Law Commons^™

Collective Management In The European Union, Lucie Guibault, Stef Van Gompel

Articles, Book Chapters, & Popular Press

No abstract provided.

Keeping The Status Quo: Why Continuing To Recognize The Presumption Of Irreparable Harm In False Comparative Advertising Protects The Market, Max Dillan

Fordham Journal of Corporate & Financial Law

Legal action challenging a company’s advertisement for containing false or misleading statements is a more recent development in the American legal system. The market’s utilization of advertising to promote sales has grown steadily to the point where the frequency with which it now permeates everyday life is almost constant. Lawsuits challenging many of these advertisements have increased as well. The swelling influence of advertisements in the marketplace and the complementary rise in false advertising litigation is relevant for both companies and consumers alike. As litigation continues to grow as an outlet for companies to safeguard their brands, consumers will find …

Some Speculation About Mirror Neurons And Copyright, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The internet, a world-wide copy machine, caused some rethinking of copyright law. Cognitive science increasingly suggests that humans are smaller scale, more adaptable, copy machines. Copyright law may again change. V.S. Ramachandran’s "The Tell-Tale Brain" discusses how mirror neurons may enable imitation, detection of others’ intention, and empathy. Ramachandran suggests that mirror neuron circuits could provide the neural substrate for cultural transmission, language, and even consciousness. This essay speculates on the implications for copyright law. It’s not news that people copy. But if cognition and culture depend on the bottom-up imitation by mirror neurons, perhaps some of the central tenets …

The Emperor’S New Digital Clothes: The Illusion Of Copyright Rights In Social Media, Mihajlo Babovic

Cybaris®

No abstract provided.

Fair Use And Appropriation Art, Niels Schaumann

Cybaris®

No abstract provided.

Copyrights And Creativity: The Affects Of Copyrights On Fairy Tales, Dina Arouri

Honors Program Theses

This work attempts to argue for a correlative relationship between copyright law and the evolution of literary works. It uses the laws and common practices of intellectual property to achieve this hypothesis.

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

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. The comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye.

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

Law Student Publications

This comment argues that fair use analysis should be reorganized from a disjointed four-factor morass into a straightforward two-part analysis that incorporates and clarifies the purpose of each of the four factors. Such a structure recognizes the role transformative use plays within the fair use doctrine as a whole. This comment then applies this process to a potential fair use defense for Richard Prince's The Catcher in the Rye. Part I provides background information on the relationship between the author, reader, and text as outlined by Roland Barthes, general copyright law, Richard Prince, and the fabulist Jorge Luis Borges. Part …

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the author’s …

We (Still) Need To Talk About Aereo: New Controversies And Unresolved Questions After The Supreme Court's Decision, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Recent judicial interpretations of U.S. copyright law have prompted businesses to design technologies in ways that enable the making and transmission of copies of works to consumers while falling outside the scope of the owner's exclusive rights. The archetypal example is Aereo Inc.'s system for providing online access to broadcast television, which the Supreme Court has now ruled results in infringing public performances by Aereo.

In previous work we urged the Court to develop a principled reading of the transmit clause focusing on the particular use rather than on the technical architecture of the delivery service (Giblin & Ginsburg, "We …

Work Made For Hire – Analyzing The Multifactor Balancing Test, Ryan G. Vacca

Akron Law Faculty Publications

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on …

Google As Copyright Iconoclast, James Gibson

Law Faculty Publications

Google’s role as a copyright defendant has provided fodder for many an essay in this series, particularly with regard to the Google Books litigation. (Incidentally, that litigation celebrates its tenth anniversary next month – and it’s still going strong.) A more recent Google case, however, is probably just as important, and it provides another interesting lesson in the Internet behemoth’s copyright litigation strategy.

The case is Oracle v. Google. In early 2010, Oracle acquired Sun Microsystems, the developer of Java, the popular cross-platform programming language. Soon thereafter, Oracle sued Google for copyright infringement, alleging that Google’s Android operating system copied …

Fair Use And The Faces Of Transformation, Part Ii, James Gibson

Law Faculty Publications

In my last IP Viewpoints entry, I discussed the origin of “transformation” as a major factor in copyright’s fair use doctrine. In particular, I focused on “expressive” transformation, in which the user changes the actual content of the copyrighted work. Taking old works and turning them into something new is the way that culture usually evolves, so it is no surprise that copyright law would sometimes allow users to engage in such conduct without needing to pay for the privilege.

Yet there is also a second kind of transformation, one that does not involve the alteration of the underlying material. …

Authors, Online, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The fate of professional creators is a major cultural issue. While specific copyright rules are obviously contingent and should be adapted to the new realities of online distribution and easy reuse, professional authorship remains necessary. I also believe that to be a professional author, creators need time, which, in turn, does require some form of payment. We need healthy financial flows to allow professional authors to make a decent, market-based living. This requires a move away from one-size-fits-all copyright and the resulting "tug of norms" that requires a shift of the entire policy package to the benefit of one category …

Understanding Rights Reversion: When, Why, & How To Regain Copyright And Make Your Book More Available, Nicole Cabrera, Jordyn Ostroff, Brianna Schofield

Copyright, Fair Use, Scholarly Communication, etc.

Are you an author who would like to increase your book’s availability? Have you already entered into a publishing agreement for your book? If you answered “yes” to both of these questions, then read on! This guide addresses the needs of authors who wish to make their works available to a wider audience in ways that may be prohibited by the terms of their existing publishing agreements.

For example, this guide will help authors who want to do things like: • Bring their out-of-print books back into print • Publish digital versions of their books • Make their books openly …

Reading Intellectual Property Law Reform Through The Lens Of Constitutional Equality, Jessica Silbey

Faculty Scholarship

In reviewing three books, Robert Spoo's Without Copyright, Bill Herman's The Fight for Digital Rights, and Aram Sinnreich's The Piracy Crusade, for Tulsa Law Review's annual book review volume, this paper explores new themes and structures in Supreme Court cases about intellectual property. Studying the new histories and processes described in the books under review helps reveal constitutional equality frameworks in Supreme Court cases about intellectual property usually understood as cases about congressional deference and property rights. This article explains how many of these Supreme Court cases about IP reflect a range of equality modalities - e.g., …

Copyright's Technological Interdependencies, Clark D. Asay

Faculty Scholarship

Copyright was initially conceptualized as a means to free creative parties from dependency on public and private patrons such as monarchs, churches, and well-to-do private citizens. By achieving independence for creative parties, the theory ran, copyright led to greater production of a more diverse set of creative works.

But this lingering conception of copyright is both inaccurate and harmful. It is inaccurate because, in today’s world, creative parties are increasingly dependent upon “Technological Patronage” from the likes of Google, Amazon, Apple, and others. Thus, rather than being alternatives or adversaries, copyright and Technological Patronage are increasingly interdependent in facilitating both …

Kamil Kubik: The Artist And Copyright Observed, Elizabeth Townsend Gard, Yvette Joy Liebesman

All Faculty Scholarship

For over 60 years — from the time he fled his native Czechoslovakia in 1948 until his death in August 2011 — Kamil Kubik created amazing oil paintings and pastels. Many of his works were also printed as lithographs and serigraphs, for sale at more affordable prices than the four-to-five figures that he received for the originals. He was not dependent on the sale of these prints, which was a good thing — most of the original works were unprotected by copyright, and many of the prints were unauthorized reproductions.

Copyright law is the key law that protects the artistic …

Unavoidable Aesthetic Judgments In Copyright Law: A Community Of Practice Standard, Robert Kirk Walker, Ben Depoorter

Northwestern University Law Review

Aesthetic judgments are “dangerous undertakings” for courts, but they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack thereof), and courts often go to great lengths to try to avoid artistic judgments. In practice, however, implicit aesthetic criteria are deeply embedded throughout copyright case law. The questions “What is art?” and “How should it be interpreted?” are inextricably linked to the questions “What does copyright protect?,” “Who is an author?,” “What is misappropriation?,” and many other issues essential to copyright. Although courts rarely (if ever) explicitly …

Inventing Around Copyright, Dan L. Burk

Northwestern University Law Review

Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo …

Trademark Law As An Agency Problem - Part I, James Gibson

Law Faculty Publications

A few months ago, my IP Issues entry demonstrated that the exclusive rights that trademark law provides are rooted in consumer welfare – in the need to ensure that consumers are able to distinguish one producer’s goods from those of its competitors. In this entry and the next, I will consider the implications of this point for modern trademark law.

If the consumer interest is really what trademark law is all about, then one conundrum that follows is that consumers do not have trademark rights. Producers do. A moment’s reflection explains why: When consumers are deceived by Producer X’s use …

No Comment: Will Cariou V. Prince Alter Copyright Judges’ Taste In Art?, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

Even before Campbell v. Acuff-Rose Music, Inc. made transformativeness the name of the game in fair use law, judges have been in search of artistic speech in their copyright fair use determinations, especially in appropriation art cases. Judges often find themselves ascribing meaning both to the defendant’s work and the plaintiff’s work when comparing the two in order to determine whether defendant’s art is new. So while many commentators attribute appropriation artist Jeff Koons’s victory in Blanch v. Koons after a string of losses to the development in fair use law contributed by Campbell, I instead argue that it has …

The Romantic Author And The Romance Writer: Resisting Gendered Concepts Of Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere–to the kinds of creativity in which men are more likely to participate–to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated …

Recent Developments In Intellectual Property Law — A 2014 Retrospective, David O. Taylor, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological …

Private Letters And The Law: Edith Wharton’S Questions About Ownership And The Right To Publish Private Letters, Deborah Hecht

Touro Law Review

No abstract provided.

The Past And Future Of Copyright Politics, Jessica Silbey

Faculty Scholarship

No abstract provided.

Vol. 6 No. 1, Fall 2014; 'Fixing' The First Sale Doctrine: Adapting Copyright Law To The New Media Distribution Paradigm, Samuel Perkins

Northern Illinois Law Review Supplement

This Article discusses Section 109 of the Copyright Act, the first sale doctrine, in the context of digital media and internet-based storage. Traditionally, the first sale doctrine served as an important limitation on the exclusive rights of copyright owners, allowing copies of lawfully obtained works to be resold without interference from the copyright owner. As a result of this limitation, physical media remains freely alienable after the first sale, providing secondary markets for used copies and more consumer choice. However, due to the nature of digital media and the recent market shift among media distributors, first sale doctrine has become …

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

Determining The Extent Of The Work For Hire Doctrine And Its Effect On Termination Rights, Allison E. Dolzani

Touro Law Review

No abstract provided.

Copyright, Fair Use And Author’S Rights Ii (October/November 2014), Paul Royster

University of Nebraska-Lincoln Libraries: Presentations

Copyright is a battlefield, and an author’s control over his/her own work can easily become collateral damage or go missing in action. Many publishers believe they have an inherent right to own the intellectual property arising from your grant-funded research and to live off the earnings of written works that you had little choice but to give them for free or pay them to publish. In this session you will learn more about U.S. Copyright Law, Author’s Rights, and protecting your Intellectual Property. Faculty members Paul Royster and Sue Gardner will speak on Copyright, Fair Use, and Author Rights. You …