Law Commons^™

The New Cybersquatters: The Evolution Of Trademark Enforcement In The Domain Name Space, Michael Karanicolas

Fordham Intellectual Property, Media and Entertainment Law Journal

The domain name space has become a particularly contentious area of trademark enforcement as a result of the growth of online commerce, an intense competition for popular domain names, and new conceptual challenges stemming from the borderless and textual nature of the medium. In response, the Internet Corporation for Assigned Names and Numbers (“ICANN”), a global non-profit which oversees the domain-name space, has implemented a highly sophisticated set of rights-protection mechanisms. This Article examines the scope of trademark protections applied under ICANN’s rights protection mechanisms to demonstrate that they have evolved far beyond their traditional consumer protection function; indeed, they …

Fame: Ownership Implications Of Intellectual Property And Agency Law, Max Stul Oppenheimer

Fordham Intellectual Property, Media and Entertainment Law Journal

In the pre-internet era, it was difficult to reach a wide audience without the help of a professional organization, so as a practical matter control typically rested with distributors rather than with talent. Now that direct public distribution is easy and inexpensive, distributors’ practical control has greatly diminished, and it is therefore important to consider the legal principles that govern the control of the use of “fame.” This Article defines fame as a bundle of intellectual property rights and analyzes the ownership of those rights under intellectual property and agency theories.

Substantial Similarity And Junk Science: Reconstructing The Test Of Copyright Infringement, Robert F. Helfing

Fordham Intellectual Property, Media and Entertainment Law Journal

As the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.

Tear Down This Wall?: The Destruction Of Sanctioned Street Art Under U.S. And Italian Law, Sara Rosano, Birgit Kurtz

Fordham Intellectual Property, Media and Entertainment Law Journal

The United States and Italy are important countries for art and artists, including “street art”—also known as “aerosol art.” How does the law treat street artists in the two countries? Specifically, what are the legal consequences if an artist creates aerosol art on a wall or building with the property owner’s permission, and the property owner tears down the wall or building, thus destroying the artwork? In the United States, the 2018 decision in the 5Pointz case provided a detailed analysis of the applicable law; the court found in favor of a group of aerosol artists against the property owner. …

Caveat Vendor: A Call To Reform The Scope Of Rights Of Withdrawal For Off-Premises Contracts Under U.S. Consumer Protection Laws With Respect To The Auction Of Art, Sarah Fabian Maramarosy

Fordham Intellectual Property, Media and Entertainment Law Journal

As sales of art at auction become increasingly popular and accessible, an overlooked consumer right may cause sellers of art to get “burned.” At its core, the auction process is intended to establish the price of a difficult-to-value object of art, therefore, the underlying philosophy of an auction is that sales are final. However, cooling-off rules in U.S. off-premises contracts are broad enough that auction house contracts can potentially fall within the ambit of these rules, giving rise to the consumer’s right to cancel the contract.

Arguably, permitting consumers to cancel in remorse undermines the premise of an auction and …

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

Fiddling With Federal Circuit Precedent: The Commercial And Qualitative Impact Of Recent Supreme Court Reversals On The U.S. Patent System, Christopher J. Hamersky

Fordham Intellectual Property, Media and Entertainment Law Journal

Prior to 2006, the Court of Appeals for the Federal Circuit enjoyed a fairly laissez-faire relation with the Supreme Court of the United States, enabling it to develop a patent law jurisprudence that patent practitioners could confidently rely on given that it had remained relatively stable for several decades. However, in 2006, the Supreme Court reviewed eBay v. MercExchange and subsequently began a string of frequent Federal Circuit reversals that have caused significant change to the U.S. patent system. Whereas the Supreme Court rarely took up patent appeals in the Federal Circuit’s early history, it now routinely reviews patent questions …

The Prison Of Convenience: The Need For National Regulation Of Biometric Technology In Sports Venues, Kirsten Flicker

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, biometric data has crept its way into sports venues. In 2015, Major League Baseball began to use fingerprinting at stadium entrances. More recently, reporters have alerted spectators to the use of facial recognition technology in arenas such as Madison Square Garden. Proponents of these developments insist that the technology conveniences spectators, increases venue security, and enhances the overall spectator experience. Yet these claims fail to take into account the possibility of irremediable data breaches, the inaccuracies in facial recognition technology, and the privacy and unfair and deceptive trade practice concerns this technology raises. Further, there is an …

The All Substantial Rights Doctrine: A Second Look, Mark J. Abate, James Breen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Vigilance In The Twenty-First Century: An Update, Peter S. Sloane

Fordham Intellectual Property, Media and Entertainment Law Journal

The trademark laws impose a duty upon brand owners to be vigilant in policing their marks, lest they be subject to the defense of laches, a reduced scope of protection, or even death by genericide. Before the millennium, it was relatively manageable for brand owners to police the retail marketplace for infringements and counterfeits. The Internet changed everything.

In ways unforeseen, the Internet has unleashed a tremendously damaging cataclysm upon brands—online counterfeiting. It has created a virtual pipeline directly from factories in China to the American consumer shopping from home or work. The very online platforms that make Internet shopping …

Bounty Hunters For Algorithmic Cartels: An Old Solution For A New Problem, Aleksandra Lamontanaro

Fordham Intellectual Property, Media and Entertainment Law Journal

In light of the reality that pricing algorithms allow commercial actors to perform all phases of their price-fixing conspiracies without leaving behind trails of traditional incriminating evidence, the scarcity of algorithmic cartels prosecutions is hardly surprising. Given well-documented evidence that the authorities struggle in their efforts to detect even conventional price-fixing cartels, it is imperative to come up with new tools for detecting algorithmic cartels, which have unprecedented potential to harm consumers if left ignored. This Note investigates algorithmic capabilities to collude, as well as legal and technical challenges that governmental authorities face in confronting such collusion. This Note then …

Fre-Bird: An Evidentiary Tale Of Two Colliding Copyrights, Daniel Abowd

Fordham Intellectual Property, Media and Entertainment Law Journal

Sound recordings are not musical compositions. Sound recordings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evaluating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments?

Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: …

Should The Ncaa Have To Pay? Long-Term Injuries In College Athletics, Improper Assumptions Of Risk, And Coverage Of Medical Expenses After College, Alexandrea Jacinto

Fordham Intellectual Property, Media and Entertainment Law Journal

Student-athletes spend years training, perfecting their sport, and working hard in school in order to make it to the big leagues: Division I College Athletics. However, when student-athletes finally get there, they are met with empty promises, and often leave with injuries that no one took the time to warn them about. That is because, despite being told that they must sign an agreement with the National Collegiate Athletic Association (“NCAA”) which binds them to the organization’s rules, athletes learn quickly that the other side of that agreement is rarely, if ever, upheld when they need it. Courts fail to …

Selecting Scrutiny In Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape Of A Strict Scrutiny World After Becerra And Janus, And A First Amendment Interests-And-Values Alternative, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in …

Pain Mismanagement: The Opioid Problem In The Nfl, Dylan Mcgowan

Fordham Intellectual Property, Media and Entertainment Law Journal

In 2014 and 2015, two groups of former National Football League (“NFL”) players brought lawsuits against the NFL for its handling and distribution of opioids and other dangerous painkillers. While neither lawsuit has succeeded in its goal of addressing the painkiller problem, they brought to light the broken pain management culture of the NFL and the health risks these medications pose to both active and former players. Addressing the opioid problem should be a top priority for the NFL and the National Football League Players’ Association (“NFLPA”). This Note examines the pain management crisis in the NFL, and analyzes the …

The Dinosaur In The Living Room: A Proposal To Enable Academic Access To Fossils Discovered On Private Land, Sara K. Mazurek

Fordham Intellectual Property, Media and Entertainment Law Journal

The United States has been a major source of scientifically significant paleontological discoveries over the course of its history. In addition to invaluable primary source material for the study of evolution and climate change, American paleontology has additionally been invoked as symbols of American power since the founding of the country. Even though fossils are prominent national heritage, the United States today only uniformly regulates their excavation and use on federal public lands through the Paleontological Resources Preservation Act. When fossils are discovered on private land, landowners and those with whom they contract often sell them to private collectors, which …

The Regulation Of Cryptocurrencies: Between A Currency And A Financial Product, Hadar Y. Jabotinsky Dr.

Fordham Intellectual Property, Media and Entertainment Law Journal

Cryptocurrencies are electronically generated and stored currencies by which users can trade either real or virtual objects with one another. As these digital assets gain popularity, the issue of how to regulate them becomes more pressing. Cryptocurrencies are attractive due in part to their decentralized, peer-to-peer structure. This makes them an alternative to national currencies which are controlled by central banks. Given that these cryptocurrencies are already replacing some of the “regular” national currencies and financial products, the question then arises—should they be regulated? And if so, how? This paper draws the legal distinction between cryptocurrencies which are in fact …

Protectable “Art”: Urinals, Bananas, And Shredders, Richard H. Chused

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative souls have long played with our imaginations, as well as our tastes, about what art may be. The resulting absurdist, dada, and everyday object art forces us to step back and ask a few intellectual property questions about what this art has done, undone, or reconstructed in the copyright world. The Copyright Act grants protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This Article explores how pranksterism, eccentricity, …

Creation, Destruction, And The Future Of Fashion, Susan Scafidi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Fashion(Ing) A Political Statement: A Review Of The Legal & Social Issues That Arise From Banned Political Clothing And Other Controversial Fashion Items In Light Of The U.S. Supreme Court’S Decision In Minnesota Voters Alliance V. Mansky, Joyce Boland-Devito

Fordham Intellectual Property, Media and Entertainment Law Journal

Does the U.S. Supreme Court believe that the Free Speech Clause of the First Amendment includes freedom of expression in our clothing? The answer is yes! This Article will show that fashion can make a strong political statement (or misstatement) in the court of law as demonstrated by the U.S. Supreme Court’s recent decision striking down Minnesota’s ban on wearing “political apparel” to vote in Minnesota Voters Alliance v. Mansky. The discussion of this case will include quotes from J. David Breemer, Esq., the attorney who represented the Minnesota Voters Alliance. This Article will examine related U.S. Supreme Court …

Fashion's Destruction Of Unsold Goods: Responsible Solutions For An Environmentally Conscious Future, Ariele Elia

Fordham Intellectual Property, Media and Entertainment Law Journal

Over the past two years, headlines of fast-fashion and luxury brands burning their merchandise have flooded media outlets. While this came as a shock to the general public, it has actually been a standard industry practice for decades. As societal norms are leaning more towards environmentally conscious practices, destroying unsold products is no longer viewed as an acceptable option. Brands are facing increased scrutiny related to their environmental impact—such as the amount of textile waste that ends up in a landfill—and how they address the issue. While the media have criticized brands for these practices, they have not suggested long-term …

Ai-Generated Fashion Designs: Who Or What Owns The Goods?, Caen A. Dennis

Fordham Intellectual Property, Media and Entertainment Law Journal

As artificial intelligence (“AI”) becomes an increasingly prevalent tool in a plethora of industries in today’s society, analyzing the potential legal implications attached to AI-generated works is becoming more popular. One of the industries impacted by AI is fashion. AI tools and devices are currently being used in the fashion industry to create fashion models, fabric designs, and clothing. An AI device’s ability to generate fashion designs raises the question of who will own the copyrights of the fashion designs. Will it be the fashion designer who hires or contracts with the AI device programmer? Will it be the programmer? …

Double Jeopardy: Patents Of Invention As Contracts, Invention Disclosure As Consideration, And Where Oil States Went Wrong, N. Scott Pierce

Fordham Intellectual Property, Media and Entertainment Law Journal

Patents in England were once favors granted by the King with the requirement that the subject matter be practiced, or worked, for the benefit of the public. However, by the late eighteenth century patents were viewed as contracts with the government. Concomitant with this shift, the requirement to practice an invention was replaced by submission of a written specification disclosing to the public how to work the subject matter of the patent. In essence, advancement of the public good by grant of an exclusionary right to practice an invention at royal discretion was substituted with public disclosure as consideration for …

An Instance Of Open Hardware: A Different Approach To Free And Open Source Hardware Licensing, Timothy Murphy

Fordham Intellectual Property, Media and Entertainment Law Journal

As open source software (“OSS”) has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License (“GPL”), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well-known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of the …

Down The Rabbit Hole: Applying A Right To Be Forgotten To Personal Images Uploaded On Social Networks, Eugenia Georgiades

Fordham Intellectual Property, Media and Entertainment Law Journal

The right to be forgotten has been the subject of extensive scrutiny in the broad context of data protection. However, little consideration has been given to the misuse of personal images that are uploaded on social networks. Given the prevalent use of online and digital spaces, social networks process and use various forms of data, including personal images that are uploaded by individuals. The potential for misuse of images is particularly acute when users upload images of third parties. In light of the European Union’s enshrinement of the “right to be forgotten” amid provisions of the General Data Protection Regulation …

Movements, Moments, And The Eroding Antitrust Consensus, Michael Wolfe

Fordham Intellectual Property, Media and Entertainment Law Journal

Timothy Wu, The Curse of Bigness: Antitrust in the New Gilded Age (Columbia Global Reports, 2018). $14.99.

Timothy Wu’s book, The Curse of Bigness, offers a brief history on and critical perspective of antitrust law’s development over the last century, calling for a return to a Brandeisian approach to the law. In this review-essay, I use Wu’s text as a starting point to explore antitrust law’s current political moment. Tracing the dynamics at play in this debate and Wu’s role in it, I note areas underexplored in Wu’s text regarding the interplay of antitrust law with other forms of …