Open Access. Powered by Scholars. Published by Universities.®
- Institution
Articles 1 - 13 of 13
Full-Text Articles in Law
Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach
Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach
Faculty Scholarship
¶Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.¶ ¶This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler's breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The …
Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet
Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet
U.S. Supreme Court Briefs
No abstract provided.
Unauthorized Televised Debate Footage In Political Campaign Advertising: Fair Use And The Dmca, Susan Park
Unauthorized Televised Debate Footage In Political Campaign Advertising: Fair Use And The Dmca, Susan Park
Management Faculty Publications and Presentations
No abstract provided.
Fair Use And Education: The Way Forward, Peter Jaszi
Fair Use And Education: The Way Forward, Peter Jaszi
Articles in Law Reviews & Other Academic Journals
The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …
You Can’T Go Home Again: The Righthaven Cases And Copyright Trolling On The Internet, Ian Polonsky
You Can’T Go Home Again: The Righthaven Cases And Copyright Trolling On The Internet, Ian Polonsky
Kernochan Center for Law, Media, and the Arts
In the Norwegian folktale Three Billy Goats Gruff, three goats seeking to get fat on the greener pastures of a distant hillside were stopped at the foot of a bridge by a “great ugly troll, with eyes as big as saucers, and a nose as long as a poker.” The troll allowed the first two goats to pass when they assured him of a larger goat to come. Unfortunately, the troll bit off more than he could chew: the third goat was larger than the troll and not the least bit intimidated. The goat launched himself at the troll …
Confusion Isn't Everything, Mark Mckenna, William Mcgeveran
Confusion Isn't Everything, Mark Mckenna, William Mcgeveran
Journal Articles
The typical shorthand justification for trademark rights centers on avoiding consumer confusion. But in truth, this encapsulation mistakes a method for a purpose: confusion merely serves as an indicator of the underlying problems that trademark law seeks to prevent. Other areas of law accept confusion or mistake of all kinds, intervening only when those errors lead to more serious harms. Likewise, every theory of trademark rights considers confusion troubling solely because it threatens more fundamental values such as fair competition or informative communication. In other words, when it comes to the deep purposes of trademark law, confusion isn’t everything. Yet …
The Concept Of 'Harm' In Copyright, Wendy J. Gordon
The Concept Of 'Harm' In Copyright, Wendy J. Gordon
Faculty Scholarship
This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …
Google Books: Game, Set, But Not Match, James Gibson
Google Books: Game, Set, But Not Match, James Gibson
Law Faculty Publications
It’s back: Google Books, our favorite topic in this Intellectual Property Viewpoints series. Google Books is the project through which Google has brought its search capability to the text of more than 20 millions books (with the number still growing). To do so, Google must scan the book and convert the scan to readable text. And there’s the problem: Scanning is copying, and copying raises the question of whether the massive project is a massive violation of the copyrights in all those books. Thus the Authors Guild v. Google class action brought by authors and publishers against Google in a …
Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman
Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman
All Faculty Scholarship
In this essay prepared for the University of Pennsylvania’s conference on Intellectual Property and the Common Law, I build upon my work on custom and intellectual property. I focus here on one important facet of the subject — how longstanding common law principles should inform our understanding of custom. The common law provides a number of lessons on how to appropriately limit the consideration of custom in intellectual property law and elsewhere. The essay begins by considering the traditional role of custom in the common law. Part II then examines several of the ways that courts have incorporated custom into …
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich
Faculty Scholarship
The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …
Judges As Bad Reviewers: Fair Use And Epistemological Humility, Rebecca Tushnet
Judges As Bad Reviewers: Fair Use And Epistemological Humility, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a …
Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet
Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet
Georgetown Law Faculty Publications and Other Works
Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …
Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark Mckenna
Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark Mckenna
Journal Articles
This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.