Law Commons^™

Privative Copyright, Shyamkrishna Balganesh

Vanderbilt Law Review

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Tribute: Elizabeth Chitwood, Jessica L. Haushalter

Vanderbilt Law Review

Elizabeth "Beth" Chitwood was one of the newest members of the Vanderbilt Law Review. Our community mourns her unexpected loss and is grateful for the time we were able to share with her. The following Tribute briefly highlights Beth's contributions to the Vanderbilt Law community and the Vanderbilt Law Review.

Keep Your Friends Close: A Framework For Addressing Rights To Social Media Contacts, Courtney J. Mitchel

Vanderbilt Law Review

A group of entrepreneurial recent college graduates starts a tutoring and test prep company focused on helping promising high school students get an edge on their college applications. Since the cost of print advertising exceeds the group's budget, they each actively promote the business on their personal social media accounts, garnering their first clients. They also create company accounts on Facebook, Linkedln, and Twitter, which clients join for easy, direct communication and quick access to information. Though all the founders contribute occasional posts and encourage their personal social media contacts to join the company accounts, one eventually becomes, in practice …

Costly Intellectual Property, David Fagundes, Jonathan S. Masur

Vanderbilt Law Review

Patents and copyrights originate from the same constitutional source of law,1 and for this reason they are in some respects similar. Patent and copyright law alike extend to inventors and authors exclusive rights over the fruits of their intellectual labors, enabling owners to extract value from intangible goods that would otherwise not be profitable. Both systems are premised on a utilitarian bargain, allowing inventors and authors to have socially costly monopoly interests in their inventions and works in order to encourage socially beneficial innovative and artistic production. And patents and copyrights both last only for finite periods, in contrast to …

What's In A Song? Copyright's Unfair Treatment Of Record Producers And Side Musicians, Gabriel J. Fleet

Vanderbilt Law Review

As they say in the music business, "It all begins with a song."' This is true from a commercial perspective, as it would be difficult to record albums, film videos, license music for video games, sell sheet music, or promote concerts without the basic building block of the musical composition. It is also true on the metaphysical level, because the organization of sounds into compositional form creates the necessary order that distinguishes music from noise.

Yet despite the centrality of the song, for legal purposes it is difficult to answer the question, "What is a song?" Or, to use a …

Special Project: Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

Copyright "Deja Vu": A New Definition Of "Publication" Under The Copyright Act Of 1909, W. Russell Taber

Vanderbilt Law Review

"I have a dream," Dr. Martin Luther King, Jr., declared from the steps of the Lincoln Memorial during the March on Washington in 1963. About 200,000 people had gathered to listen to Dr. King's famous speech and to participate in the events of the day. Millions more witnessed the live broadcast on major television and radio stations. Others read the text of the speech in newspapers across the country.

Just over a month later, Dr. King applied for federal copyright protection for the speech. Under federal copyright law at the time, an owner who published a work prior to complying …

Introduction: Special Project - Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

Perfecting Patent Prizes, Michael Abramowicz

Vanderbilt Law Review

When anthrax attacks recently led to a run on the patented antibiotic drug Cipro, politicians and commentators suggested that the government consider purchasing generic alternatives. Some used the occasion to illustrate what they perceived as a broader problem with patent protection: that pharmaceutical companies seeking profits would not allow the sick to obtain access to needed medications. The argument repeated a familiar refrain in the intellectual property debate, as a long history of articles has inquired whether society would be better off with no patent or copyright law at all. Even recently, commentators have questioned the broad scope of intellectual …

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

Copyright And The Perfect Curve, Julie E. Cohen

Vanderbilt Law Review

Everyone agrees that the purpose of the copyright system is to promote progress.' At the same time, though, skepticism about the law's ability to define the substance of progress runs deep within copyright case law and theory. Legal decisionmakers and scholars have quite properly doubted their own ability to evaluate artistic or literary merit, and have worried that efforts to do so would result in an inappropriately elitist and conservative standard. In addition, there is room for substantial debate about whether the metaphor of forward motion leaves out other important measures of what "progress" is or might be. This agnosticism …

Market Hierarchy And Copyright In Our System Of Free Expression, Neil W. Netanel

Vanderbilt Law Review

If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.' Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not require economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater …

Copyright And Democracy: A Cautionary Note, Christopher S. Yoo

Vanderbilt Law Review

Democratic theories of copyright have become quite the rage in recent years. A growing number of commentators have offered their views on the relationship between copyright law and the process of self-governance.' No scholar has been more committed to developing this perspective than Neil Netanel. In an important series of articles, Netanel has pursued a powerful and innovative project that attempts to reexamine copyright through the lens of democratic theory. His core concern is that the concentration of private wealth and power in communications and mass media is creating unprecedented disparities in the ability to be heard. The "speech hierarchy" …

Comment On "Lessons From Studying The International Economics Of Intellectual Property Rights", Paul Goldstein

Vanderbilt Law Review

Copyright is the "dog that didn't bark" in Keith Maskus's paper, "Lessons from Studying the International Economics of Intellectual Property Rights." Like virtually every other economic study of intellectual property and trade, the Maskus paper confines its examples and analysis to the industrial side of intellectual property-mainly patents and know-how-and leaves the authorial side-copyright-untouched. As a small step toward repairing this imbalance, and toward opening a corner of policy inquiry that has so far been largely unexamined, I would like here to make a few observations on copyright and trade in developing economies.

The regular omission of copyright from economic …

Asserting Copyright's Democratic Principles In The Global Arena, Neil W. Netanel

Vanderbilt Law Review

In a seeming blink of an eye, international bodies applying international law have effectively become the arbiters of domestic copyright law. World Trade Organization ("WTO") dispute settlement panels may now determine whether a nation's copyright law comports with the newly adopted Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS"),' and may authorize trade sanctions upon a finding of non-compliance. Of like import, the United Nations' World Intellectual Property Organization ("WIPO") increasingly serves as a favored venue for copyright industry and user groups to further their legislative agendas. Recent WIPO treaties have accordingly set the tone for proposed domestic legislation designed …

Intellectual Property Rights In Data?, J. H. Reichman, Pamela Samuelson

Vanderbilt Law Review

The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became …

Reexamining Copyright's Incentives-Access Paradigm, Glynn S. Lunney, Jr., Glynn Lunney

Vanderbilt Law Review

For the past three centuries, defining the appropriate scope of copyright has entailed an examination of incentives and access.' Broadening the scope of copyright increases the incentive to produce works of authorship and results in a greater variety of such works. Broadening copyright's scope, however, also limits access to such works both generally, by increasing their price, and specifically, by limiting the material that others can use to create additional works. Given these competing considerations, defining copyright's proper scope has become a matter of balancing the benefits of broader protection, in the form of increased incentive to produce such works, …

The End Of Copyright, David Nimmer

Vanderbilt Law Review

One December 8, 1994, Congress ended the experiment that it commenced on May 31, 1790, in the first Judiciary Act:' legislating an autonomous body of United States copyright law governed by the Copyright Clause of the Constitution. We witnessed, on December 8, a major change of constitutional proportions; even more significantly, we experienced the first tremors of certain tectonic shifts in United States sovereignty; and, perhaps most significantly, we undertook a sea change in defining the end that copyright serves, the identity of the master in the copyright sphere.

I refer to enactment of the Uruguay Round Agreements Act (the …

Free Speech, Copyright, And Fair Use, L. Ray Patterson

Vanderbilt Law Review

The copyright clause provides that "[the Congress shall have Power... To promote the Progress of Science. ..by securing for limited Times to Authors .. .the exclusive Right to their . . .writings ...."I The first amendment provides that "Congress shall make no law. . .abridging the freedom of speech, or of the press ."..."

Three modern developments portend a conflict between these two clauses of the Constitution: (1) the emergence of the doctrine that free speech encompasses the right to have access to, as well as the right to disseminate, ideas; (2) the elimination of the requirement of publication, which …

Blanket Licensing Of Music Performing Rights: Possible Solutions To The Copyright-Antitrust Conflict, Mary K. Kennedy

Vanderbilt Law Review

This Recent Development compares Buffalo Broadcasting with other blanket licensing decisions and predicts the reversal of Buffalo Broadcasting on appeal. Part II of this Recent Development discusses the organization and operation of the performing rights societies. Part III focuses on the pertinent antitrust principles and the history of antitrust litigation between the performing rights societies and various licensees. Part IV examines recent decisions addressing blanket licenses in which courts have used similar analyses yet reached differing results. Part V analyzes possible solutions to the conflict between antitrust and copyright laws in the blanket licensing context and concludes that resolution of …

Copyright, Congress And Technology: The Public Record, L. Ray Patterson

Vanderbilt Law Review

This early history of copyright would be of little more than antiquarian interest except that it demonstrates the source of the confusion regarding the function of copyright. Although generally viewed as a right of the author, copyright has continued to function as a trade regulation device. Before the advent of computers and copying machines, this point was of relatively little importance, but IBM and Xerox have complicated copyright law enormously. Thus, in attempting to isolate the issues, it is helpful to view the law of copyright as statutorily creating unfair competition based on the doctrine of misappropriation. It is both …

Private Copyright And Public Communication: Free Speech Endangered, Lyman R. Patterson

Vanderbilt Law Review

Copyright as it has developed is essentially a private copyright for private communications made public for profit. Theoretically,the right to copyright is derived from the act of creation, and the choice of making his creations public is that of the author. As the copyright clause makes clear, the purpose of the private monopoly of copyright is to encourage the author to make his creations available for public learning. Television, on the other hand, is primarily a medium of public communication that has as a major function the transmission of public information to the public. To apply the present law of …

Recent Cases, Vanderbilt Law Review Staff

Vanderbilt Law Review

Civil Rights--Private Education-Racially Discriminatory Admissions Policies Violate Right to Contract Provision of 42 U.S.C. § 1981

Plaintiffs, ' blacks who had been denied admission solely on the basis of their race to two all-white private schools that received no state aid,' sought damages and injunctive relief in federal district court contending that these rejections violated section 1981 of 42 U.S.C. by denying them the same right to contract as enjoyed by white citizens.

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Copyright--Telecommunications--CATV Importation of Distant Television Signals Constitutes Infringement Under Sections One (c) & (d) of the Copyright Act

Plaintiffs,' creators and producers of television programs,brought a …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Accountants--Auditors--Compliance with General Accounting Principles Not a Complete Defense To Criminal Fraud

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Administrative Law--Standing to Challenge Administrative Actions--Anyone Arguably Protected by Statute May Sue

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Constitutional Law--Abortion--Standard Excepting Abortions Done as "Necessary for the Preservation of the Mother's Life or Health" Held Unconstitutionally Vague

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Constitutional Law--Civil Rights--Discrimination by a Third Party in Connection with the Rental of Property Entitles the Injured Party to a Private Right of Damages Under Section 1982

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Constitutional Law--Double Jeopardy--Benton v. Maryland Applies Retroactively to State Criminal Convictions

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Copyright--Unfair Competition--Unauthorized Reproduction of Another's Recording for Resale Violates State Unfair Competition Doctrine

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Recent Cases, Law Review Staff

Vanderbilt Law Review

Recent Cases --

Constitutional Law--Obscenity--Materials May Be Obscene for Minors without Being Obscene for Adults

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Constitutional Law--Standing-Federal Taxpayer Has Standing To Challenge Federal Expenditures Violating Specific Constitutional Prohibition

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Copyright--Telecommunication--CATY Carriage of Copyrighted Material Does not Constitute Infringement

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Criminal Law--Exclusion for Cause of Prospective Jurors With Scruples Against Death Penalty Violates Due Process

The Common Law And Statutory Background Of The Law Of Musical Property, George D. Cary

Vanderbilt Law Review

This article comprises a brief but comprehensive presentation of the history and evolution of the law of musical copyright; it is particularly designed for the practitioner seeking a general view of musical copyright law before proceeding on to more specialized problems. After a discussion of the English and American history of musical copyright, the article examines the common law and statutory aspect of the subject, and concludes by discussing the international rules and conventions governing musical copyright.

Copyright Problems Of The Phonograph Record Industry, Sidney A. Diamond

Vanderbilt Law Review

This article addresses itself to several difficult questions. Are phonograph records copyrightable? What is the scope of a copyright owner's "mechanical reproduction right," and how exclusive is this right? What protection against infringement of the "recorded performance," as opposed to the musical composition incorporated in it, has the record manufacturer? What additional statutory protection might be granted in this area, and what of its constitutionality?

Parody And Burlesque -- Fair Use Or Copyright Infringement?, Law Review Staff

Vanderbilt Law Review

In Columbia Broadcasting System v. Loew's, Inc.,' the Supreme Court of the United States aroused great concern in the entertainment world when it affirmed (by an evenly divided court) a lower court decision enjoining CBS from producing a television burlesque by comedian Jack Benny of the motion picture Gaslight. Plaintiff Loew's had claimed an infringement of their copyright. CBS countered with the contention that their parody was a "fair use" of plaintiff's work. In affirming, the Supreme Court, in its initial consideration of this issue, placed its imprimatur upon a decision which takes the position that parody and burlesque do …

The Limits Of State Jurisdiction In Affording Common Law Protection To Clothing Designs, Leonard S. Elman

Vanderbilt Law Review

The recent case of Dior v. Milton' indicates that the "misappropriation" doctrine of the law of unfair competition will be applied to impose liability upon unlicensed users of original clothing designs. The purpose of this article is to outline briefly the statutory protection presently available for such designs, and to discuss certain problems raised by the Dior v. Milton decision.

The Constitution, in article I, section 8, provides that Congress shall have power to enact legislation "to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their …