective Bargaining, L. Camille Cordova

Pepperdine Dispute Resolution Law Journal

Because the legislature and judiciary have failed to protect recording artists’ interests, this article proposes that engaging in collective bargaining will re-balance the bargaining positions of the major record labels and recording artists to create a mutually beneficial agreement that gives recording artists a termination of rights clause that mirrors section 203 of the 1976 Copyright Act. By contracting with a major record label, recording artists are automatically eligible for union membership to the Screen Actors Guild-American Federation of Television and Radio Artists union (“SAG-AFTRA”), who have experience negotiating other collective-bargaining agreements with these record labels. This agreement would provide …

“Sorry,” But I Didn’T Release It: How The Court’S Analysis Of The Fair Use Doctrine In Chapman V. Maraj Protects Innovation And Creativity In The Music Industry, Samantha Ross

University of Miami Business Law Review

The fair use doctrine is an important affirmative defense to copyright infringement when a particular use does not interfere with copyright law’s primary goal of promoting creativity for the public good. Artists and songwriters frequently experiment with copyrighted music without permission before seeking licensing approval from the original rights holders to “sample” or “replay” the work. In Chapman v. Maraj—a copyright infringement suit brought by Tracy Chapman against Nicki Minaj—the United States District Court for the Central District of California held that experimenting with a copyrighted musical composition for the purpose of creating a new work with an intent to …

Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly

Journal of Intellectual Property Law

The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …

The Chinese Copyright Dream, Sean A. Pager, Eric Priest

Pepperdine Law Review

Chinese President Xi Jinping’s vision of the “Chinese Dream” has captured the popular imagination. As a slogan, the Chinese Dream is intentionally broad. Intended to inspire rather than prescribe, it captures diverse aspirations including dreams of material prosperity, environmental sustainability, national rejuvenation, and global leadership. The Dream’s ramifications continue to ricochet through state policy echelons and lend themselves to competing interpretations. In that spirit, we advance a modest suggestion: that the Chinese Dream should be, at least in part, a dream about copyright law. A more effective copyright system would bolster China’s creative industries, generating a diverse supply of high-quality …

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Pepperdine Law Review

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu

Pepperdine Law Review

In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This Amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent Amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process. This Article begins by mapping the long and winding road …

Thieves In The Temple: The Scandal Of Copyright Registration And African- American Artists, Kevin J. Greene

Pepperdine Law Review

Copyright registration is the currency of copyright transactions in music, film, and television and is essential for pursuing infringement claims and ownership disputes. Despite copyright registration’s outsized reach across the copyright spectrum and importance to the copyright industries, the U.S. Copyright Office does not verify claims of copyright authorship or ownership. No express mechanism exists to challenge false copyright registrations in the Copyright Office, and the penalties for falsely claiming copyright authorship are paltry in comparison to the potential gains. This Article contends that lax copyright registration standards call into question the legitimacy of the registration system and that the …

Copyright's Deficit: Technology, Modern Consumer Preferences, And The Music Marketplace, Taylor A. Collins

Pace Intellectual Property, Sports & Entertainment Law Forum

While it is clear, and arguably has been for the last five years, that paid subscription streaming is the future of the music industry, the law has failed to keep pace with “modern consumer preferences and technological developments in the music marketplace.” The Music Modernization Act of 2018 (MMA), which amends the U.S. copyright law, 17 U.S.C., is Congress’s effort to keep pace with the music industry by fixing our cumbersome and inefficient music licensing system. The MMA is a step in the right direction, but it falls short of Congress’s goal. Focusing on Title I of the MMA—the Music …

Overdressed & Underprotected: The Not-So Glamorous Side Of The United States Fashion Industry Without Explicit Copyright Protection, Anna Huttner

Cleveland State Law Review

The complexity of fashion designs goes far beyond what is currently trending in Vogue. Intellectual property laws should seek to provide designers with an opportunity to completely protect their work, as well as ensure that fashion designers’ designs will not be replicated and sold for a fraction of the price. Inherent limitations with alternate forms of intellectual property protection emphasize the need for a bright-line rule for copyright protection over fashion designs. To best protect new designers and small brands within the U.S. fashion industry, there must be a standard that explicitly includes and defines accessibility to copyright protection …

Muddy Waters: Fair Use Implications Of Google Llc V. Oracle America, Inc., Gary Myers

Northwestern Journal of Technology and Intellectual Property

Ooh

In the muddy water we’re falling

Ooh In the muddy water we’re crawling

Holds me down

Hold me now

Sold me out

In the muddy waters we’re falling

— Laura Pergolizzi (LP) - “Muddy Waters,” Lost On You (Vagrant Records 2016)

The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately …

A Musical Cue For Fashion: How Compulsory Licenses And Sampling Can Shape Fashion Design Copyright, Caroline Olivier

Northwestern Journal of Technology and Intellectual Property

The fashion industry is the Wild West of intellectual property law. Fashion design protection is essentially non-existent, and designers take what they want when they want in the form of inspiration or complete copying. As technology advances and enables fashion designs to disseminate at high-tech speeds, there is no longer room for an apathetic approach to fashion intellectual property. If the law is a means for protecting the hard work of up-and-coming artists and providing incentives for innovation, changes must be made.

This note demonstrates how the fashion industry can adopt a copyright and licensing scheme similar to that of …

Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson

William & Mary Law Review

Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.

In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …

A Modern Reconceptualization Of Copyrights As Public Rights, Matthew L. Pangle

Vanderbilt Journal of Entertainment & Technology Law

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles-—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights. …

Technologies Of Servitude Understanding Firmware Tpms As Interests In Personal Property, Anthony D. Rosborough

Canadian Journal of Law and Technology

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks …

Justice Breyer And Intellectual Property Law

Marquette Intellectual Property & Innovation Law Review

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When Love Ends: The Division Of Copyright Between Spouses

Marquette Intellectual Property & Innovation Law Review

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When Copyright Law Meet Anonymous Street Art, Breanna M. Moe

Marquette Intellectual Property & Innovation Law Review

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