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The Questionable Use Of Custom In Intellectual Property, Jennifer E. Rothman
The Questionable Use Of Custom In Intellectual Property, Jennifer E. Rothman
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The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique …
Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman
Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman
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This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably …
On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco
On The Legal Consequences Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?, Christopher J. Buccafusco
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The restaurant industry now takes in over $500 billion a year, but recent courts have been skeptical of the notion that one of its most valuable assets, original recipes, are subject to copyright protection. With more litigation looming and the contours of the debate insufficiently mapped out, this article establishes the appropriate groundwork for analyzing the copyrightability of recipes. I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for …
Using Innovative Technologies To Analyze For Similarity Between Musical Works In Copyright Infringement Disputes, Yvette Joy Liebesman
Using Innovative Technologies To Analyze For Similarity Between Musical Works In Copyright Infringement Disputes, Yvette Joy Liebesman
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Courts continue to struggle with discerning the level of substantial similarity between musical compositions in infringement analyses, which is related to their difficulty in determining the portion that is available for the public to use, and where that permission stops. This paper argues that, under the current policies regarding copyright protection and unauthorized copying, the current test is inadequate and a new infringement test should be considered. Two alternatives are proposed. The first test uses objective mapping of a song’s artistic elements. The second considers the link between wave motion theory of physics and music and proposes comparing the mathematical …
Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman
Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman
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The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution …