Law Commons^™

Copyright As Charity, Brian L. Frye

Law Faculty Scholarly Articles

Copyright and charity law are generally considered distinct and unrelated bodies of law. But they are actually quite similar and complement each other. Both copyright and charity law are intended to increase social welfare by solving market and government failures in public goods caused by free riding. Copyright solves market and government failures in works of authorship by providing an indirect subsidy to marginal authors, and charity law solves market and government failures in charitable goods by providing an indirect subsidy to marginal donors. Copyright and charity law complement each other by solving market and government failures in works of …

Second Level Agreements, Yafit Lev-Aretz

Akron Law Review

This Article analyzes in-depth a significant practice that has not been recognized in legal scholarship. Their unique structure and the way in which Second Level Agreements have developed within the relatively short time of their existence have important consequences for the various players in the copyright market...The Article also offers a normative assessment of the benefits and shortcomings of the Second Level Agreements practice...The Article then carefully looks at the future of Second Level Agreements while reviewing four potential catalysts—the shift towards premium content, the Viacom v. Google ruling, the move towards disintermediation, and the rise of noncommercial licensing system. …

Sirius Xm Radio, Inc., Defendant: The Case For A Unified Federal Copyright System For Sound Recordings, Brian G. Shaffer

Pace Law Review

This article observes the surviving gap between state and federal protection of music recordings through the lens of the current litigation against Sirius XM. Part II sets out a history of copyright protection in the music industry. Part III outlines the relevant provisions of the federal Copyright Act and the Digital Millennium Copyright Act and the role played in the federal system by the Copyright Royalty Board. Part IV examines the pertinent statutory property protection of music recordings in the state of California. Part V then discusses the merits of the current lawsuits against Sirius XM. After considering the potential …

Gotham Skylines: The Intersection Of Scènes À Faire And Fictional Facts In Comic Books, Graphic Novels, And Their Derivative Works, Gavin M. Strube

Pace Intellectual Property, Sports & Entertainment Law Forum

In just a decade and a half since the modern superhero film exploded onto the scene, the comic books and graphic novels that have long been the very definition of a fringe or niche interest, have morphed into a multi-billion dollar film, television and video game empire. The two main players in this industry, Marvel and DC, are owned by juggernauts in the entertainment industry. More importantly, some of these characters have been around for over three-quarters of a century. Readers keyed into intellectual property law, particularly copyright, should begin to see the issue. The copyright protection on these characters …

Transforming “Transformative Use”: The Growing Misinterpretation Of The Fair Use Doctrine, Caile Morris

Pace Intellectual Property, Sports & Entertainment Law Forum

Starting in late 2012, and continuing into late 2013, the United States District Court for the Southern District of New York wreaked havoc on the traditional interpretation of the copyright infringement defense known as “fair use.” Two cases stemming from the advent of the Google Books Project are Author’s Guild, Inc. v. HathiTrust and Author’s Guild, Inc. v. Google, Inc. These cases adopted a controversial interpretation of the fair use defense, codified in 17 U.S.C. § 107, when each case determined that the mass digitization of thousands of books constituted fair use merely because the digitization was what is known …

Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 5, Issue 1, Spring 2015

Pace Intellectual Property, Sports & Entertainment Law Forum

The staff of PIPSELF has worked diligently this year in selecting and preparing original and appealing articles concerning emerging issues in the fields of intellectual property, sports, and entertainment law for this issue. We welcome our readers to send comments and feedback: e-mail us at [email protected], visit our Twitter @PIPSELF, or ‘like’ us on Facebook at “Pace Intellectual Property, Sports & Entertainment Law Forum.”

The Enigma Of Photography, Depiction, And Copyright Originality, Terry S. Kogan

Fordham Intellectual Property, Media and Entertainment Law Journal

Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual …

“I Have A [Fair Use] Dream”: Historic Copyrighted Works And The Recognition Of Meaningful Rights For The Public, Arlen W. Langvardt

Fordham Intellectual Property, Media and Entertainment Law Journal

Dr. Martin Luther King wrote and delivered his famous “I Have a Dream” speech more than fifty years ago. When he obtained copyright protection on the speech in 1963, Dr. King (and later his estate) would have expected the copyright to last a maximum of fifty-six years. That fifty-six-year copyright has become a ninety-five-year copyright, thanks to lengthy duration extensions enacted by Congress in the mid-1970s and late 1990s. As a result, the copyright on the “I Have a Dream” speech will not expire until the end of 2058. Because the Estate of Martin Luther King, Jr., Inc. and its …

Toward A Fair Use Standard Turns 25: How Salinger And Scientology Affected Transformative Use Today, Benjamin Moskowitz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Enigma Of Photography, Depiction, And Copyright Originality, Terry S. Kogan

Utah Law Faculty Scholarship

Photography is an enigma. The features that distinguish it most from other art forms — the camera’s automatism and the photograph’s verisimilitude — have throughout its history also provided the basis for critics to claim that a photographer is not an artist nor the photograph a work of art. Because every photograph is the product of an automatic, mechanical device, critics argue that a photographer is a mere technician relegated to clicking a shutter button. Moreover, because every photograph displays an exact likeness of whatever happened to be sitting before the camera, critics consider that image to be a factual …

Copyright And Social Media: A Tale Of Legislative Abdication, Diane Leenheer Zimmerman

Pace Law Review

The focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

Awareness And Perception Of Copyright Among Teaching Faculty At Canadian Universities, Lisa Di Valentino

FIMS Presentations

In this talk I discuss the results of a survey of Canadian university faculty members undertaken from October to December 2014. The survey sought to determine teaching faculty awareness of copyright law and institutional policy and training, and how they would respond in various scenarios.

Analysis of the results suggests that while faculty members are aware of the existence of their institution's copyright policy, much fewer know whether their institution offers training. Of those who do know about training, only one-third have attended. However, faculty who have attended copyright training find that their knowledge is enhanced by the experience.

It …

Rethinking Intangible Cultural Heritage And Expressions Of Folklore: A Lesson From The Fcc’S Localism Standards, Jon M. Garon

Faculty Scholarship

This article reviews the underlying societal imperatives reflected in a policy of intangible cultural heritage and the intellectual property-like regimes being developed to protect these interests. It contrasts UNESCO efforts with more narrowly tailored efforts of WIPO and juxtaposes those approaches with the localism model developed under the FCC. While aspects of the WIPO protection efforts focusing on trademark-like and trade secret-like protections benefit the people and cultures these policies hope to serve, additional copyright-like protections will likely do more harm than good. Instead, global public policy will be far better served through emphasis on the FCC's localism attributes of …

Localism As A Production Imperative: An Alternative Framework To Promoting Intangible Cultural Heritage And Expressions Of Folklore, Jon M. Garon

Faculty Scholarship

In the United States, the policy of localism – the legislative goal of fostering local community expression and competence to deliver local content – finds its home in the Telecommunications Act rather than either the Copyright Act or Trademark Act. Other nations have introduced values of localism into trade policy, content distribution rules, and international efforts to protect intangible cultural heritage and expressions of folklore.

Jurisdictions in every continent are struggling to address the pressures of globalism through efforts to protect indigenous peoples’ and minority communities’ languages and culture. These efforts take many forms. Nations have introduced efforts to protect …

Vol. 6 No. 2, Spring 2015; A Circuit Split Involving Ten Federal Circuits: Why Copyright Infringement Actions Should Be Allowed To Proceed After An Application For A Copyright Is Filed, Morgan Johnson

Northern Illinois Law Review Supplement

In 2010, the Supreme Court’s decision of Reed Elsevier, Inc. v. Muchnick addressed the subject matter jurisdiction of a trademark infringement claim. Not only did this avoid the larger question of when a trademark is “registered” under § 411(a), but it lead to further division among the circuit courts. Section 411(a) sets forth the requirements for a trademark infringement suit to be filed; most importantly that it must be “registered.” The registration approach has determined that a trademark is only registered when a party receives an affirmative or negative response, directly from the Copyright Office. The application approach, however, finds …

Richard Prince, Author Of The Catcher In The Rye: Transforming Fair Use Analysis, Brockenbrough A. Lamb

University of Richmond Law Review

No abstract provided.

Notice And Remedies In Copyright Licensing, B. J. Ard

Missouri Law Review

Copyright owners claim the power to designate practically any term of a copyright license as a “condition” enforceable in copyright. In doing so, these licensors purport to translate breach of the most trivial or idiosyncratic term into the basis for a copyright infringement suit. This Article argues that these licenses are most problematic when licensors provide inadequate notice of unexpected terms. License conditions are typically buried in boilerplate that no reasonable consumer reads, and licensors have few incentives to make them more salient. These circumstances not only threaten unwitting users with copyright liability, but also impede copyright’s own goals by …

Copyright As Contract, Jeffrey L. Harrison

UF Law Faculty Publications

Copyright is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration received by authors is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited basis for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all, it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season of exclusivity, if …

Andy Warhol’S Pantry, Brian L. Frye

Law Faculty Scholarly Articles

This Article examines Andy Warhol’s use of food and food products as a metaphor for commerce and consumption. It observes that Warhol’s use of images and marks was often inconsistent with copyright and trademark doctrine, and suggests that the fair use doctrine should in-corporate a “Warhol test.”

"Modern-Day Pirates: Examining The Legal Difficulties Of Copyright Enforcement", James L. Martherus

Brigham Young University Prelaw Review

No abstract provided.

International Copyright: Domestic Barriers To United States Participation In The Rome Convention On Neighboring Rights, Eric T. Johnson

Georgia Journal of International & Comparative Law

No abstract provided.

Licensing Of Intellectual Property Rights, Mark Joelson

Georgia Journal of International & Comparative Law

No abstract provided.

Toward A "Digital Transfer Doctrine"? The First Sale Doctrine In The Digital Era, Sarah Reis

Northwestern University Law Review

The first sale doctrine in copyright law allows a person who owns a copy of a copyrighted work to sell, lend, or give away the copy to someone else. An owner of a copy of a copyrighted work can take advantage of the first sale doctrine, but a licensee cannot. In today’s digital environment, people are increasingly purchasing digital music files and e-books instead of CDs and physical books. Customers often mistakenly believe they become owners of the digital content they purchase when in actuality they merely become licensees most of the time. Licensing agreements impose use restrictions on digital …

With Great Power Comes Great Responsibility: Gary Friedrich's Battle With Marvel For Artist Rights, Alexander L. Simon

Loyola of Los Angeles Entertainment Law Review

Recently, in Gary Friedrich Enterprises v. Marvel Characters, Inc., Gary Friedrich (“Friedrich”) sued Marvel Characters, Inc. (“Marvel”) for infringement on his copyright of the “Ghost Rider” comic book character. The District Court granted summary judgment in favor of Marvel stating that Friedrich had assigned any rights he had to Ghost Rider to Marvel in a work-for-hire agreement six years after the initial publication. Friedrich appealed this action in the Second Circuit Court of Appeals. However, the Second Circuit remanded the case to the District Court for issues of fact, including the ambiguous terms of the work for-hire agreement, renewal rights …

The Zombie First Amendment, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary first amendment shelters power’s ability to make and propagate its own truth. This essay relates developments in recent first amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech — cases that lie at the first amendment’s traditional core — tell only a …

International Satellite Piracy: The Unauthorized Interception And Retransmission Of United States Program-Carrying Satellite Signals In The Caribbean, And Legal Protection For United States Program Owners, Judith S. Weinstein

Georgia Journal of International & Comparative Law

No abstract provided.

Code Of Best Practices In Fair Use For The Visual Arts, College Art Association, Patricia Aufderheide, Peter Jaszi

Copyright, Fair Use, Scholarly Communication, etc.

The mission of the College Art Association (CAA) is to promote the visual arts and their understanding through advocacy, intellectual engagement, and a commitment to the diversity of practices and practitioners. CAA contributes to the visual arts profession as a whole through scholarly publications, advocacy, exchange of research and new work, and the development of standards and guidelines that reflect the best practices of the field. The Code of Best Practices in Fair Use for the Visual Arts is based on a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative …

A Fresh Look At Tests For Nonliteral Copyright Infringement, Pamela Samuelson

Northwestern University Law Review

Determining whether a copyright has been infringed is often straightforward in cases involving verbatim copying or slavish imitation. But when there are no literal similarities between the works at issue, ruling on infringement claims becomes more difficult. The Second and Ninth Circuits have developed five similar yet distinct tests for judging nonliteral copyright infringement. This Essay argues that each of these tests is flawed and that courts have generally failed to provide clear guidance about which test to apply in which kinds of cases.

This Essay offers seven specific strategies to improve the analysis of nonliteral infringements. Courts should do …

Copyright, Consumerism, And The Cloud: Proposing Standards-Essential Technology To Support First Sale In Digital Copyright, Marco Puccia

Seattle University Law Review

America’s entertainment industry, and the creative talent that drives it, is a national treasure. Equally valuable, however, is America’s drive and commitment toward technological innovation. These two sectors have been in tension since at least 1908, when the U.S. Supreme Court was asked to determine whether the makers of piano rolls for automatically playing pianos had to pay royalties to the composers. Since that time, the entertainment industry has continued to use copyright law to resist advances in technological innovation that it views as a threat to its existing business models. This Note seeks to provide the necessary context and …