Law Commons^™

Substantial Similarity And Junk Science: Reconstructing The Test Of Copyright Infringement, Robert F. Helfing

Fordham Intellectual Property, Media and Entertainment Law Journal

As the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.

Tear Down This Wall?: The Destruction Of Sanctioned Street Art Under U.S. And Italian Law, Sara Rosano, Birgit Kurtz

Fordham Intellectual Property, Media and Entertainment Law Journal

The United States and Italy are important countries for art and artists, including “street art”—also known as “aerosol art.” How does the law treat street artists in the two countries? Specifically, what are the legal consequences if an artist creates aerosol art on a wall or building with the property owner’s permission, and the property owner tears down the wall or building, thus destroying the artwork? In the United States, the 2018 decision in the 5Pointz case provided a detailed analysis of the applicable law; the court found in favor of a group of aerosol artists against the property owner. …

Caveat Vendor: A Call To Reform The Scope Of Rights Of Withdrawal For Off-Premises Contracts Under U.S. Consumer Protection Laws With Respect To The Auction Of Art, Sarah Fabian Maramarosy

Fordham Intellectual Property, Media and Entertainment Law Journal

As sales of art at auction become increasingly popular and accessible, an overlooked consumer right may cause sellers of art to get “burned.” At its core, the auction process is intended to establish the price of a difficult-to-value object of art, therefore, the underlying philosophy of an auction is that sales are final. However, cooling-off rules in U.S. off-premises contracts are broad enough that auction house contracts can potentially fall within the ambit of these rules, giving rise to the consumer’s right to cancel the contract.

Arguably, permitting consumers to cancel in remorse undermines the premise of an auction and …

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

The Prison Of Convenience: The Need For National Regulation Of Biometric Technology In Sports Venues, Kirsten Flicker

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, biometric data has crept its way into sports venues. In 2015, Major League Baseball began to use fingerprinting at stadium entrances. More recently, reporters have alerted spectators to the use of facial recognition technology in arenas such as Madison Square Garden. Proponents of these developments insist that the technology conveniences spectators, increases venue security, and enhances the overall spectator experience. Yet these claims fail to take into account the possibility of irremediable data breaches, the inaccuracies in facial recognition technology, and the privacy and unfair and deceptive trade practice concerns this technology raises. Further, there is an …

The All Substantial Rights Doctrine: A Second Look, Mark J. Abate, James Breen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Vigilance In The Twenty-First Century: An Update, Peter S. Sloane

Fordham Intellectual Property, Media and Entertainment Law Journal

The trademark laws impose a duty upon brand owners to be vigilant in policing their marks, lest they be subject to the defense of laches, a reduced scope of protection, or even death by genericide. Before the millennium, it was relatively manageable for brand owners to police the retail marketplace for infringements and counterfeits. The Internet changed everything.

In ways unforeseen, the Internet has unleashed a tremendously damaging cataclysm upon brands—online counterfeiting. It has created a virtual pipeline directly from factories in China to the American consumer shopping from home or work. The very online platforms that make Internet shopping …

Fre-Bird: An Evidentiary Tale Of Two Colliding Copyrights, Daniel Abowd

Fordham Intellectual Property, Media and Entertainment Law Journal

Sound recordings are not musical compositions. Sound recordings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evaluating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments?

Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: …

Protectable “Art”: Urinals, Bananas, And Shredders, Richard H. Chused

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative souls have long played with our imaginations, as well as our tastes, about what art may be. The resulting absurdist, dada, and everyday object art forces us to step back and ask a few intellectual property questions about what this art has done, undone, or reconstructed in the copyright world. The Copyright Act grants protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This Article explores how pranksterism, eccentricity, …

Pain Mismanagement: The Opioid Problem In The Nfl, Dylan Mcgowan

Fordham Intellectual Property, Media and Entertainment Law Journal

In 2014 and 2015, two groups of former National Football League (“NFL”) players brought lawsuits against the NFL for its handling and distribution of opioids and other dangerous painkillers. While neither lawsuit has succeeded in its goal of addressing the painkiller problem, they brought to light the broken pain management culture of the NFL and the health risks these medications pose to both active and former players. Addressing the opioid problem should be a top priority for the NFL and the National Football League Players’ Association (“NFLPA”). This Note examines the pain management crisis in the NFL, and analyzes the …

The Dinosaur In The Living Room: A Proposal To Enable Academic Access To Fossils Discovered On Private Land, Sara K. Mazurek

Fordham Intellectual Property, Media and Entertainment Law Journal

The United States has been a major source of scientifically significant paleontological discoveries over the course of its history. In addition to invaluable primary source material for the study of evolution and climate change, American paleontology has additionally been invoked as symbols of American power since the founding of the country. Even though fossils are prominent national heritage, the United States today only uniformly regulates their excavation and use on federal public lands through the Paleontological Resources Preservation Act. When fossils are discovered on private land, landowners and those with whom they contract often sell them to private collectors, which …

Why The Policy Failures Of Mass Incarceration Are Really Political Failures, John F. Pfaff

Faculty Scholarship

In his forthcoming book, The Insidious Momentum of Mass Incarceration, Franklin Zimring argues that the most effective way to end mass incarceration is to target the policy failures that drive it. He focuses in particular on the “prosecutorial free lunch”: prosecutors are county-funded officials who can send as many people as they like to state-funded prisons, which is a classic moral hazard problem. While Zimring is correct to focus on how relatively technocratic issues have posed outsized and underappreciated problems, his analysis suffers from some important shortcomings. In particular, he gives too little attention to the politics that have …

Access To Algorithms, Hannah Bloch-Wehba

Fordham Law Review

Federal, state, and local governments increasingly depend on automated systems—often procured from the private sector—to make key decisions about civil rights and liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed. Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision-making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision-making: the law of access to …

Withdrawing From Congressional-Executive Agreements With The Advice And Consent Of Congress, Abigail L. Sia

Fordham Law Review

As President Donald J. Trump withdrew the United States from one international agreement after another, many began to question whether these withdrawals required congressional approval. The answer may depend on the type of agreement. Based on history and custom, it appears that the president may unilaterally withdraw from agreements concluded pursuant to the treaty process outlined in the U.S. Constitution. However, the United States also has a long history of concluding international agreements as congressional-executive agreements, which use a different approval process that does not appear in the Constitution. But while academics have spilled ink on Article II treaties for …

Colloquium: The Judicial Role In Professional Regulation: Foreword, Bruce A. Green

Fordham Law Review

In his confirmation hearings, Chief Justice Roberts analogized judges to baseball umpires who only call balls and strikes.1 That is a questionable analogy in general, given that judges’ oversight of court proceedings goes beyond applying the law. But most especially, it is belied by judges’ role in regulating law practice, including judicial practice. With respect to lawyers, judges not only apply the law but make and enforce it. The eleven pieces in this collection, briefly introduced here, reflect the breadth of courts’ authority

Toward National Criminal Bar Admission In U.S. District Courts, Gabriel J. Chin

Fordham Law Review

In the extensive litigation over bar admission in federal district courts, courts have upheld state bar membership requirements. Nevertheless, the changes to legal practice flowing from the COVID-19 pandemic—the disconnection between workplace and residence, the ability to meet and to hold court proceedings by video, and the unjustifiability of charging clients time and travel for brief, perfunctory in-person meetings and conferences that could be handled effectively and expeditiously online—will make these questions ever more serious

Restorative Justice From Prosecutors’ Perspective, Bruce A. Green, Lara Bazelon

Fordham Law Review

Restorative justice processes have been promoted as an alternative to criminal adjudication for many years outside the United States and, in recent years, in the United States as well. In the United States, restorative justice processes are used in some jurisdictions in cases involving juvenile offenders or low-level, nonviolent offenses by adults, but they have rarely been used in cases of adult felony offenders charged with serious violent crimes. Whether restorative justice processes will be used more broadly depends largely on whether prosecutors become receptive to their use. A handful of newly elected “progressive prosecutors” have expressed interest in applying …

Opt-In Stewardship: Toward An Optimal Delegation Of Mutual Fund Voting Authority, Sean J. Griffith

Faculty Scholarship

This article offers a theory of mutual fund voting to answer when mutual funds should vote on behalf of their investors and when they should not. It argues that voting authority for mutual funds ought to depend upon: (1) whether the fund possesses a comparative information advantage, and (2) the ability of the fund to assume a common investor purpose. The strongest case for mutual fund voting is one in which high-quality information is produced and the fund is able to assume a common investor purpose. The case for mutual fund voting is weaker when low quality information is produced …

Victims’ Rights From A Restorative Perspective, Lara Bazelon, Bruce A. Green

Faculty Scholarship

The criminal adjudicatory process is meant in part to help crime victims heal. But for some crime victims, the process is re-victimizing. For decades, efforts have been made to make the criminal process fairer and more humane for victims. For example, state and federal laws are now designed to keep victims informed, allow them to be heard at sentencing, and afford them monetary restitution. But these efforts, while important, have not persuaded crime victims to trust criminal process. For example, sexual assaults remain grossly under-reported and under-prosecuted. Less than 1 percent of sexual assault crimes result in a felony conviction. …

Broken Records: Reconceptualizing Rational Basis Review To Address “Alternative Facts” In The Legislative Process, Joseph Landau

Faculty Scholarship

In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, …

Responsible A.I. Credit Scoring - A Legal Framework, Katja Langenbucher

Faculty Scholarship

No abstract provided.

Liberalism And The Distinctiveness Of Religious Belief, Abner S. Greene

Faculty Scholarship

Finding the appropriate sweet spot for religion’s role in the state and how state action may affect the lives of religious people continues to be elusive. Cécile Laborde’s ambitious book Liberalism’s Religion comes down firmly on the side of seeing religion as not distinctive, even in a liberal democracy. To the extent that nonestablishment and free exercise norms should prevail, they should prevail insofar as we can disaggregate religion into components that it shares with nonreligious belief and practice. In this review essay, I advance a position on which Laborde spends little time in her book — religion is distinctive …

Why The House Of Representatives Must Be Expanded And How Today’S Congress Can Make It Happen, Caroline Kane, Gianni Mascioli, Michael Mcgarry, Meira Nagel

Faculty Scholarship

The House of Representatives was designed to expand alongside the country’s population—yet its membership stopped growing a century ago. Larger and, in some cases, unequal sized congressional districts have left Americans with worse representation, including in the Electoral College, which allocates electors partially on the size of states’ House delegations. This report recommends tying the House’s size to the cube root of the nation’s population, which would lead to 141 more seats. It also calls for an approach to drawing districts that would eliminate gerrymandering.

This report was researched and written during the 2018-2019 academic year by students in Fordham …

Protecting Against An Unable President: Reforms For Invoking The 25th Amendment And Overseeing Presidential Nuclear Launch Authority, Louis Cholden-Brown, Daisy De Wolff, Marcello Figueroa, Kathleen Mccullough

Faculty Scholarship

The immense powers of the presidency and the vast array of global threats demand a physically and mentally capable president. To help ensure able presidential leadership, this report advocates reforms related to the 25th Amendment, including proposals for an “other body” to act with the vice president in certain circumstances to declare the president unable and a mechanism for officials to report concerns about the president’s capacity. The report also recommends new checks on the president’s authority to use nuclear weapons, such as procedures for notifying top national security officials when use is contemplated.

This report was researched and written …

Motives And Fiduciary Loyalty, Stephen R. Galoob, Ethan J. Leib

Faculty Scholarship

How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fiduciary context. We contend that this counterargument depends on a flawed understanding of the significance of motive to loyalty. We defend a view of the importance of motivation to loyalty that we call the compatibility account. On this view, A acts loyally toward B only if …

Frequent Filer Shareholder Suits In The Wake Of Trulia: An Empirical Study, Sean J. Griffith

Faculty Scholarship

No abstract provided.

Patent Shopping, Janet Freilich

Faculty Scholarship

Over the past decade, scholars have identified many entities who use the patent system in ways that differ from the traditional model of patent use—entities such as patent assertion entities, patent aggregators, or owners of large patent portfolios. This Article presents a model that explains the behavior of some of the biggest and most controversial entities in the patent system. This Article argues that such entities are engaged in “patent shopping” where the plaintiff makes a strategic choice of patent in order to obtain the best facts and substance in a case and thereby maximize the chance of a favorable …

The Fact-Law Distinction: Strategic Factfinding And Lawmaking In A Judicial Hierarchy, Sepehr Shahshahani

Faculty Scholarship

No abstract provided.

The Adjudication Business, Pamela K. Bookman

Faculty Scholarship

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond.

The emerging scholarship addressing these new courts tends to …

Special Education Disparities Are Social Determinants Of Health: A Role For Medical-Legal Partnerships, Karen Bonuck, Leah Hill

Faculty Scholarship

Problem: Education is a key social determinant of health. The federal Individuals with Disabilities Education Act (IDEA) purportedly affords children the right to a free and appropriate education. Yet, racial, ethnic, and economic disparities exist regarding appropriate identification and classification of children with needs for special education, and access to services.

Purpose: This article first highlights gaps and disparities in special educational services, and their structural linkage to poverty. The second section describe the first years of a medical–legal collaboration between a University Center of Excellence in Developmental Disabilities (UCEDD) and Fordham University, focused on special education.

Key Points: The …