Law Commons^™

Calculating The Harms Of Political Use Of Popular Music, Jake Linford, Aaron Perzanowski

Articles

When Donald Trump descended the escalator of Trump Tower to announce his 2016 presidential bid, Neil Young’s “Rockin’ in the Free World” blared from the loudspeakers. Almost immediately, Young’s management made clear that the campaign’s use of the song was unauthorized. Neil Young was not alone. Trump drew similar objections from dozens of artists during his first two presidential bids. But as a matter of copyright law, it is unclear whether artists can prevent their songs from being played at campaign rallies.

The Subsistence And Enforcement Of Copyright And Trademark Rights In The Metaverse, Cheng Lim Saw, Zheng Wen Samuel Chan

Research Collection Yong Pung How School Of Law

The metaverse has been widely hailed as a symbol of technological progress, presenting an immersive virtual realm that has the potential to transform how individuals engage in social and commercial activities. However, this conception of a borderless virtual world - which purportedly transcends the capabilities and reach of Web 2.0 - sits uncomfortably with the territorial nature of intellectual property rights. This chapter examines the complexities surrounding the subsistence and enforcement of intellectual property rights within the metaverse, with a specific focus on copyright and trademarks. Especial attention is paid to issues concerning choice of law and jurisdiction. Finally, the …

Open Source Perfume, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

ABRIDGED ABSTRACT: Perfume is a powerful art and technology, but its secrets are closely held by a privileged few - by some counts, there are more astronauts than there are perfumers. As critics have noted increasingly since 2020, those select few perfumers often share similar backgrounds. As interviews with American, British, and French perfumemakers reveal, intellectual property (IP) also plays a gatekeeping role in perfumery. Drawing on work by perfumer and educator Saskia Wilson-Brown, this Article suggests that perfumery is overdue for a transformation. One is emerging: open source perfume. For those seeking ways to share scents and signal commitment …

Ai, Artists, And Anti-Moral Rights, Derek E. Bambauer, Robert W. Woods

UF Law Faculty Publications

Generative artificial intelligence (AI) tools are increasingly used to imitate the distinctive characteristics of famous artists, such as their voice, likeness, and style. In response, legislators have introduced bills in Congress that would confer moral rights protections, such as control over attribution and integrity, upon artists. This Essay argues such measures are almost certain to fail because of deep-seated, pervasive hostility to moral rights measures in U.S. intellectual property law. It analyses both legislative measures and judicial decisions that roll back moral rights, and explores how copyright’s authorship doctrines manifest a latent hostility to these entitlements. The Essay concludes with …

Raising The Threshold For Trademark Infringement Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey

Articles in Law Reviews & Other Academic Journals

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speech-protective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …

Confused About Copyright?, Sara Anne Hook

Graduate Scholarship and Professional Work

No abstract provided.

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Hard Truths About Soft Ip, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators …

[Quote] Hail To The Washington Commanders — And The Power Of The Trademark, Christine Farley

Popular Media

No abstract provided.

Reverse Confusion And The Justification Of Trademark Protection, Jeremy N. Sheff

Faculty Publications

Theories of private law are dominated by welfarist normative frameworks, and trademark law is no exception. One such framework—the “search costs” theory associated with the Chicago School of law and economics—has long been the primary accepted justification for trademark rights. However, this theory fails to account for numerous features of actual trademark doctrine, as earlier scholarship has shown. This Article demonstrates how one underexamined area of trademark law—reverse confusion liability— is a similarly poor fit with the predictions and prescriptions of conventional economic theory. Plausible economic theories of trademark rights would either refuse to impose liability in reverse confusion cases …

The Supreme Court’S Chief Justice Of Intellectual Property Law, Bob Gomulkiewicz

Articles

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

Certification (And) Marks – Understanding Usage And Practices Among Standards Organizations, Brad Biddle, Vigdis Bronder, Jorge L. Contreras

Utah Law Faculty Scholarship

In addition to creating technical standards that describe how different products or services interoperate, many standards development organizations (SDOs) also perform testing services that are designed to ensure that products that ostensibly comply with a standard actually work together. SDOs frequently call this process “certification,” and authorize implementers that pass the testing process to use a logo or similar mark. Certification marks are a type of trademark that would seem to be tailor-made for this process. Our empirical analysis shows that SDOs use certification marks only relatively rarely, however. This dissonance is striking, providing insight into both the remarkably sophisticated …

Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.

Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is …

Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey

Faculty Scholarship

I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Law Library Blog (March 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Brand New World (Parallel Session 1.B. - Trademarks), Christine Farley

Presentations

By American University Washington College of Law, Texas A&M University School of Law, and University of Utah S.J. Quinney College of Law.

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey

Faculty Scholarship

Fifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this "new piracy paradox": a legal regime that ostensibly punishes piracy in a culture in which it is …

Temporality In A Time Of Tam, Or Towards A Racial Chronopolitics Of Intellectual Property Law, Anjali Vats

Articles

This Article examines the intersections of race, intellectual property, and temporality from the vantage point of Critical Race Intellectual Property ("CRTIP"). More specifically, it offers one example of how trademark law operates to normalize white supremacy by and through judicial frameworks that default to Euro-American understandings of time. I advance its central argument-that achieving racial justice in the context of intellectual property law requires decolonizing Euro-American conceptions of time by considering how the equitable defense of laches and the judicial power to raise issues sua sponte operate in trademark law. I make this argument through a close reading of the …

Offensive Mark Owners Have An Enforcement Problem, Yvette Joy Liebesman

All Faculty Scholarship

In Iancu v. Brunetti, the Supreme Court held that the Lanham Act 2(a) bars for "immoral" or "scandalous" marks are facially unconstitutional viewpoint discrimination, and thus violate a trademark owner’s First Amendment rights. Brunetti, as well as its predecessor, Matal v. Tam, focused entirely on how the government might generate viewpoint discrimination at the point of trademark registration. The Court did not consider whether enforcement of trademarks—via courts of law, Customs and Border Protection, or the International Trade Commission—is government speech, and thus exempt from First Amendment free speech scrutiny. Yet the Court’s seminal holding of Shelley v. Kraemer illustrates …

Trademark's 'Ship Of Theseus' Problem, Matthew T. Bodie

All Faculty Scholarship

The story of the ship of Theseus has long presented a puzzle over the nature of identity. Preserving the boat over time, the ancient Greeks would remove its wooden planks as they rotted and replace them with new planks. The question arose: was this still the same ship?

The problem hits at an issue that is critical to trademark law but has largely been overlooked: namely, what is the identity of the entity that holds the mark? And how do we determine whether that has changed over time? The law provides straightforward answers: it assigns the mark to the business …

A Historical Note On The Assignment Of Pesticide Common Names, Jorge L. Contreras

Utah Law Faculty Scholarship

Thousands of pesticides, herbicides, and related chemical products are used today to control disease-bearing insect populations and enable large-scale agricultural production that feeds much of the world. This short note traces the history of one small but important aspect of this industry—the assignment of common names to pesticides and related products. The little-known history of pesticide common names is illustrative of a few important points. First, it demonstrates the trend exhibited in many fields for the development of standards to migrate from a governmental agency to a US-based standards organization to an international standards organization. Second, it evidences the concern …

First Sale And Exhaustion, Jorge L. Contreras

Utah Law Faculty Scholarship

This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions: Theory and Practice" addresses issues of first sale and exhaustion for licensing transactions involving patents, copyrights and trademarks. Among the issues considered are licensing versus sale of software, patent exhaustion, post-sale restrictions, international exhaustion and gray market imports.

Immoral Trademarks After Brunetti, Ned Snow

Faculty Publications

For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection—the bars to “immoral” and “scandalous” marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could “disparage” others. The Court reasoned that to disparage is to offend, and the ability to offend …

Law And Authors: A Legal Handbook For Writers (Introduction), Jacqueline D. Lipton

Book Chapters

Drawing on a wealth of experience in legal scholarship and publishing, Professor Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, academic, journalism, freelance content development). This introductory chapter outlines the key legal and business issues authors are likely to face during the course of their careers, and emphasizes that most legal problems have solutions so law should never be an excuse to avoid writing something that an author feels strongly about creating. The larger work draws from case studies and hypothetical examples to address issues of copyright …

Valuing The Freedom Of Speech And The Freedom To Compete In Defenses To Trademark And Related Claims In The United States, Jennifer E. Rothman

All Faculty Scholarship

This book chapter appears in the CAMBRIDGE HANDBOOK ON INTERNATIONAL AND COMPARATIVE TRADEMARK LAW, edited by Jane C. Ginsburg & Irene Calboli (Cambridge Univ. Press 2020). The Chapter provides an overview of the defenses to trademark infringement, dilution, and false endorsement claims that serve the goals of free expression and fair competition. In particular, the Chapter covers the defenses of genericism, functionality, descriptive and nominative fair use, the Rogers test, statutory exemptions to dilution claims, and the questions of whether and how an independent First Amendment defense applies in light of recent Supreme Court decisions.

In addition to providing a …

Misappropriation-Based Trademark Liability In Comparative Perspective, Jeremy N. Sheff

Faculty Publications

(Excerpt)

The anti-misappropriation principle, at its core, is that it is wrongful and therefore actionable for a competitor to gain a commercial advantage from the efforts of another, even if that advantage does not directly harm the person whose efforts have been misappropriated. This principle appears to be a deep theoretical commitment of modern intellectual property law. And nowhere in intellectual property law is the anti-misappropriation impulse more directly implicated than in the context of conspicuous consumption.

As I have written about elsewhere, modern consumers engage in conspicuous consumption of branded goods to signal social affiliation and identity, and to …

Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey

Faculty Scholarship

This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.

In brief, Against Progress describes how in the 20th century intellectual property …

Response To Oliar And Stern: On Duration, The Idea/Expression Dichotomy, And Time, Wendy J. Gordon

Faculty Scholarship

Courts often use possession to determine who should own unclaimed resources. Yet, as Oliar and Stern demonstrate, the concept of possession is little more than a metaphor, capable of being applied to a broad range of phenomena. The authors helpfully deploy “time” as a metric to sort through the rules determining what should count as possession, and they survey the likely costs and benefits attached to choosing earlier versus later events as triggers for acquiring title.

With those tools in hand, Oliar and Stern employ “time” and the analogy of physical possession to address problems in copyright, patent, and trademark …