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Articles 1 - 30 of 35
Full-Text Articles in Law
Rio Grande: The Mp3 Showdown At Highnoon In Cyberspace, Paul Veravanich
Rio Grande: The Mp3 Showdown At Highnoon In Cyberspace, Paul Veravanich
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
The Rational Basis Of Trademark Protection Revisited: Putting The Dilution Doctrine Into Context, Mathias Strasser
The Rational Basis Of Trademark Protection Revisited: Putting The Dilution Doctrine Into Context, Mathias Strasser
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Puzzles Of The Zero-Rate Royalty, Eli Greenbaum
Puzzles Of The Zero-Rate Royalty, Eli Greenbaum
Fordham Intellectual Property, Media and Entertainment Law Journal
Patentees increasingly exploit their intellectual property rights through royalty-free licensing arrangements. Even though patentees using such frameworks forfeit their right to trade patents for monetary gain, royalty-free arrangements can be used to pursue other significant commercial and collaborative interests. This Article argues that modern royalty-free structures generate tension between various otherwise well-accepted doctrines of patent remedies law that were designed for more traditional licensing models. As such, current doctrines provide conflicting frameworks for evaluating the royalty-free arrangement, and offer inconsistent approaches for determining the appropriate remedy for their breach. This discord grows out of courts’ inadequate attention to non-monetary consideration …
Who’S Afraid Of Forever 21?: Combating Copycatting Through Extralegal Enforcement Of Moral Rights In Fashion Designs, Irina Oberman Khagi
Who’S Afraid Of Forever 21?: Combating Copycatting Through Extralegal Enforcement Of Moral Rights In Fashion Designs, Irina Oberman Khagi
Fordham Intellectual Property, Media and Entertainment Law Journal
This Article examines the often underexplored theory of personality rights, or moral rights, as a justification for protection of intellectual property in the context of protection of fashion designs. Traditional forms of intellectual property protection have thus far proven inadequate to protect the overall design of an article of clothing or accessory; rather, most are only sufficient to protect portions of the design. Advocates for strengthened intellectual property rights regimes traditionally invoke utilitarian rights, or the need to provide an incentive for continued generation of new ideas. But these utilitarian theories appear to be less relevant in the fashion world, …
Gif Gaffe: How Big Sports Ignored Lenz And Used The Dmca To Chill Free Speech On Twitter, Andrew T. Warren
Gif Gaffe: How Big Sports Ignored Lenz And Used The Dmca To Chill Free Speech On Twitter, Andrew T. Warren
Fordham Intellectual Property, Media and Entertainment Law Journal
Many major sports leagues including the National Football League, Major League Baseball, and Ultimate Fighting Championship have consistently used the Digital Millennium Copyright Act (“DMCA”) to remove user-created GIFs, Vines, and related content that make use of the leagues’ copyrighted broadcast material on Twitter. This Article analyzes Twitter users’ right of fair use in the leagues’ copyrighted material, while suggesting that sports leagues and their agents may not be following the Ninth Circuit’s Lenz v. Universal Music Corp.decision, which requires copyright owners to consider fair use before submitting DMCA takedown notices. Sports leagues’ protocol and actions towards GIFs and Vines …
The Non-Contractual Nature Of Privacy Policies And A New Critique Of The Notice And Choice Privacy Protection Model, Thomas B. Norton
The Non-Contractual Nature Of Privacy Policies And A New Critique Of The Notice And Choice Privacy Protection Model, Thomas B. Norton
Fordham Intellectual Property, Media and Entertainment Law Journal
Notice and Choice is the model for protecting privacy online in the United States. Under the model, users of online services are given notice about services information and privacy practices in the form of privacy policies. Based on this information, users can choose whether to use particular online services and whether to exercise any options for protecting their privacy that the services might offer. In theory, Notice and Choice seems like a sound regulatory mechanism. Indeed, state and federal regulatory agencies prefer the model as a basis for privacy enforcement action. But Notice and Choice faces harsh criticism from privacy …
Arbitration Without Law: Choice Of Law In Frand Disputes, Eli Greenbaum
Arbitration Without Law: Choice Of Law In Frand Disputes, Eli Greenbaum
Res Gestae
Recent arbitration between InterDigital and Huawei seems to demonstrate the purported advantages of arbitration as a means of dispute resolution. The warring parties subsumed their multiple suits across different jurisdictions and forums into a single binding arbitral process. By virtue of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”), the arbitral award would be enforceable across jurisdictions. But even an agreement to arbitrate requires agreement on certain basic matters. On the most fundamental level, it requires agreement on the substantive and procedural laws governing the dispute, as well as the situs—or location—of the …
The Second Circuit And The Development Of Intellectual Property Law: The First 125 Years, Kenneth A. Plevan
The Second Circuit And The Development Of Intellectual Property Law: The First 125 Years, Kenneth A. Plevan
Fordham Law Review
The Second Circuit has had a profound impact on copyright law. Judge Learned Hand’s decision in Nichols v. Universal Pictures Corp. helped define for later generations the fundamental idea/expression dichotomy. The transformative use doctrine has not been without its critics, but other leading decisions have helped write the rules of the road for the e-commerce era, both in the copyright and trademark contexts, as well as the right of publicity, albeit a creation of state statutory law, is generally considered an area of intellectual property and is covered in this article. Law school catalogs usually include trade secret law within …
Insta-Appropriation: Finding Boundaries For The Second Circuit’S Fair Use Doctrine After Campbell, Anna Schuler
Insta-Appropriation: Finding Boundaries For The Second Circuit’S Fair Use Doctrine After Campbell, Anna Schuler
Fordham Law Review
Copyright law’s current fair use landscape is riddled with unclear standards and old considerations forced upon new media. This is especially problematic in the context of digital appropriation of art from online social media platforms—an issue highlighted by Richard Prince’s exhibit “New Portraits,” in which he appropriated strangers’ Instagram photos for his own profit. Unless this situation is remedied, digital content creators will effectively lose their statutory copyright protections. Thus, when considering digital appropriation cases, courts should require a transformation of content rather than purpose, should elevate the weight of the fourth statutory factor, and should reinstate the “comment upon” …
What’S So Special About Patent Law?, Michael Goodman
What’S So Special About Patent Law?, Michael Goodman
Fordham Intellectual Property, Media and Entertainment Law Journal
The widespread belief that patent law is special has shaped the development of patent law into one of the most specialized areas of the law today. The belief in patent law’s exceptionalism manifests itself as two related presumptions with respect to the judiciary: first, that generalist judges who do not have patent law expertise cannot effectively decide patent cases, and second, that judges can develop necessary expertise through repeated experience with patent cases. Congress showed that it acquiesced to both views when it created the Federal Circuit and the Patent Pilot Program. In recent years, however, the Supreme Court has …
The Air Jordan Rules: Image Advertising Adds New Dimension To Right Of Publicity–First Amendment Tension, Stephen Mckelvey, Jonathan Goins, Frederick Krauss
The Air Jordan Rules: Image Advertising Adds New Dimension To Right Of Publicity–First Amendment Tension, Stephen Mckelvey, Jonathan Goins, Frederick Krauss
Fordham Intellectual Property, Media and Entertainment Law Journal
Every year, corporations spend on average nearly thirty-five billion dollars on sports-related marketing, ranging from stadium naming rights and promotional sponsorships, to commercials and endorsement deals. In mining through some of the potential legal traps, corporate advertisers understand that utilizing the name, image, or likeness of athletes or celebrities in marketing and promotional campaigns requires some form of consent and compensation. Corporations hire lawyers for “advertising clearance”: to ensure that slogans, logos, and images are available for use, and that video and music in audio-visual recordings are otherwise licensed. The concept of getting permission or authorization is relatively straight-forward. However, …
The Fourth Amendment Implications On The Real-Time Tracking Of Cell Phones Through The Use Of “Stingrays”, W. Scott Kim
The Fourth Amendment Implications On The Real-Time Tracking Of Cell Phones Through The Use Of “Stingrays”, W. Scott Kim
Fordham Intellectual Property, Media and Entertainment Law Journal
The rights secured to us by the Fourth Amendment were the driving force behind the American Revolution. Today, law enforcement seems to forget that fact when they use cell-site simulators, commonly referred to by the brand name “Stingray,” without first securing a warrant. These devices mimic cell phone towers and force cell phones near them to connect to the cell-site simulator instead of a tower, thereby allowing the user of the simulator device to track a cell phone to its precise location. Ninety-two percent of Americans own a cell phone and forty-six percent of smartphone users say they could not …
A Comparative Analysis Of The Nfl’S Disciplinary Structure: The Commissioner’S Power And Players’ Rights, Cole Renicker
A Comparative Analysis Of The Nfl’S Disciplinary Structure: The Commissioner’S Power And Players’ Rights, Cole Renicker
Fordham Intellectual Property, Media and Entertainment Law Journal
The power of professional sports commissioners to determine what is in the “best interests” of their respective sport is a significant aspect of sports today, and can be traced back to 1921, when the federal courts authorized then-Commissioner Kenesaw Mountain Landis to act with a broad range of discretion in protecting the “best interests” of baseball. This precedent set in motion a long history of commissioners using the “best interests” of the game power to accomplish various goals, and most recently has been used to discipline players for alleged misconduct. The Commissioner of the National Football League, Roger Goodell, has …
The Political Economy Of The Research Exemption In American Patent Law, Nicholas Short
The Political Economy Of The Research Exemption In American Patent Law, Nicholas Short
Fordham Intellectual Property, Media and Entertainment Law Journal
This Article approaches the research exemption, and related legal developments, as a case study in the political economy of patent law. Part I recounts the history of the research exemption, touching briefly on historical origins but emphasizing developments since the 1970s in legislative, executive, and judicial forums. It also examines changes during the same time frame in related areas of patent law, like the Bayh-Dole legislation and the attempted repeal of state immunity from patent infringement liability. These legal developments indirectly affected the research exemption, or implicated similar concerns about imbalance in the patent system and the use of patents …
Trademark’S Ebay Problem, Peter J. Karol
Trademark’S Ebay Problem, Peter J. Karol
Fordham Intellectual Property, Media and Entertainment Law Journal
This Article addresses the current debate over whether to extend, to trademark law, the rule in eBay, Inc. v. MercExchange, L.L.C. denying prevailing patent plaintiffs presumptive entitlement to injunctive relief. Its central concern, however, is not whether or how eBay should apply to trademark law, but rather the way in which the debate resurfaces structural flaws undermining foundational provisions of the Lanham Act. Namely, the Act purports to grant ex ante exclusive rights to mark owners against all confusingly similar uses, but then reserves discretion to district courts to deny statutory injunctive relief without further guidance. This ambiguity, a familiar …
“Going Viral” By Stealing Content: Can The Law Cure The Problem Of Viral Content Farming?, Sara Gates
“Going Viral” By Stealing Content: Can The Law Cure The Problem Of Viral Content Farming?, Sara Gates
Fordham Intellectual Property, Media and Entertainment Law Journal
Part I introduces the concept of viral content farming, examines its origins, points out how it differs from aggregation, and consid-ers the purpose behind the practice. The Part looks at how compa-nies such as Google and Facebook have responded, and examines the overall impact on journalism and the Internet. Part II presents a possible ethical solution within the journalism industry and consid-ers resolutions in the law by describing the “hot news” misappro-priation doctrine and copyright law. Part III scrutinizes three pro-posals and discusses why copyright law is the most appropriate solution to the problem, then analyzes content farming within the …
A Long-Overdue Reform: China’S Grant-Back Regime In Technology Transfer, Xiaoqiong Liu
A Long-Overdue Reform: China’S Grant-Back Regime In Technology Transfer, Xiaoqiong Liu
Fordham Intellectual Property, Media and Entertainment Law Journal
Technology transfer occurs when the owner of a technology grants access to that technology to another party. Today, companies consider technologies—as opposed to physical assets—the most important business assets that are directly tied to their products’ competitiveness. Intellectual property (“IP”) law protects those technologies. One type of technology transfer is contract manufacturing, where foreign companies employ Chinese companies to manufacture products for the Chinese markets. Contract manufacturing is beneficial to foreign companies because it saves them shipping costs and time. To facilitate contract manufacturing in China, however, foreign companies—often the owners of the technologies—must authorize Chinese companies access to their …
State Anti-Slapps And Erie: Murky, But Not Chilling, Yando Peralta
State Anti-Slapps And Erie: Murky, But Not Chilling, Yando Peralta
Fordham Intellectual Property, Media and Entertainment Law Journal
This Note compares the different treatment of state anti-SLAPP laws in federal courts, especially in light of the Supreme Court’s decision in Shady Grove. This Note posits two reasons why special motions to dismiss should not apply in federal courts sitting in diversity jurisdiction. First, state anti-SLAPPs conflict directly with Rules 12 and 56 of the Federal Rules of Civil Procedure because these Federal Rules directly address the question as to dismissal on the pleadings and on summary judgment. Second, a finding that the state anti-SLAPP procedures conflict with the Federal Rules will not frustrate legislatures’ interests in swatting down …
A Copyright Right Of Publicity, Reid Kress Weisbord
A Copyright Right Of Publicity, Reid Kress Weisbord
Fordham Law Review
This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging …
Musicians, Politicians, And The Forgotten Tort, Arlen W. Langvardt
Musicians, Politicians, And The Forgotten Tort, Arlen W. Langvardt
Fordham Intellectual Property, Media and Entertainment Law Journal
Election seasons regularly reveal uses of songs and recordings at campaign events and in campaign ads. Frequently, well-known performers who have recorded the songs object to the uses of the songs and recordings (and their recognizable voices). Often, the performers do not own the copyright to the songs or the recordings, so they have no copyright infringement claim to bring. Performers who seek legal relief against those responsible for the political uses have relied, thus far, on right of publicity claims or false endorsement claims under section 43(a) of the Lanham Act. However, judicial concerns about the proper reach and …
Locking Out Locke: A New Natural Copyright Law, Joseph A. Gerber
Locking Out Locke: A New Natural Copyright Law, Joseph A. Gerber
Fordham Intellectual Property, Media and Entertainment Law Journal
For decades lawyers, professors, philosophers, and law students have been trapped in an endless, two-sided debate regarding the justification for copyright law in the United States. On one side stand the utilitarians, who argue that modern American copyright law amounts to nothing more than positive law2 in the form of an economic incentive for authors to express themselves creatively. Natural law theorists, on the other hand, argue that there is some- thing more substantial behind the current copyright regime—that copyright is not merely a formulation of positive law, but a recogni- tion of philosophical principles of ownership inherent in the …
Trademark Trial And Appeal Board, Meet The Constitution, David S. Welkowitz
Trademark Trial And Appeal Board, Meet The Constitution, David S. Welkowitz
Fordham Intellectual Property, Media and Entertainment Law Journal
For many years, the Trademark Trial and Appeal Board has re-fused to address constitutional claims raised in the course of registration or cancellation proceedings. A recent example involves the Washington Redskins trademark, which is the subject of a cancellation proceeding now before a U.S. Court of Appeals. The Board’s refusal to address constitutional issues rests on the assumption that the Board lacks the authority to make constitutional decisions. That may seem odd, given the fact that the Board is an arm of the federal government, and its members are bound to uphold the Constitution. This Article examines the basis of …
Obviousness As Fact: The Issue Of Obviousness In Patent Law Should Be A Question Of Fact Reviewed With Appropriate Deference, Ted L. Field
Obviousness As Fact: The Issue Of Obviousness In Patent Law Should Be A Question Of Fact Reviewed With Appropriate Deference, Ted L. Field
Fordham Intellectual Property, Media and Entertainment Law Journal
One of the most common defenses that an accused infringer raises in a patent infringement lawsuit is that the patent claims at issue are invalid for obviousness. The question of obviousness is based on several factual determinations, and the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit should sensibly review these determinations with deference to the jury’s or trial court’s findings. But these courts instead treat the ultimate determination of obviousness as a question of law to be reviewed de novo. This Article challenges the correctness of this standard of review and argues that courts …
The Riddle Of The Mysterious Patent Dance Wrapped In An Enigma: Is The Patent Dance Of The Bpcia Optional Or Mandatory?, Dov Hirsch
Fordham Intellectual Property, Media and Entertainment Law Journal
Recently, the nature of one of the aspects of the Biosimilar, Price, Competition, and Innovation Act of 2009 (“BPCIA”) has been called into question: Is the “patent dance,” the structured patent dispute resolution process of the BPCIA, mandatory or optional? A mandatory patent dance requires a biosimilar applicant to comply with all its requirements, while an optional patent dance allows the biosimilar applicant to opt out of the entire dance if it so chooses. This question is important because it has the potential to affect that delicate balance of the BPCIA. This Note focuses on some of the consequential implications …
Public Transit Data Through An Intellectual Property Lens: Lessons About Open Data, Teresa Scassa
Public Transit Data Through An Intellectual Property Lens: Lessons About Open Data, Teresa Scassa
Fordham Urban Law Journal
This Article examines some of the challenges presented by the transition from ‘closed’ to open data within the municipal context, using municipal transit data as a case study. The particular lens through which this Article examines these challenges is intellectual property law. In a ‘closed data’ system, intellectual property law is an important means by which legal control over data is asserted by governments and their agencies. In an ‘open data’ context, the freedom to use and distribute content is a freedom from IP constraints. The evolution of approaches to open municipal transit data offers some interesting examples of the …
Collateral Damages: How The Smartphone Patent Wars Are Changing The Landscape Of Patent Infringement Damages Calculations, Martin West
Fordham Urban Law Journal
This Note addresses the diverging approaches to patent infringement damage calculations. Judge Alsup of the Ninth Circuit recently took a rare approach and selected Dr. James Kearl to testify as an independent damages expert in Oracle v. Google under Rule 706 of the Federal Rules of Civil Procedure. In contrast, Judge Posner of the Seventh Circuit recently dismissed the Apple v. Motorola lawsuit finding each party failed to present adequate evidence of their respective damages claims. Judge Koh of the Ninth Circuit took yet another approach using a more relaxed level of admissibility for expert testimony relating to infringement damage …
Using Copyright To Remove Content: An Analysis Of Garcia V. Google, Elizabeth Martin
Using Copyright To Remove Content: An Analysis Of Garcia V. Google, Elizabeth Martin
Fordham Intellectual Property, Media and Entertainment Law Journal
This Note will investigate how individuals attempt to use copyright law, instead of seeking damages for emotional distress or privacy, by using Garcia I and Garcia II as examples. Part I will provide background on Garcia I and Garcia II, the facts leading up to the lawsuit, the first decision and the criticism surrounding it, and the second decision. Part II will discuss what other legal methods Garcia may have used to achieve the same result and potentially obtain the same relief if she decided not to sue for copyright infringement. Part III will look beyond Garcia I and Garcia …
The Lost Language Of The First Amendment In Copyright Fair Use: A Semiotic Perspective Of The “Transformative Use” Doctrine Twenty-Five Years On, David Tan
Fordham Intellectual Property, Media and Entertainment Law Journal
It has been twenty-five years since Judge Pierre Leval published his iconic article, “Toward a Fair Use Standard,” urging that courts adopt a new guiding principle of “transformative use” to determine whether an unauthorized secondary use of a copy-righted work is fair. The Supreme Court’s emphatic endorsement of this approach in 1994 has resulted in a remarkable judicial expansion of the transformative use doctrine which today covers virtually any “creation of new information, new aesthetics, new in-sights and understandings.” While the Supreme Court reiterated in Golan v. Holder in 2012 that the fair use defense is one of copyright law’s …
Free And Open Source Software In Municipal Procurement:The Challenges And Benefits Of Cooperation, Justin C. Colannino
Free And Open Source Software In Municipal Procurement:The Challenges And Benefits Of Cooperation, Justin C. Colannino
Fordham Urban Law Journal
The use of free and open source software by municipal governments is the exception rather than the rule. This is due to a variety of factors, including a failure of many municipal procurement policies to take into account the benefits of free software, free software vendors second-to-market status, and a lack of established free and open source software vendors in niche markets. With feasible policy shifts to improve city operations, including building upon open standards and engaging with free software communities, municipalities may be able to better leverage free and open source software to realize fully the advantages that stem …
Gender Biases In Cyberspace: A Two-Stage Model, The New Arena Of Wikipedia And Other Websites, Shlomit Yanisky-Ravid, Amy Mittelman
Gender Biases In Cyberspace: A Two-Stage Model, The New Arena Of Wikipedia And Other Websites, Shlomit Yanisky-Ravid, Amy Mittelman
Fordham Intellectual Property, Media and Entertainment Law Journal
Increasingly, there has been a focus on creating democratic standards and norms in order to best facilitate open exchange of information and communication online―a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution for which social activists, intellectual property …