Law Commons^™

Justice Between Authors, Dawn C. Nunziato

Journal of Intellectual Property Law

Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent …

Martha Graham, Professor Miller And The "Work For Hire" Doctrine: Undoing The Judicial Bind Created By The Legislature, Nancy S. Kim

Journal of Intellectual Property Law

The current work for hire doctrine, as embodied by 17 U.S.C. Sections 101 and 201 and interpreted by the judiciary, provides a default rule of copyright ownership in favor of employers where a work is created by an employee in the scope of employment. In the absence of a written agreement, a finding that an engagement is a work for hire under the statute automatically results in all ownership being vested in the employer. This result often contradicts business norms and the understanding of one or both of the parties. In this Article, the author advocates abolishing the all-or-nothing concept …

The Price Of Social Norms: Towards A Liability Regime For File-Sharing, Daniel J. Gervais

Journal of Intellectual Property Law

The paper starts by asking whether P2P file-sharing of music can be stopped. Based on a discussion of (a) the interaction among law (regulation), technology and the market and (b) relevant social norms, the paper takes the view that it may not be possible to stop file-sharing. The paper then turns to an analysis of the economics and structure of a viable licensing model that could be implemented now without legislative or technological changes. The paper argues that P2P licensing could be good business. The paper ends with a brief look at (a) whether the licensing model could be exported …

The Future Of Music: Reconfiguring Public Performance Rights, Gary Myers, George Howard

Journal of Intellectual Property Law

No abstract provided.

Copyright In A Nutshell For Found Footage Filmmakers, Brian L. Frye

Law Faculty Popular Media

Found footage is an existing motion picture that is used as an element of a new motion picture. Found footage filmmaking dates back to the origins of cinema. Filmmakers are practical and frugal, and happy to reuse materials when they can. But found footage filmmaking gradually developed into a rough genre of films that included documentaries, parodies, and collages. And found footage became a familiar element of many other genres, which used found footage to illustrate a historical point or evoke an aesthetic response.

It can be difficult to determine whether found footage is protected by copyright, who owns the …

If It’S Broke, Fix It: Fixing Fixation, Megan M. Carpenter

Law Faculty Scholarship

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while …