Law Commons^™

Federal Preemption Of The Right Of Publicity In Sing-Alike Cases, Leonard A. Wohl

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Willful Copyright Infringement: In Search Of A Standard, Jeffrey M. Thomas

Washington Law Review

The Copyright Act of 1976 provides for an increase in statutory damages where copyright infringement is willful. Because it is undefined in the Act, the meaning of willfulness is left to judicial interpretation. Courts have disagreed on the proper definition of willfulness and adopted tests that are vague and sometimes inconsistent with the Act's statutory damages provision. This Comment proposes an alternative to the present definitions and tests, and suggests that courts adapt a two-part willfulness test from the patent law test, which requires knowledge and an affirmative duty to investigate.

Copyright Wrong: The United States' Failure To Provide Copyright Protection For Works Of Architecture

Washington and Lee Law Review

No abstract provided.

Draft Of A Labor Theory Of Property - 1990, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court in several recent cases has flirted with the notion that labor gives one an entitlement to ownership: a legal right to bar others from the fruits of that labor or to extract payment from them if they use the fruits without permission. Sometimes articulated in terms of "natural rights," and sometimes in terms of "fairness," this notion is at apparent odds with contract law's insistence that the only "fruits of labor" one is obligated to pay for are those one has agreed in advance to buy.

Note On Deserving To Be Born - 1990, Wendy J. Gordon

Scholarship Chronologically

A full reap/sow principle, one that's unsupplemented by any entitlement for need and that extends to both harms and benefits completely, would say that one is not entitled to keep ANYTHING one fails to earn. Including sunlight. Including life itself.

Note On Deserving The Results Of Labor - 1990, Wendy J. Gordon

Scholarship Chronologically

Munzer's formulation seems to talk in the end about largely consensual arrangements, like working for wages.

Note On Types Of Corrective Justice - 1990, Wendy J. Gordon

Scholarship Chronologically

One kind of inquiry is to ask: what weight does the claim to reward have? Another is to ask: what are the built-in limits or expectations (places where the claim to reward has zero weight)?

Note On Causation And Limited Duration Of Intellectual Property; Also Patent Standards - 1990, Wendy J. Gordon

Scholarship Chronologically

Another causation problem is this: "But for" causation is only one type. It has its own problems. But there are other kinds of cause. In tort law these other kinds of cause are lumped together under the rubric "proximate cause", and the difficulties of "proximate cause" doctrine illustrate some of the difficulties.

What's The Big Idea Behind The Idea-Expression Dichotomy? -- Modern Ramifications Of The Tree Of Porphyry In Copyright Law, Amaury Cruz

Florida State University Law Review

No abstract provided.

Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chafee, Jr. and Judge Learned Hand brought a wealth of learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

Notes On Misc Re Paper: Property Preemption - 1990, Wendy J. Gordon

Scholarship Chronologically

Sears/Compco said anything not protected by patent copyright etc is not subject to state anti-copying protection. Goldstein says Sears/Compco didn't mean that exactly- rather, states can't control copying where fed statutory policies would be in conflict with the state protection. Section 102b and generations of copyright cases say ideas, systems, etc., are not copyrightable. That wd seem to suggest that even under Goldstein, ideas, etc can't be protected against state law.[1] However, a 1 iteral reading of 301 might suggest Cong decided there should be no preE of such state law protection of ideas.

Letter From Louis Michael Seidman, Louis M. Seidman

Scholarship Chronologically

Dear Wendy:

Thanks for sending me your piece on intellectual property and the restitutionary impulse. As always with your work, I found it fascinating. I'm happy to give you my comments, but I doubt that they will be very useful to you. This is an area I know nothing about, so many of my problems reflect my lack of understanding, rather than any defects in your arguments. With that caveat, and for what it is worth, here are some reactions (many of which, as you will see, are quite trivial):

The Truth May Not Set You Free, Robert M. O'Neil

Washington and Lee Law Review

No abstract provided.

Book Reviews, Thomas G. Field Jr.

RISK: Health, Safety & Environment (1990-2002)

Reviews of the following books prepared by Thomas G. Field, Jr., Editor-in-Chief of Risk:

Stephen D. Sugarman, Doing Away with Personal Injury Law, (1989).

Chet Fleming, If We can Keep a Severed Head Alive, (1988).

Notes On Economics Of Suppression - 1990, Wendy J. Gordon

Scholarship Chronologically

The Treatise suggests that the two major strains in copyright are the economic or instrumental perspective, and the authors' rights perspective. This dual perspective parallels the configuration in property and tort law as a whole, where quandaries such as the suppression problem are sometimes analyzed in terms of whether the individual holding an entitlement is a "steward" entrusted with the resource solely for sake of the social good that is likely to result from his or her productive use of it, or a "sovereign" to be left unregulated in managing the resource.

Proposed Organization And Detailed Table Of Contents - 1990, Wendy J. Gordon

Scholarship Chronologically

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from scholarly and case law developments in other areas. There were exceptions of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zcharia Chaffee Jr. and Judge Learned Hand brought a wealth of learning and a broad perspective to copyright.

Draft Of New Versus Old Authors - 1990, Wendy J. Gordon

Scholarship Chronologically

Virtually all the issues canvassed above embody the tension that exists in seeking to honor the interests of two generations of creators. For example, the essay has discussed the need for new adaptive artists to have a copyright in their own productions and the dangers that the "subconscious copying rule" poses to new creators, particularly in an age of ubiquitous media.

In The Aftermath Of Johnson And Eichman: The Constitution Need Not Be Mutilated To Preserve The Government's Speech And Property Interests In The Flag, Douglas W. Kmiec

BYU Law Review

No abstract provided.

The Territorial Scope Of Trademark Rights, William Jay Gross

University of Miami Law Review

No abstract provided.

Idea, Process, Or Protected Expression?: Determining The Scope Of Copyright Protection Of The Structure Of Computer Programs, Steven R. Englund

Michigan Law Review

Courts considering the alleged copying of the structure, rather than literal copying of the text, of a computer program have usually concerned themselves with whether protected expression or an unprotected idea was copied. Courts have seldom suggested that it might be an unprotected process that was copied. However, this Note concludes that the legislative history of the 1976 Act indicates that that legislation's drafters envisioned a far more prominent role for the process-expression dichotomy than it has played to date. The process inquiry is at least as important as the idea inquiry in striking the proper balance between promoting progress …

Alternatives To Copyright Law Protection Of Graphic Characters: The Lanham Act And Antidilution Statutes, Robert E. Anderson

UC Law SF Communications and Entertainment Journal

In an "information age" dominated by mass media entertainment, graphic characters have become increasingly valuable commodities. Federal trademark law and state antidilution statutes provide alternatives to copyright law protection of such hot properties as the "Teenage Mutant Ninja Turtles." This Essay explores how courts determine the existence of secondary meaning in characters, as well as which aspects of a character, such as a costume or nickname, may receive protection. The Essay concludes with an examination of new trends introduced by the entertainment industry and the law of unfair competition.

From Satirical To Satyrical: When Is A Joke Actionable, Sandra Davidson Scott

UC Law SF Communications and Entertainment Journal

This Article explores the often sexy landscape of satire and parody, asking the question, Has the law gone too far in denying plaintiffs recovery for satire that cannot be taken as literally true? The case of Pring v. Penthouse International provides the touchstone. The author addresses topics including Jerry Falwell's unsuccessful suit against Hustler magazine, the public figure/private person distinction, commercial appropriation of name and likeness, and the opinion/fact distinction. The Article concludes that courts show more sensitivity to commercial than personal injury and fail to appreciate that satire can damage reputations by raising suspicions that statements are based on …

Scarcity Of The Airwaves: Allocating And Assigning The Spectrum For High Definition Television (Hdtv), Janine S. Natter

UC Law SF Communications and Entertainment Journal

High Definition Television (HDTV) promises a dramatic technological advancement in the quality of video and audio television. This Note asserts that local broadcast television networks must be allocated additional space on the electromagnetic spectrum to transmit the improved signals required for a competitive HDTV system in the United States. Unless additional spectrum frequencies are allocated for broadcast television, the spectrum presently allocated may be insufficient to satisfy all applicants. Therefore, a scheme must be developed to determine which applicants will be granted the right to use any additional frequencies. The author discusses various methods of assigning the spectrum and proposes …

U.S. Communications Policymaking: Who & (And) Where, Mark S. Nadel

UC Law SF Communications and Entertainment Journal

The author describes the major communications policy forums and provides a directory of the principal individuals and organizations involved in creating the agendas of the forums and other major participants. The Directory covers federal, state, and some local government bodies, and key international communications forums. The Directory also lists academic research centers, policy journals, major conferences and seminar programs, foundations, and advocacy groups.

California V. Fcc: A Victory For The States, Ann E. Rendahl

UC Law SF Communications and Entertainment Journal

In California v. FCC, the Ninth Circuit invalidated the FCC's Computer III Order, a regulatory scheme that changed the method of regulating enhanced services. This Note evaluates the FCC's Computer III Order, focusing on the history of the computer inquiries and the ensuing policy debate between the FCC and state regulatory commissions. The Note analyzes the case law concerning the FCC's preemptive power under the Communications Act of 1934, including the U.S. Supreme Court's decision in Louisiana Public Service Commission and succeeding court of appeal decisions. The author describes the parties' arguments in California v. FCC, explains the Ninth Circuit's …

Pharmaceuticals And Intellectual Property: Meeting Needs Throughout The World, Thomas G. Field Jr.

Law Faculty Scholarship

To the extent that most people think about patents and other forms of intellectual property at all, they tend to be aware that the owners of such property may have the legal capacity to limit market entry--without fully appreciating the extent to which products or processes that can be easily copied might otherwise be unavailable. Focusing on their function in recouping risk capital, this article will survey the types and functions of intellectual property. Then it will attend to the situation in developing countries, particularly the role of intellectual property in meeting their needs for medical products.

Notes Of Reference To The Common Law, Wendy J. Gordon

Scholarship Chronologically

Also, when one looks at the common law, one finds throughout an attempt to protect persons who change position in reliance on other's actions from being harmed by such persons' withdrawal; similarly, the common law gives a great deal of protection from harm even when the parties have had no prior dealings.

Draft Of Toward A Jurisprudence Of Benefits: The Norms Of Copyright And The Problem Of Private Censorship - 1990, Wendy J. Gordon

Scholarship Chronologically

For many years copyright was a backwater of the law. Perceived as an esoteric and narrow field beset by hypertechnical formalities, the discipline and its practitioners were largely isolated from developments in scholarship and case law in other areas. There were exceptions, of course. Well before the explosion of intellectual property litigation in the last twenty years, persons such as Zechariah Chaffee, Jr. and Judge Learned Hand brought learning and broad perspective to copyright. But by and large copyright looked only to itself for guidance.

Notes On Lear V. Adkins And Kewanee: "Public Domain" And "Dissemination", Wendy J. Gordon

Scholarship Chronologically

What is the S ct s notion of public domain? Does dissemination play the same role I thinK it should? Here s a looK at patent pol icy. Basically, I think the following shows that the Supreme Court envisages that there s a separate policy which says that things once made public should stay public. Now d tie that to reliance & changes of position. The court doesn t think it through very well; they may have power in mind, or vesting, or just precedent. It s unclear. But it s useful for my purposes that the Court opinion suggests …

Canada, Copyright, Computers: Impact And Analysis In An International Perspective Or From Gutenberg To Uruguay: Protecting The Soul Of A New Machine, 10 Computer L.J. 265 (1990), Peter Heeseok Kang

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.