Law Commons^™

Fame: Ownership Implications Of Intellectual Property And Agency Law, Max Stul Oppenheimer

Fordham Intellectual Property, Media and Entertainment Law Journal

In the pre-internet era, it was difficult to reach a wide audience without the help of a professional organization, so as a practical matter control typically rested with distributors rather than with talent. Now that direct public distribution is easy and inexpensive, distributors’ practical control has greatly diminished, and it is therefore important to consider the legal principles that govern the control of the use of “fame.” This Article defines fame as a bundle of intellectual property rights and analyzes the ownership of those rights under intellectual property and agency theories.

Down The Rabbit Hole: Applying A Right To Be Forgotten To Personal Images Uploaded On Social Networks, Eugenia Georgiades

Fordham Intellectual Property, Media and Entertainment Law Journal

The right to be forgotten has been the subject of extensive scrutiny in the broad context of data protection. However, little consideration has been given to the misuse of personal images that are uploaded on social networks. Given the prevalent use of online and digital spaces, social networks process and use various forms of data, including personal images that are uploaded by individuals. The potential for misuse of images is particularly acute when users upload images of third parties. In light of the European Union’s enshrinement of the “right to be forgotten” amid provisions of the General Data Protection Regulation …

Bounty Hunters For Algorithmic Cartels: An Old Solution For A New Problem, Aleksandra Lamontanaro

Fordham Intellectual Property, Media and Entertainment Law Journal

In light of the reality that pricing algorithms allow commercial actors to perform all phases of their price-fixing conspiracies without leaving behind trails of traditional incriminating evidence, the scarcity of algorithmic cartels prosecutions is hardly surprising. Given well-documented evidence that the authorities struggle in their efforts to detect even conventional price-fixing cartels, it is imperative to come up with new tools for detecting algorithmic cartels, which have unprecedented potential to harm consumers if left ignored. This Note investigates algorithmic capabilities to collude, as well as legal and technical challenges that governmental authorities face in confronting such collusion. This Note then …

Fiddling With Federal Circuit Precedent: The Commercial And Qualitative Impact Of Recent Supreme Court Reversals On The U.S. Patent System, Christopher J. Hamersky

Fordham Intellectual Property, Media and Entertainment Law Journal

Prior to 2006, the Court of Appeals for the Federal Circuit enjoyed a fairly laissez-faire relation with the Supreme Court of the United States, enabling it to develop a patent law jurisprudence that patent practitioners could confidently rely on given that it had remained relatively stable for several decades. However, in 2006, the Supreme Court reviewed eBay v. MercExchange and subsequently began a string of frequent Federal Circuit reversals that have caused significant change to the U.S. patent system. Whereas the Supreme Court rarely took up patent appeals in the Federal Circuit’s early history, it now routinely reviews patent questions …

January 2020 - June 2020 Fordham Law School Faculty Bibliography, Fordham Law School Library

Faculty Bibliography

No abstract provided.

Double Jeopardy: Patents Of Invention As Contracts, Invention Disclosure As Consideration, And Where Oil States Went Wrong, N. Scott Pierce

Fordham Intellectual Property, Media and Entertainment Law Journal

Patents in England were once favors granted by the King with the requirement that the subject matter be practiced, or worked, for the benefit of the public. However, by the late eighteenth century patents were viewed as contracts with the government. Concomitant with this shift, the requirement to practice an invention was replaced by submission of a written specification disclosing to the public how to work the subject matter of the patent. In essence, advancement of the public good by grant of an exclusionary right to practice an invention at royal discretion was substituted with public disclosure as consideration for …

Navigating A Risk-Filled Sea: Insights On How The Law And Insurance Chart A Course By Allocating Liabilities And Creating Incentives, Stephen M. Shapiro

Fordham Journal of Corporate & Financial Law

Risk can be defined as the probability and extent of liability. Risk management involves identifying, evaluating, and minimizing liabilities, which is critical to the success of a wide range of enterprises. Managers often turn to insurance to reallocate risk, and to experts such as surveyors, engineers, attorneys, and accountants to identify and evaluate risks and to advise on how to reduce them. The law also ascertains, allocates, and liquidates liabilities, and affects how insurance reallocates them. Policymakers-both industrial and legal-must be aware of how industry practices, expert services, insurance provisions, and legal structures are intertwined to achieve diverse, and perhaps …

Halliburton Ii At Four: Has It Changed The Outcome Of Class Certification Decisions?, Noah Weingarten

Fordham Journal of Corporate & Financial Law

The U.S. Supreme Court's decision in Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (Halliburton II) appeared to give corporate defendants a new tool to defeat class certification in the context of securities fraud class action litigation: rebutting the requisite presumption of reliance by showing a lack of "price impact"-a term that Halliburton II used to describe whether the price of an allegedly affected company's stock went up or down. However, based on an empirical study of pre- versus post-Halliburton II class certification decisions, it appears that the outcomes of class certification decisions have become even …

Fashion's Destruction Of Unsold Goods: Responsible Solutions For An Environmentally Conscious Future, Ariele Elia

Fordham Intellectual Property, Media and Entertainment Law Journal

Over the past two years, headlines of fast-fashion and luxury brands burning their merchandise have flooded media outlets. While this came as a shock to the general public, it has actually been a standard industry practice for decades. As societal norms are leaning more towards environmentally conscious practices, destroying unsold products is no longer viewed as an acceptable option. Brands are facing increased scrutiny related to their environmental impact—such as the amount of textile waste that ends up in a landfill—and how they address the issue. While the media have criticized brands for these practices, they have not suggested long-term …

An Instance Of Open Hardware: A Different Approach To Free And Open Source Hardware Licensing, Timothy Murphy

Fordham Intellectual Property, Media and Entertainment Law Journal

As open source software (“OSS”) has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License (“GPL”), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well-known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of the …

The New Cybersquatters: The Evolution Of Trademark Enforcement In The Domain Name Space, Michael Karanicolas

Fordham Intellectual Property, Media and Entertainment Law Journal

The domain name space has become a particularly contentious area of trademark enforcement as a result of the growth of online commerce, an intense competition for popular domain names, and new conceptual challenges stemming from the borderless and textual nature of the medium. In response, the Internet Corporation for Assigned Names and Numbers (“ICANN”), a global non-profit which oversees the domain-name space, has implemented a highly sophisticated set of rights-protection mechanisms. This Article examines the scope of trademark protections applied under ICANN’s rights protection mechanisms to demonstrate that they have evolved far beyond their traditional consumer protection function; indeed, they …

The Regulation Of Cryptocurrencies: Between A Currency And A Financial Product, Hadar Y. Jabotinsky Dr.

Fordham Intellectual Property, Media and Entertainment Law Journal

Cryptocurrencies are electronically generated and stored currencies by which users can trade either real or virtual objects with one another. As these digital assets gain popularity, the issue of how to regulate them becomes more pressing. Cryptocurrencies are attractive due in part to their decentralized, peer-to-peer structure. This makes them an alternative to national currencies which are controlled by central banks. Given that these cryptocurrencies are already replacing some of the “regular” national currencies and financial products, the question then arises—should they be regulated? And if so, how? This paper draws the legal distinction between cryptocurrencies which are in fact …

Should The Ncaa Have To Pay? Long-Term Injuries In College Athletics, Improper Assumptions Of Risk, And Coverage Of Medical Expenses After College, Alexandrea Jacinto

Fordham Intellectual Property, Media and Entertainment Law Journal

Student-athletes spend years training, perfecting their sport, and working hard in school in order to make it to the big leagues: Division I College Athletics. However, when student-athletes finally get there, they are met with empty promises, and often leave with injuries that no one took the time to warn them about. That is because, despite being told that they must sign an agreement with the National Collegiate Athletic Association (“NCAA”) which binds them to the organization’s rules, athletes learn quickly that the other side of that agreement is rarely, if ever, upheld when they need it. Courts fail to …

Movements, Moments, And The Eroding Antitrust Consensus, Michael Wolfe

Fordham Intellectual Property, Media and Entertainment Law Journal

Timothy Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018). $14.99.

Timothy Wu’s book, The Curse of Bigness, offers a brief history on and critical perspective of antitrust law’s development over the last century, calling for a return to a Brandeisian approach to the law. In this review-essay, I use Wu’s text as a starting point to explore antitrust law’s current political moment. Tracing the dynamics at play in this debate and Wu’s role in it, I note areas underexplored in Wu’s text regarding the interplay of antitrust law with other forms of …

Selecting Scrutiny In Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape Of A Strict Scrutiny World After Becerra And Janus, And A First Amendment Interests-And-Values Alternative, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in …

Newman/Martoma: The Insider Trading Law's Impasse And The Promise Of Congressional Action, Tai H. Park

Fordham Journal of Corporate & Financial Law

The prohibition against insider trading is a judge-made law that has evolved for over fifty years, and has reached a critical impasse in two recent decisions in the Second Circuit Court of Appeals: United States v. Newman and United States v. Martoma. Judges of the Second Circuit are sharply divided over what conduct constitutes improper trading on material nonpublic information (“MNPI”), leaving the law in profound disarray. At bottom, the disagreement stems from a decades-old split within the judiciary about how to (1) ensure a fair securities marketplace, while (2) enabling institutional analysts to probe for corporate information in furtherance …

Multilateral Transparency For Security Markets Through Dlt, David C. Donald, Mahdi H. Miraz

Fordham Journal of Corporate & Financial Law

For decades, changing technology and policy choices have worked to fragment securities markets, rendering them so dark that neither ownership nor real-time price of securities are generally visible to all parties multilaterally. The policies in the U.S. National Market System and the EU Market in Financial Instruments Directive— together with universal adoption of the indirect holding system— have pushed Western securities markets into a corner from which escape to full transparency has seemed either impossible or prohibitively expensive. Although the reader has a right to skepticism given the exaggerated promises surrounding blockchain in recent years, we demonstrate in this paper …

Reconciling U.S. Banking And Securities Data Preservation Rules With European Mandatory Data Erasure Under Gdpr, Ronald V. Distante

Fordham Journal of Corporate & Financial Law

United States law, which requires financial institutions to retain customer data, conflicts with European Union law, which requires financial institutions to delete customer data on demand. A financial institution operating transnationally cannot comply with both U.S. and EU law. Financial institutions thus face the issue that they cannot possibly delete and retain the same data simultaneously. This Note will clarify the scope and nature of this conflict.

First, it will clarify the conflict by examining (1) the relevant laws, which are Europe’s General Data Protection Regulation (GDPR), the U.S. Bank Secrecy Act, and Securities and Exchange Commission (SEC) regulations, (2) …

The Role Of Intent In The Rise Of Individual Accountability In Aml-Bsa Enforcement Actions, Tyler Halloran

Fordham Journal of Corporate & Financial Law

The statutory framework which prohibits individuals at financial institutions from engaging in money laundering attributes criminal or civil liability on the basis of an individual’s culpability with respect to the prohibited conduct. A recent Department of Justice policy shift has begun to place a greater focus on the prosecution of individuals within corporations. This shift has led to increased prosecutions of compliance personnel and bank officials in recent years.

Through analysis of recent cases, this Note seeks to explore how the requirement of intentional and/or willful conduct defines the potential for criminal and/or civil exposure for compliance personnel and bank …

Is Baseball Shrouded In Collusion Once More? Assessing The Likelihood That The Current State Of The Free Agent Market Will Lead To Antitrust Liability For Major League Baseball's Owners, Connor Mulry

Fordham Journal of Corporate & Financial Law

This Note examines how Major League Baseball’s (MLB) current free agent system is restraining trade despite the existence of the league’s non-statutory labor exemption from antitrust. The league’s players have seen their percentage share of earnings decrease even as league revenues have reached an all-time high. This reality is due to the players’ inability to “cash-in” when their market value hits its apex. Once these players enter the open market, their value has greatly deteriorated and consequently, they are unable to generate earnings commensurate with their value to the league.

This Note first explores the progression of MLB’s exemption from …

The Lawyer, The Engineer, And The Gigger: § 199a Framed As An Equitable Deduction For Middle-Class Business Owners And Gig Economy Workers, Andrew L. Snyder

Fordham Journal of Corporate & Financial Law

Section 199A of the Tax Cuts and Jobs Act provides owners of noncorporate, pass-through businesses such as sole proprietorships, partnerships, and S corporations-as well as independent contractors and certain trusts-with an unprecedented deduction of up to 20 percent of "qualified business income." But the statute draws distinctions between industries and professions, thus creating inequities without a well-articulated policy rationale. Section 199A's critics have called for the provision's repeal entirely, citing efficiency and equity concerns. But Congress should not repeal section 199A or allow it to sunset in 2025. The provision can potentially provide tax relief to gig economy workers, for …

The Layers Of Digital Financial Innovation: Charting A Regulatory Response, Teresa Rodriguez De Las Heras Ballell

Fordham Journal of Corporate & Financial Law

The increasing penetration of digital technologies in financial markets is evidenced by promising adoption rates among users, expanding presence of fintech firms and bigtech providing techfin services, and the growing use of fintech solutions by incumbents. The increasingly popular term "fintech" captures the accelerated transformation of contemporary financial markets driven and enabled by technology, and encapsulates its multifarious potential impact on services, market structures, and business models. This Article first aims to devise and propose an analytical framework to understand the digital challenges to financial regulation based on the "layers of digital financial innovation" theory. Accordingly, digital innovation (fintech) is …

Framing Regulation Around The Potential Liabilities Of Parties In The Blockchain & Smart Contract Industry, Jeceaca An

Fordham Journal of Corporate & Financial Law

Blockchains, which have been most significantly utilized by the technology, media, and telecommunication industry (TMT) and the financial sector, amassed global attention in the 2010s. This surging popularity may, however, cause the public to overlook the core characteristics of blockchain technology, and to consequently be unaware of the inherent risks at play when engaging with blockchains. Simply put, blockchain technology is an information storing technology that can be utilized in various ways, such as services to facilitate cryptocurrency exchanges and smart contracts. The recent widespread use of blockchain technology by unique parties has raised questions of how to deal with …

Global Investor Protection: Securities Law Enforcement Around The World, Matthew Diller, Martin Gelter, Eugenio J. Cardenas, Merritt B. Fox, Geoffrey Jarvis, Pierre-Henri Conac, Todd Cosenza, Jill Fisch, Yuliya Guseva, Elad Roisman, Sean Griffith

Fordham Journal of Corporate & Financial Law

No abstract provided.

Willfulness In A Post-Robare World: Evidence Of Subjective Intent, Not Negligence Conduct, Is Needed To Show Willful Violations Of Securities Laws, Kevin Aguirre

Fordham Journal of Corporate & Financial Law

The D.C. Circuit's holding in Robare Group, Ltd., v. SEC, potentially marks the end of at least twenty years of permissive judicial interpretation of the term "willful," as found in various provisions of securities laws-including the Investment Advisers Act of 1940. Traditionally, willful violations of securities laws only required evidence that defendants were aware of their conduct, not that they knew that their conduct was unlawful. This low burden of proof operates in practice as a negligence standard. However, Robare makes a key distinction between evidence of negligent conduct and "subjectively intentional" violations under section 207 of the Advisers Act …

Are Securities Laws Effective Against Climate Change? A Proposal For Targeted Climate Related Disclosure And Ghg Reduction, Nate Chumley

Fordham Journal of Corporate & Financial Law

The New York Attorney General filed a lawsuit against Exxon Mobil on October 24, 2018, claiming the company committed securities fraud in order to prop up the value of the company by publicly disclosing a higher proxy cost—or projected future cost—of climate change regulation than the internal cost used. Following this lawsuit, a federal class action was filed utilizing the same legal theory on the same facts. These lawsuits should be viewed as part of the larger history of lawsuits against large fossil fuel companies for climate change-related harms. Public nuisance theory largely captured a set of lawsuits against these …

The Case For Accountability & Transparency: How Corporate Asset Forfeiture Creates A Conflict Of Interest, Tiffany J. Klinger

Fordham Journal of Corporate & Financial Law

Asset forfeiture is a tool used by law enforcement to seize property or profits related to criminal activity. Due to the public's growing distain of asset forfeiture, congressional and state reform has attempted to curtail the use of civil asset forfeiture over the past twenty years. However, little attention has been given where asset forfeiture is used against corporations. This Note sheds light as to how asset forfeiture is used against the organizational defendant and makes the following observations: First, asset forfeiture is a powerful tool in corporate criminal proceedings; however, forfeiture lacks the procedural restraints that are placed on …

Creation, Destruction, And The Future Of Fashion, Susan Scafidi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Fashion(Ing) A Political Statement: A Review Of The Legal & Social Issues That Arise From Banned Political Clothing And Other Controversial Fashion Items In Light Of The U.S. Supreme Court’S Decision In Minnesota Voters Alliance V. Mansky, Joyce Boland-Devito

Fordham Intellectual Property, Media and Entertainment Law Journal

Does the U.S. Supreme Court believe that the Free Speech Clause of the First Amendment includes freedom of expression in our clothing? The answer is yes! This Article will show that fashion can make a strong political statement (or misstatement) in the court of law as demonstrated by the U.S. Supreme Court’s recent decision striking down Minnesota’s ban on wearing “political apparel” to vote in Minnesota Voters Alliance v. Mansky. The discussion of this case will include quotes from J. David Breemer, Esq., the attorney who represented the Minnesota Voters Alliance. This Article will examine related U.S. Supreme Court …

Ai-Generated Fashion Designs: Who Or What Owns The Goods?, Caen A. Dennis

Fordham Intellectual Property, Media and Entertainment Law Journal

As artificial intelligence (“AI”) becomes an increasingly prevalent tool in a plethora of industries in today’s society, analyzing the potential legal implications attached to AI-generated works is becoming more popular. One of the industries impacted by AI is fashion. AI tools and devices are currently being used in the fashion industry to create fashion models, fabric designs, and clothing. An AI device’s ability to generate fashion designs raises the question of who will own the copyrights of the fashion designs. Will it be the fashion designer who hires or contracts with the AI device programmer? Will it be the programmer? …