Law Commons^™

Ai Derivatives: The Application To The Derivative Work Right To Literary And Artistic Productions Of Ai Machines, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. This Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, this Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is …

Derivative Works And Making Sense Of The Maxim That 'Others Are Free To Copy The Original. They Are Not Free To Copy The Copy.', David E. Shipley

Scholarly Works

This is a paper about some of the most entertaining and challenging cases in America’s copyright law jurisprudence concerning derivative works as copyrightable subject matter, and the closely related right to prepare derivative works. The cases are entertaining because they involve very familiar works of authorship, and they are challenging because the rulings are often difficult to reconcile due to the fact that the courts are grappling with copyright’s elusive originality standard as applied to derivative works as well the copyright owner’s right to prepare derivative works. Instead of attempting to say something ‘original’ about originality, my goal for this …

Registration Is Fundamental, Brian L. Frye, Nicole E. Pottinger

Law Faculty Scholarly Articles

Under the Copyright Act, copyright owners can file infringement actions only if registration of their copyright claim with the Copyright Office “has been made” or “has been refused.” The United States Supreme Court recently granted certiorari in Fourth Estate v. Wall-Street.com, in order to decide whether registration is “made” when a claimant files a registration application or when the Copyright Office registers the claim.

This article argues that the Court should hold that registration occurs when the Copyright Office registers the claim, in order to ensure that federal courts can benefit from the expertise of the Copyright Office. The Copyright …

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

Ip Things As Boundary Objects: The Case Of The Copyright Work, Michael J. Madison

Articles

My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.

It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) …

The Enigma Of Photography, Depiction, And Copyright Originality, Terry S. Kogan

Utah Law Faculty Scholarship

Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual …

The Derivative Right, Or Why Copyright Law Protects Foxes Better Than Hedgehogs, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The derivative right is at the very core of copyright theory. What can and cannot be reused to create a new work impacts freedom of expression but also impacts the value of the markets for works and their various “derivatives.” The derivative right includes forms of derivation and adaptation, such as making a movie from a novel or translating a book. It also covers what this Article refers to as penumbral derivatives, which the US Copyright Act captures using the phrase “based upon” with respect to preexisting works. This leads to indeterminacy about the scope of the derivative right, which …

The End Of The Work As We Know It, Michael J. Madison

Articles

This paper takes a new look at the concept of the work of authorship in copyright, known in other systems as the copyright work. It complements inquiries into authorship and originality, extending earlier scholarship on the origins of legal “things” or objects and on the multi-dimensional character of their borders and boundaries.

Originality Proxies: Toward A Theory Of Copyright And Creativity, Eva E. Subotnik

Faculty Publications

This article contends that a definitive account of originality as a legal construct is not possible and that, as a result, the current low threshold for originality should be maintained. Under this analysis, most photographs, so long as they comply with certain requirements, should be granted protection, at the very least, against exact copying (for example, through digital copying and pasting). Arriving at this conclusion, however, requires a return to first principles, that is, to the copyright concepts of authorship and originality. These concepts saw their most recent articulation by the Supreme Court in the 1991 landmark decision of Feist …

Copyright's Derivative Works Doctrine And An Upside-Down Proviso, Wendy J. Gordon

Scholarship Chronologically

It is sometimes observed that questions of "justice in acquisition" do not much arise any more. However, judges face those questions on a daily basis in courtrooms adjudicating copyright and patent matters. In United States copyright law, for example, an intriguing dilemma regarding derivative works has developed that raises what appears to be a new issue regarding John Locke's sufficiency proviso.

Creativity And Craft, Michael J. Madison

Book Chapters

I revisit the distinction between intangible works of authorship and tangible objects, which is a fundamental proposition of modern copyright law. I suggest that reconsidering that distinction, at least in part, may expand the range of possibilities for aligning modern copyright as an economic construct with the historical roots of copyright and with ethical claims about authorial expression. Revisiting that distinction also may provide contemporary lawyers and policymakers with a much-needed tool for managing challenges posed by digital technology.

Hoisting Originality: A Response, Roberta Kwall

College of Law Faculty

This commentary originally appeared as part of the inaugural Virtual Workshop sponsored by the Intellectual Property Institute at the University of Richmond School of Law. The workshop featured a paper entitled Hoisting Originality (now published at Cardozo Law Review, Vol. 31, p. 451, 2009) by Professor Joseph Miller, along with two commentaries on the paper. My commentary examines and responds to Miller's argument that the standard for copyright law's originality requirement should be "hoisted" and thus analogized to that present in patent law.

Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge

Vanderbilt Law School Faculty Publications

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal …

The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis

GW Law Faculty Publications & Other Works

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American …

Intellectual Property Rights In An Attorney’S Work Product, Ralph D. Clifford

Faculty Publications

This paper addresses the main intellectual property consequences of practicing law and whether attorneys can prevent others from using their work-product. The article does not assume that the reader is an expert in intellectual property law; instead, it is designed to answer the types of questions practitioners have about their rights.

Maintaining Competition In Copying: Narrowing The Scope Of Gene Patents, Oskar Liivak

Cornell Law Faculty Publications

In supporting gene patents, the patent office, the courts and other supporters have assumed that gene discoveries are identical to traditional inventions and therefore the patent system should treat them as identical. In other words, they have assumed that the relatively broad claims that are used for traditional inventions are also appropriate for encouraging gene discovery. This article examines this assumption and finds that gene discoveries are critically different from traditional inventions and concludes that the patent system cannot treat them as identical.

As a doctrinal matter, this article applies the generally overlooked constitutional requirements of inventorship and originality and …

The Forgotten Originality Requirement: A Constitutional Hurdle For Gene Patents, Oskar Liivak

Cornell Law Faculty Publications

Originality has always been a part of patent law. It bars patents that are obtained by copying from someone or from somewhere. Modern judicial interpretations of the patent act have ignored this second element of originality. But as originality is, at least arguably, a constitutional limit of the Patent and Copyright clause, the courts must interpret the patent act consistently to include originality. As a specific example, the paper focuses on patents claiming isolated and purified naturally-occurring gene sequences. The paper concludes that such patents are not original – they are instead just the result of copying – and thus …

An Analysis Of The Personal Use Principle Under Copyright Law, Hsin-Chih Cheng

LLM Theses and Essays

Personal use is when an individual uses a copyrighted work for private purposes, such as learning or entertainment. Personal use is a right given in the Copyright Clause of the U.S. Constitution, however, an issue arises when the individual wants to make a copy of the copyrighted work. New technologies like photocopying and videotaping make this issue more prominent today. Some copyright owners think that the individual’s copying for private use is harmful to their potential market and they argue for compensation. Does the individual have the right under the personal use principle to reproduce the copyrighted work for private …

The Public Domain, Jessica D. Litman

Articles

This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," …

Copyright Protection For Architectural Works, David E. Shipley

Scholarly Works

Architecture is the most commonly experienced and pervasive of all the arts. The creative efforts of architects culminate in structures used for shelter, pleasure, business, entertainment, and transportation.1 Architects express their design concepts in sketches, elevations, floor plans, working drawings, specifications, renditions, and three-dimensional models. Their labors in shaping the ideas for a building from rough conceptions into plans and then into completed structures are similar to the efforts of other creators. An architect is as much an author as is a sculptor or a dramatist. His plans, renditions, and the resulting structure will ordinarily show originality and will reflect …