Law Commons^™

Teaching Without Infringement: A New Model For Educational Fair Use , David A. Simon

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Public As Creator And Infringer: Copyright Law Applied To The Creators Of User-Generated Video Content , David E. Ashley

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Copyright Or Trademark? Can One Boy Wizard Prevent Film Title Duplication?, Anna Phillips

San Diego International Law Journal

This Comment will examine the various approaches that India, the United Kingdom, and the United States take in dealing with film title disputes. Second, this Comment will discuss a case brought by Warner Brothers regrding a Harry Potter film title dispute in India and how the outcome of the case affects title infringement issues... Finally, this Comment will discuss a possible loophole in current trademark regulations regarding film titles that will support the argument that countries should use both copyright and trademark law to minimize the release of film titles that are similar or identical to those already on the …

Copyright Infringement And Harmless Speech, Christina Bohannan

Christina Bohannan

Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required …

Reconciling Fair Use And Trademark Use, Margreth Barrett

Margreth Barrett

This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship of the Lanham Act’s trademark use requirement to the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate the defendant’s “trademark use” as part of its case-in-chief is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark” only to describe its goods or services. These two “use” doctrines …

Custom, Comedy, And The Value Of Dissent, Jennifer E. Rothman

All Faculty Scholarship

In this essay, I comment on Dotan Oliar and Christopher Sprigman's article, There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008). Their study of the quasi-intellectual property norms in the stand-up comedy world provides yet another compelling example of the phenomenon that I have explored in which the governing intellectual property regime takes a backseat to social norms and other industry customs that dominate the lived experiences of many in creative fields. The microcosm of stand-up comedy reinforces my concern that customs are being used to …

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Copyright Harm And The First Amendment, Christina Bohannan

Christina Bohannan

Abstract Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is …

Fair Game: The Application Of Fair Use Doctrine To Machinima. , Christopher Reid

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

To © Or Not To ©? Copyright And Innovation In The Digital Typeface Industry, Jacqueline D. Lipton

Jacqueline D Lipton

Intellectual property rights are often justified by utilitarian theory. However, recent scholarship suggests that creativity thrives in some industries in the absence of intellectual property protection. These industries might be called IP’s negative spaces. One such industry that has received little scholarly attention is the typeface industry. This industry has recently digitized. Its adoption of digital processes has altered its market structure in ways that necessitate reconsideration of its IP negative status, with particular emphasis on copyright. This article considers the historical denial of copyright protection for typefaces in the United States, and examines arguments both for and against extending …

Vol. Ix, Tab 46 - Ex. 1 "Fair Use Of Trademark Terms In Some Creatives", Google

Rosetta Stone v. Google (Joint Appendix)

No abstract provided.

Global Warming Trend? The Creeping Indulgence Of Fair Use In International Copyright Law, Richard J. Peltz-Steele

Faculty Publications

In her article Toward an International Fair Use Doctrine in 2000, Professor Ruth Okediji hypothesized that the internationalization of copyright law would threaten the freedom of expression if some doctrine akin to U.S. “fair use” were not established as an international legal norm. Acknowledging the central concern of the Okediji article, this paper analyzes research and legal developments since that article to determine how the present state of the “fair use” concept in international copyright law differs from its state in 2000. The paper concludes that in the last eight years, though there has been no formal adoption of an …

Looking For Fair Use In The Dmca's Safety Dance, Ira Nathenson

Ira Steven Nathenson

Like a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ("DMCA") provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the "third wheel," the users of internet services. Even Senator John McCain - who in 1998 voted for the DMCA - wrote in exasperation to YouTube after some of his presidential campaign videos were removed due to take-downs. McCain …

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation-the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel Gervais

Vanderbilt Journal of Entertainment & Technology Law

Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative web and perhaps best epitomized by the remix phenomenon. This Article considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation--the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

"Transformative" User-Generated Content In Copyright Law: Infringing Derivative Works Or Fair Use?, Mary W.S. Wong

Vanderbilt Journal of Entertainment & Technology Law

In the United States, the line between the type and level of transformation required for a copyrightable derivative work and that required to constitute fair use has not been drawn clearly. With the rise of user-generated content, this question (which arises in two distinct copyright contexts) has become even more important. At the same time, copyright law has generally shied away from defining authorship as a legal concept, preferring instead to develop and rely on the related (but not identical) concept of originality. This has resulted in a low copyrightability threshold that does not adequately account for the fact that …

Is There Such A Thing As Postmodern Copyright?, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

Back in 1992, artist/entrepreneur Jeff Koons suffered a humiliating setback when the United States Court of Appeals for the Second Circuit repudiated the suggestion that his reuse of objects from public culture might constitute a "fair use" defense to a copyright infringement claim. Fourteen years later, in a case that again involved a photographer's claim of copyright infringement, Koons triumphed in the same judicial forum. What had changed? This Article explores, in particular, one among a variety of alternative explanations: Koons may have caught the very leading edge of a profound wave of change in the social and cultural conceptualization …

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

All Faculty Scholarship

For centuries, the fair use doctrine has been the main - if not the exclusive - bastion of user rights. Originating in the English court of equity, the doctrine permitted users under appropriate circumstances to employ copyrighted content without consent from the rightsholder. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of such measures even for fair use purposes, has diminished the ability of fair use …

You Can't Always Get What You Want, But If You Try Sometimes You Can Steal It And Call It Fair Use: A Proposal To Abolish The Fair Use Defense For Music, William Henslee

Journal Publications

The fair use doctrine in copyright has become the excuse for every creatively challenged author who gets caught using someone else's intellectual property without paying for it and tries to pass it off as his or her own. Fair use has also become the means to use someone else's work for purposes unrelated to the original without paying for the use.

While there are scholars who believe fair use should be more widely applicable than it already is, this Article will discuss how the fair use defense in music has been expanded far beyond the original legislative intent and has …