Law Commons^™

Copyright’S Capacity Gap, Andrew Gilden, Eva E. Subotnik

Faculty Publications

Most areas of law require that individuals meet a certain threshold of capacity before their decisions — e.g., to marry, to enter into a contract, or to execute an estate plan — are given legal effect. Copyright law, by contrast, gives legal effect to creative decisions by granting the decisionmaker many decades of exclusive rights so long as they are a human being and have demonstrated a “creative spark.” This Article examines the overlooked consequences of this gap in capacity standards between copyright and other areas of law. It shows that this gap has produced numerous opportunities for vulnerable creators …

Whose Progress?, Laura A. Heymann

Faculty Publications

Article I, Section 8, Clause 8 of the U.S. Constitution provides that Congress shall have power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” These words have been the subject of countless books and scholarly articles. Professor Silbey’s engaging contribution [in Against Progress: Intellectual Property Law and Fundamental Values in the Internet Age] to the conversation focuses on one word—progress—and what it should mean as we think about intellectual property law’s motivations and justifications in the twenty-first century.

But even …

Fair Use In Sayre V. Moore: A Reply To Oracle, Ned Snow

Faculty Publications

The Supreme Court is now considering the case of Google LLC v. Oracle America, Inc. Oracle has argued that Google infringed its copyright in computer software, but a jury found that Google’s use was not infringing under the fair use doctrine. The Federal Circuit reversed the jury verdict under a de novo standard of review. I have argued that this reversal violates the Seventh Amendment.

Seventh Amendment rights depend on whether an issue would have been decided by a jury in English law courts during the late 1700s. My argument is that in the 1785 English case of Sayre v. …

Brief Of Amicus Curiae Interdisciplinary Research Team On Programmer Creativity In Support Of Respondent, Ralph D. Clifford, Firas Khatib, Trina Kershaw, Kavitha Chandra, Jay Mccarthy

Faculty Publications

This brief answers the two primary issues that are associated with the first question before the Court. First, the programmers’ expression of the Java-based application programmer interfaces (“APIs”) are sufficiently creative to satisfy that requirement of copyright law. Second, the idea expression limitation codified in Section 102(b) of Copyright Act does not establish that the APIs are ideas. Both of these assertions are supported by the empirical research undertaken by the Research Team. This brief expresses no opinion on the resolution of the fair use question that is also before the Court.

The Fine Art Of Rummaging: Successors And The Life Cycle Of Copyright, Eva E. Subotnik

Faculty Publications

This chapter argues that a possible justification for the extension of copyright beyond the death of the author is the key role that copyright successors may serve in the life cycle of artistic works. In particular, with respect to an artist’s unpublished work, a time-sensitive decision must be made about whether or not to keep the physical artifacts associated with copyrights—an obligation that often falls to these successors. Bulky canvases, sketches, negatives, and myriad other items must be sifted through in order to separate the wheat from the chaff. In this way, the post-death cleanup period offers a once-in-a-lifetime event …

Abandoning Copyright, Dave Fagundes, Aaron K. Perzanowski

Faculty Publications

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and the case law is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for discrete private …

Unregistered Complaints, Christine Galbraith Davik

Faculty Publications

In March, the U.S. Supreme Court handed down its highly-anticipated decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC which resolved a split among U.S. Court of Appeals concerning the point in time when a copyright owner is first able to file suit against an alleged infringer. While at first glance this case may merely appear to be a simple issue of statutory interpretation, namely whether it is upon application for registration or once a determination has been made on registration by the U.S. Copyright Office, I argue this decision is a clarion call for a much-needed amendment to …

The Harmonization Myth In International Intellectual Property Law, Sarah R. Wasserman Rajec

Faculty Publications

There is a dominant narrative in international intellectual property ("IP") law of ever-increasing harmonization. This narrative has been deployed in ways descriptive, prescriptive, and instrumental: approximating the historical trend, providing justification, and establishing the path forward. Appeals to harmonization are attractive. They evoke a worldwide partnership and shared sacrifice to meet the goals of innovation and access to technology through certainty, efficiency, and increased competition through lowered trade barriers. Countries with strong IP protections consistently and successfully tout the importance of certainty and lower trade barriers when seeking new and stronger protections from countries with lower levels of protection. Yet …

Who Decides Fair Use -- Judge Or Jury?, Ned Snow

Faculty Publications

For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent.

Oracle raises a fundamental question in jurisprudence: Who should decide an issue …

Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby

Faculty Publications

On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and more. …

Clown Eggs, David Fagundes, Aaron K. Perzanowski

Faculty Publications

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller …

Who Owns (What We Characterize As) The News?, Laura A. Heymann

Faculty Publications

Will Slauter’s Who Owns the News? (2019) is subtitled A History of Copyright, but it could just as easily have been subtitled A History of Journalism. Slauter’s thoughtful and detailed story of the battle among newspaper publishers to secure legal and other protection for their work product is inseparable from questions about what it means for something to be “news” in the first place—and, indeed, whether “journalism” is something different from “news.” Developments subsequent to Slauter’s history—the emergence of the journalist as a literary figure, the heightened need to see news publishing as an economic (and profitable) enterprise, and the …

Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola

Faculty Publications

Intellectual property law has intended benefits, but it also carries certain costs—deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More …

Copyright And Underwater Cultural Heritage, Tyler T. Ochoa

Faculty Publications

This article will focus on three aspects of copyright law as it applies to the photography of underwater cultural heritage. First, to what extent can a salvor claim exclusive rights to photograph a particular site? Second, who is the author (or who are the authors) of such underwater photography, which increasingly involves the use of remote-controlled robotic drones? Third, to what extent can a State control the use of underwater photography that falls within its territorial waters?8 All three of these aspects have been the subject of lawsuits and judicial opinions in the United States; and those opinions shed light …

Emojis And The Law, Eric Goldman

Faculty Publications

Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes—such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail.

Our legal system has substantial experience interpreting new forms of content, so it should be equipped to handle emojis. Nevertheless, some special attributes of emojis create extra interpretative challenges. This Article identifies those attributes and proposes how courts should handle them.

One particularly troublesome interpretative challenge arises from the different ways platforms depict emojis that are nominally standardized …

Brief Of Amici Curiae - Copyright And Intellectual Property Law Professors In Support Of Defendant-Petitioner Pandora Media, Inc., Tyler T. Ochoa, Joseph C. Gratz

Faculty Publications

Brief submitted to the Supreme Court of the State of California.

Case No. S240649 FLO & EDDIE, INC., Plaintiff-Respondent, v. PANDORA MEDIA, INC., Defendant-Petitioner.

Plaintiff Flo & Eddie, Inc., contends that the phrase “exclusive ownership” in California Civil Code section 980 includes all possible uses to which a copyrightable work may be put, including an exclusive right of public performance. At the time California Civil Code section 980 was first enacted in 1872, however, the phrase “exclusive ownership” in relation to a copyrightable work meant something different and much narrower: namely, the right of first publication (reproduction and sale) only. …

Creativity Revisited, Ralph D. Clifford

Faculty Publications

The University of New Hampshire's Scholarship Redux Conference invited a reexamination of an earlier work of IP scholarship to address what has happened in the area since the time of its original publication. As my contribution to the Conference, I revisited my 1997 article that discussed the consequences of the increasing sophistication of artificial intelligence ("AI") on the production of new copyrightable or patentable works as well as the follow-up article I published in 2004 that focused expressly on copyright law. The primary call of the conference was to discuss the "legal predictions [that were] right -- or wrong!" In …

The Limits Of Copyright Office Expertise, Aaron K. Perzanowski

Faculty Publications

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and …

Dr. Seuss, The Juice And Fair Use Revisited: Two Decades Of Parody And Satire In Copyright Law, Tyler T. Ochoa

Faculty Publications

This essay will summarize some of the salient features and arguments made in the original article. It will also analyze copyright infringement cases in the last 20 years applying the fair use doctrine to parody and satire.

Licensing & Law Who Owns An Avatar?, Tyler T. Ochoa, Jaime Banks

Faculty Publications

Both players and game developers have great influence over how avatars—via their assembled components— manifest in digital game play. Developers craft their foundational platforms and draw on those infrastructures to craft dynamic code that enables movements, appearances, and abilities. But those potentials call into question whether avatars are avatars until they are played—players click avatars into being, customize their bodies and attire, drive their actions and interactions, and sometimes bring them outside the game world through physical representations. So, given avatars’ joint reliance on developers and players, and given legal frameworks such as copyright law, who really “owns” a video …

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Discrimination In The Copyright Clause, Ned Snow

Faculty Publications

ABSTRACT Does Congress have power to deny copyright protection for specific content? The Copyright Clause grants Congress power to “promote the Progress of Science” by legislating copyright laws. Certainly some content may reasonably be viewed as failing to promote the progress of science. Violent video games or pornography, for instance, may reasonably be viewed as not promoting progress in science, even though they receive protection as free speech under the First Amendment. So even if the Free Speech Clause bars Congress from banning content, does the Copyright Clause provide Congress a permissible means to discourage production of that content? This …

Reach Out And Touch Someone: Reflections On The 25th Anniversary Of Feist Publications, Inc. V. Rural Telephone Service Co., Tyler T. Ochoa, Craig Joyce

Faculty Publications

2016 marks the 25th anniversary of the Supreme Court’s opinion in Feist Publications, Inc. v. Rural Telephone Service Co., one of the Court’s landmark opinions in copyright law, and one that continues to define the standard of originality for copyrighted works in general and compilations of data in particular. The Feist case, however, was an unlikely candidate for landmark status. Only a handful of court opinions and academic authors had expressed dissatisfaction with the existing state of the law concerning originality and data compilations.scure sources which have enhanced greatly the pages that follow. Further, the Tenth Circuit’s opinion in Feist …

What Is A "Useful Article" In Copyright Law After Star Athletica?, Tyler T. Ochoa

Faculty Publications

In Star Athletica, LLC v, Varsity Brands, Inc., the Supreme Court decided the appropriate test to determine when a feature of a useful article is protectable under §101 of the Copyright Act. However, there is an antecedent question that must be answered first before the Supreme Court's two part test in Star Athetica may be invoked.

Artistic Control After Death, Eva Subotnik

Faculty Publications

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of …

A Jukebox For Patents: Can Patent Licensing Of Incremental Inventions Be Controlled By Compulsory Licensing?, Ralph D. Clifford

Faculty Publications

The patent system today no longer follows the classic understanding of how it is designed to work. In theory, to avoid infringement, a product developer searches the database of issued patents looking for those that might read onto the product being developed. If such patents are found, the developer can approach the patent holder for a license, can attempt to design around the claims, or can abandon the project. With many hundreds of thousands of patents being issued annually—a rate of issuance almost an order of magnitude larger than a hundred years ago—it is now a practical impossibility to search …

The Interaction Of Exhaustion And The General Law, Aaron K. Perzanowski, Ariel Katz, Guy A. Rub

Faculty Publications

In Statutory Domain and the Commercial Law of Intellectual Property, John Duffy and Richard Hynes argue that IP exhaustion — the doctrine that limits a patentee’s or copyright holder’s control over goods in the stream of commerce — was created and functions exclusively to confine IP law within its own domain and prevent it from displacing other laws.

In this essay, we explain why we are not persuaded. A central theme in Duffy and Haynes work is the argument that the common law did not play a role in the emergence and development of exhaustion. However, we show that the …

Branding Taxation, Jeffrey A. Maine, Xuan-Thao Nguyen

Faculty Publications

Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

The Author Was Not An Author: The Copyright Interests Of Photographic Subjects From Wilde To Garcia, Eva Subotnik

Faculty Publications

Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases …