The Transmit Clause Test: A Pragmatic Approach To A Contemporary Understanding Of The Ambiguity In The Copyright Act’S Transmit Clause, Samantha Tilipman

Samantha Tilipman

The 1976 Copyright Act was a response to development of new technology and an attempt to clarify copyright law to promote further investment in the burgeoning sphere of cable systems.[1] In drafting the provisions of the new Act, Congress created the “Transmit Clause,” a key passage nestled into the definition of “to perform or display a work ‘publicly.’”[2]The ambiguity of the Transmit Clause has led the circuits to interpret it differently leading to conflicting caselaw on opposite ends of the nation. The purpose of this note is to provide the Supreme Court of the United States and …

Decoding Bollywood’S Royalty-Sharing Conundrum, Pralika Jain

Pralika Jain

India’s film making community and business got „industry‟ status only in 2011. However, unlike major industries such as telecom and pharmaceutical, the film industry (popularly known as “Bollywood”) is characterised by a major lack of legal rules and institutions to administer them, the problem being most acute in respect of artists. Consequently, the industry is governed completely by market forces whose successful players wield nearly all the bargaining power. It’s almost baffling that a film industry which is currently worlds second in terms of revenue is so thinly regulated.

Taming The "Feral Beast": Cautionary Lessons From British Press Reform, Lili Levi

Lili Levi

Abstract: As technology undermines the economic model supporting traditional newspapers, power shifts from the watchdog press to those it watches. Worldwide calls for increased press “responsibility” are one result. Pending British press reform provides a troubling example with far-ranging implications for freedom of the press. Under the guise of modest press self-regulation, the U.K. is currently poised to upend 300 years of press freedom via the recently-approved Royal Charter for Self-Regulation of the Press. The Royal Charter was adopted in response to the moral panic engendered by Britain’s tabloid phone-hacking scandal. An example of 20^th Century regulation poorly fitted …

N.I.G.G.A., Slumdog, Dyke, Jap, And Heeb: Reconsidering Disparaging Trademarks In A Post-Racial Era, Amanda E. Compton

Amanda E. Compton

Currently registration of disparaging trademarks is prohibited under Section 2(a) of the Lanham Act. Recent events, however, should reinvigorate the debate about the protection and registration of disparaging marks: (1) recent decisions published by the Trademark Trial and Appeal Board (TTAB) that continue to address and highlight the issues surrounding the registration of disparaging marks; (2) a proposed federal act that would not only specifically bar the registration of any trademark that includes the word “redskins,” but would also retroactively cancel any existing registration that consist of or includes that term; and (3) an amendment to a state act that …

Reconciling Original With Secondary Creation: The Subtle Incentive Theory Of Copyright Licensing, Yafit Lev-Aretz

Yafit Lev-Aretz

Copyright literature has been long familiar with the lack of licensing choices in various creative markets. In the absence of a lawful licensing alternatives, consumers of works as well as secondary creators wishing to use protected elements of preexisting works are often left with no choice but to either infringe on the copyright of the rightholder or refrain from the use. As further creation is regularly impeded, the dearth of licensing greatly conflicts with the utilitarian foundation of copyright and its constitutional goal to promote creative progress. Legal scholarship has submitted various recommendations in response to the licensing failure, homing …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in 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 …

Picture [Im]Perfect: Photoshop Redefining Beauty In Cosmetic Advertisements, Giving False Advertising A Run For The Money, Ashley R. Brown

Ashley R Brown

This paper discusses the use of Photoshop in the United States and when overly retouched ads cross the threshold into False Advertising. I consider opinions from the NAD and whether or not a "Photoshop Law" would ever be feasible in the United States.

Copyright And The Tragedy Of The Common, Tracy Reilly

Tracy Reilly

In his 1968 article, The Tragedy of the Commons, biologist Garret Hardin first described his theory on the ecological unsustainability of collective human behavior, claiming that commonly held real property interests would not ultimately be supportable due to the competing individual interests of all who use the property. In the legal field, Hardin’s article is frequently cited to support various theories related to real property and environmental law issues such as ownership, redistribution of wealth, pollution, over population, and global warming. Most scholars claim that a tragedy of the commons does not exist in intellectual property-related goods due to the …

The Impact Of The Jobs Act On Independent Film Finance, Sahil Chaudry

Sahil Chaudry

While the 2008 financial crisis fundamentally altered the capital structure of the indie film, the JOBS Act will fundamentally augment capital sources available to the indie film industry at the time it is most starved. The onset of the U.S. recession, triggered by the 2008 economic crisis, substantially reduced the capital markets for the production of independent films. In an effort to stimulate economic growth for business start-ups, Congress passed the JOBS Act in March 2012. Two provisions of the JOBS Act present the independent (“indie”) film industry the opportunity to expand its capital markets. The first provision is Section …

Reburying An Injustice: Indigenous Human Remains In Museums And The Evolving Obligations To Return Remains To Indigenous Groups, Alex Bernick

Alex Bernick

No abstract provided.

Banksy Got Back? Problems With Chains Of Unauthorized Derivative Works And Arrangement Rights In Cover Songs Under A Compulsory License, Matthew Adam Eller Esq.

Matthew Adam Eller

This note will analyze the scope of copyright ownership in relation to chains of unauthorized derivative works and chains of arrangement rights in “cover” versions of musical recordings. In particular, the analysis will focus on the gray area in the law where an unauthorized derivative work is created by (“D1”) and then another author creates a second derivative work (“D2”) based off of D1. In situations such as these does the creator of the original derivative work have any rights in their creation if their derivative work was unauthorized? Further, depending on what rights do exist for D1, can the …

The Apocalyptic Presidential Right Of Publicity, Michael G. Bennett

Michael G. Bennett

The Apocalyptic Presidential Right of Publicity

Michael G Bennett Associate Professor Northeastern School of Law

Abstract

This article critically examines publicity rights doctrine as applied to celebrity political figures. It is particularly concerned with the prominence of science fictional concepts, theoretical frameworks and tropes in cases that mark the extreme scope of the doctrine and in the scholarship that aims to render case law rationally meaningful. And it situates President Obama and the difficult doctrinal issues his candidacy and subsequent election highlighted at the center of its analysis.

Part one of the article briefly describes the right of publicity and …

Slaves To Copyright: Branding Human Flesh As A Tangible Medium Of Expression, Arrielle S. Millstein

Arrielle S Millstein

This paper argues why human flesh, because of its inherent properties and its necessity for human survival, should not qualify as a tangible medium of expression under the Copyright Act of 1976. Through policy concerns and property law this paper demonstrates why the fixation requirement, necessary to obtain copyright protection of a “work,” must be flexible and eliminate human flesh as an acceptable, tangible medium of expression, to avoid the disastrous risk of the court falling into the role of “21st Century judicial slave masters.”

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Substantial Similarity In Literary Infringement Cases: A Chart For Turbid Waters, Robert F. Helfing

Robert F Helfing

INTRODUCTION

"We delve once again," wrote Ninth Circuit Judge Alex O. Kozinski, "into the turbid waters of the 'extrinsic test' for substantial similarity under the Copyright Act.”[1] The court had before it a claim that a popular television series infringed the copyrights in plaintiffs’ screenplays. Precedent regarding substantial similarity is particularly confused in cases involving literary infringement, resulting in virtually automatic rejection: In the past 35 years, courts in the Ninth Circuit has allowed only three such claims to avoid summary dismissal, none since 2002 when Judge Kozinski made his remark about turbid waters. Yet, in the absence of …

Recognized Stature: Protecting Street Art As Cultural Property, Griffin M. Barnett

Griffin M. Barnett

This Article discusses the current legal regimes in the United States implicated by works of "street art." The Article suggests an amendment to the Visual Artists Rights Act that would protect certain works of street art as "cultural property" - thereby promoting the arts and the preserving important works of art that might otherwise be at the mercy of property owners or others who do not share the interests of artists and the members of communities enhanced by works of street art.

Decoding And Resisting Culture: Reception Theory And Copyright Law, Meghan M. Lydon Ms.

Meghan M. Lydon Ms.

Though there has been much academic treatment of the author’s role in copyright law, few academic articles have been published about the reader’s role. Of those articles, only one has examined copyright law through the lens of reader response theory. In her article “Everything is Transformative: Fair Use and Reader Response,” 31 Colum. J.L. & Arts 445, Laura Heyman relied on English professor Stanley Fish’s famous reader response theory to argue that all works are transformative because readers naturally interpret texts from their own perspectives and that copyright law’s transformative use test should measure the use that a community of …

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.

The Economy Rules: An Analysis Of The Ever-Shifting Portrayal Of Attorneys In Popular Culture, Neely M. Peden

Neely M Peden

There has most definitely been a shift in the view of elite professionals within modern pop culture. Attorneys especially have come to face “anti-establishment” movement by popular culture. Those professions which used to be revered are now examples of ill-morals and ill-behavior. Indeed, popular culture goes out of its way to make villains out of attorneys by showing unprincipled characters in legal television shows or by churning out movies that revolve around attorneys whose lives and morals are so corrupt that they need to go through some sort of personal tragedy to be redeemed. It is this paper’s contention that …

Rediscovering Cumulative Creativity From The Oral Formulaic Tradition To Digital Remix: Can I Get A Witness?, Giancarlo Francesco Frosio

Giancarlo Francesco Frosio

For most of human history the essential nature of creativity was understood to be cumulative and collective. This notion has been largely forgotten by modern policies regulating creativity and speech. As hard as it may be to believe, the most valuable components of our immortal culture were created under a fully open regime with regard to access to pre-existing expressions and reuse. From the Platonic mimēsis to the Roman imitatio, from Macrobius’ Saturnalia to the imitatio Vergili, from medieval auctoritas and Chaucer the compilator to Anon the singer and social textuality, from Chrétien’s art of rewriting to Shakespeare’s “borrowed feathers,” …

Game Over For First Sale, Stephen J. Mcintyre

Stephen J McIntyre

Video game companies have long considered secondhand game retailers a threat to their bottom lines. With the next generation of gaming consoles on the horizon, some companies are experimenting with technological tools to discourage and even prevent gamers from buying and selling used games. Most significantly, a recent patent application describes a system for suppressing secondhand sales by permanently identifying game discs with a single video game console. This technology flies in the face of copyright law’s “first sale” doctrine, which gives lawful purchasers the right to sell, lease, and lend DVDs, CDs, and other media. This Article answers a …

Institutionalized Word Taboo: The Continuing Saga Of Fcc Indecency Regulation, Christopher M. Fairman

Christopher M Fairman

Indecency regulation by the Federal Communication Commission and Supreme Court is the product of word taboo—the subconscious, emotional, involuntary avoidance of certain words out of fear that some harm will occur if they are spoken. Acting in tandem, the Court and the Commissioners create institutionalized word taboo based upon the assumption that broadcast media’s pervasive and intrusive presence into the home endangers unsupervised children. Technological innovation renders this premise invalid today, but institutionalized word taboo remains. This article (1) traces the rise of indecency regulation, (2) explains the invalidity of the assumptions used to justify it, (3) introduces word taboo …

Copyright Freeconomics, John M. Newman

John M. Newman

Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster’s rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate, still ongoing, among scholars and stakeholders—but this debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering licit content at a price of $0.

This sea change has ushered in an era of “copyright freeconomics.” Drawing on an emerging body …

Ownership Is Nine-Tenths Of Possession: How Disparate Conceptions Of Ownership Influence Possession Doctrines, Martin Hirschprung

martin hirschprung

Possession is nine-tenths of ownership. And yet, the concept of possession remains woefully unclear in the law, thereby rendering the very idea of ownership too somewhat murky. This Article argues that there exists a reflexive relationship between possession and ownership, and that one’s understanding of ownership and its incidents influence the very concept of possession, rather than vice-versa. The Article further argues that given this reality, the application of the concept of stewardship to question of possession can aid significantly in resolving some of the most important contemporary disputes regarding possession and ownership in society, such as disputes between museums …

Caution — Contains Extremely Offensive Material: David Wojnarowicz V. American Family Association, The Visual Artists Rights Act, And A Proposal To Expand Fair Use To Include Artists' Moral Rights, Sarah Leggin

Sarah Leggin

Although many artists build their careers by offending or challenging mainstream culture and live happily as outsiders, these and all artists still strive to protect their reputations and the integrity of their works. The importance of protecting the moral rights of artists has long been recognized by European law, but the United States has not embraced the value of artists’ rights in the same way. Today, U.S. copyright law recognizes moral rights for visual works that fall within narrow categories due to the enactment of the Visual Artists Rights Act of 1990 (VARA). Even after VARA was enacted and preempted …

Courtroom Drama With Chinese Characteristics: A Comparative Approach To Legal Process In Chinese Cinema, Stephen J. Mcintyre

Stephen J McIntyre

While previous “law and film” scholarship has concentrated mainly on Hollywood films, this Essay examines legal themes in Chinese cinema. It argues that Chinese films do not simply mimic Western conventions when portraying the courtroom, but draw upon a centuries-old, indigenous tradition of “court case” (gong’an) melodrama. Like Hollywood cinema, gong’an drama seizes upon the dramatic and narrative potential of legal trials. Yet whereas Hollywood trial films turn viewers into jurors, pushing them back and forth between the competing stories that emerge from the adversarial process, gong’an drama eschews any recognition of opposing narratives, centering instead on the punishment of …