Law Commons^™

The Phillie Phanatic Hits Free Agency: An Analysis Of Phillies V. Harrison And The Application Of Copyright Law To Mascots As Characters, Olivia C. Giles

Duquesne Law Review

Wacky, chaotic, lovable. These are just a few words used to describe mascots of all types, especially the Phillie Phanatic. The Phanatic is arguably one of the most well-known and recognizable mascots in sports. Its taunting of opposing teams and goofy yet aggressive personality have shifted the mascot landscape; as the way mascots are perceived continues to change, so does the number of teams hoping to use them.¹ The Phanatic's antics at games have led to trouble more than a few times, gaining it the title of the mostsued mascot in sports.² Nonetheless, the Phanatic is a cherished …

Artificial Intelligence Models May Not Have Owners, Devin Owens

Akron Law Student Publications

While new artificial intelligence models see unprecedented investment, serious questions exist about the ownership of the models themselves under existing intellectual property structures. AI models, as compilations of information created largely autonomously by algorithms from sets of training data, may not be suited for the subject matter and inventorship/authorship requirements of traditional patent and copyright protection. The literature assumes that trade secrecy will protect AI models, which are largely kept secret on remote servers away from direct inspection by users, but model extraction attack methods known since 2016 are effective in copying any AI model that can be queried. This …

Infringement Episodes, Shani Shisha

Faculty Journal Articles and Book Chapters

For decades, copyright scholars have waged a spirited campaign against statutory damages. Our remedial system, critics say, is an incoherent mess. The core problem is that copyright holders can recover a separate award of statutory damages for every infringed work. As a result, damages can rapidly add up in any case involving multiple works. Because the number of statutory awards is tethered to the number of works, even trivial claims can lead to crippling damages. Commentators, policymakers, and judges have criticized this system as arbitrary and overbroad. And yet it endures. This Article argues that copyright’s per-work scheme has obscured, …

Fair Use V. Free Use: A Comparative Study Of American And Russian Copyright Exemptions, Eduard Bershitskiy

LL.M. Essays & Theses

Many U.S. lawyers are under the well-deserved, but still not entirely accurate, impression that copyright infringement in Russia is a huge free-for-all. This comparative paper, which juxtaposes Russian and American copyright exemptions, seeks to partially refute that skeptic view by showing that, in fact, Russian copyright law has developed a relatively coherent system of exceptions and limitations to exclusive rights. This paper begins with a brief overview of Russian copyright law and general remarks on its exemptions. It then focuses on statutory and, where appropriate, case-law comparison of particular copyright exemptions in the Part 4 of the Russian Civil Code …

Desettling Fixation, Emily T. Behzadi Cárdenas

Faculty Scholarship

Scholars have long contemplated how the effects of colonialism have permeated even race “neutral” laws. This Article scrutinizes the ways Eurocentric copyright systems have failed to protect, and have even encouraged, the unauthorized uses of indigenous heritage in derivative subject matter, exposing how settler colonialism in copyright law has entrenched an unequal hierarchy among communities seeking copyright protection. Due to its ephemeral nature, intangible cultural heritage constantly faces the threat of exploitation by dominant cultures. The intangible heritage of indigenous groups has been particularly vulnerable to illicit and uncompensated commodification. Intangible heritage, such as oral histories and traditional dances, is …

The Future Of Art And Copyright In The World Of Ai, Danna Subia Espinoza

Catholic University Journal of Law and Technology

This paper focuses on the interpretive framework embodied in copyright law and its application to art-producing technologies, how this framework has been applied to new technologies in the past, and the issues surrounding the adaption of these old frameworks to the modern concern of AI-created art. The paper also considers how the application of copyright law to modern AI issues reflects the law’s capability, or inability, to evolve and address novel situations, specifically in relation to AI-based technology. Further, it examines what, if any, steps should be taken to promote courts maintaining a firm grip on copyright protections. The issues …

Ai, Artists, And Anti-Moral Rights, Derek E. Bambauer, Robert W. Woods

UF Law Faculty Publications

Generative artificial intelligence (AI) tools are increasingly used to imitate the distinctive characteristics of famous artists, such as their voice, likeness, and style. In response, legislators have introduced bills in Congress that would confer moral rights protections, such as control over attribution and integrity, upon artists. This Essay argues such measures are almost certain to fail because of deep-seated, pervasive hostility to moral rights measures in U.S. intellectual property law. It analyses both legislative measures and judicial decisions that roll back moral rights, and explores how copyright’s authorship doctrines manifest a latent hostility to these entitlements. The Essay concludes with …

On Copyright Utilitarianism, Patrick R. Goold, David A. Simon

Indiana Law Journal

Utilitarians typically argue that the state should grant copyright to authors only when doing so promotes utility. In recent years, however, this argument has faced three criticisms. As a normative matter, critics argue that a utilitarian copyright system is neither just nor attractive. As an epistemological matter, critics argue that society cannot ever know whether copyright promotes utility. And as an interpretive matter, critics argue that utilitarianism fails to appreciate what copyright is really all about: progress of the sciences and useful arts. And so, an increasing number of scholars conclude that copyright should be awarded, not when doing so …

A Framework For Applying Copyright Law To The Training Of Textual Generative Artificial Intelligence, Art Neill, James Thomas, Erika Lee

Faculty Scholarship

The rise in the popularity of consumer-facing generative artificial intelligence (GenAI) has created considerable confusion and consternation among some copyright owners. The ability to automate the generation of original works based on user input is considered by some copyright holders to have been made possible by large-scale direct infringement by OpenAI, Microsoft, and other major GenAI developers. This article explores the application of copyright law to the training of OpenAI’s ChatGPT, specifically focusing on the legal issues surrounding the unauthorized use of copyrighted textual works in the GenAI training process.

The large language models (LLMs) that drive ChatGPT and similar …

Deconstructing The Blueprint For Infringement: Remedying Flawed Interpretations Of The § 120(A) Exception To Architecture Copyrights, Margalit Zimand

Kernochan Center for Law, Media, and the Arts

Drafting the Architectural Works Copyright Protection Act of 1990 (“AWCPA”) consisted of a bizarre hodgepodge of considerations. Ostensibly, the goal of the Act was to bring the United States unquestionably into compliance with the Berne Convention for the Protection of Literary and Artistic Works, which the United States had just recently joined, with as minimal an impact on U.S. law as possible. In reality, this goal — itself not without built-in tensions — was but one of several competing forces at play in the drafting process. The other forces generally fell into three camps. There were the proponents of preserving …

Fairness And Fair Use In Generative Ai, Matthew Sag

Faculty Articles

Although we are still a long way from the science fiction version of “artificial general intelligence” that thinks, feels, and refuses to “open the pod bay doors,” recent advances in machine learning and artificial intelligence (AI) have captured the public’s imagination and lawmakers’ interest. We now have large language models (LLMs) that can pass the bar exam, carry on (what passes for) a conversation about almost any topic, create new music, and create new visual art. These artifacts are often indistinguishable from their human-authored counterparts and yet can be produced at a speed and scale surpassing human ability.

“Generative AI” …

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Law Faculty Scholarly Articles

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Ai-Ip? Copyright In An Age Of Internet Propaganda With Artificial Intelligence, Sonya Saepoff

Cybaris®

No abstract provided.

Virtually Identical: A Case For Maintaining Architectural Copyright Protections In The Metaverse, Stephen Mcpaul

Cybaris®

No abstract provided.

From Andy Warhol To Barbie: Copyright’S Fair Use Doctrine After Andy Warhol Foundation V. Goldsmith, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

Commercializing Copyright, Shani Shisha

Faculty Journal Articles and Book Chapters

Much of modern copyright law is cloaked in the language of neutrality. No matter how successful or popular, all copyrighted works are shielded by the same rights. In theory, our system neither celebrates nor condemns commercial success. All works are created equal under the law. This standard account is radically askew. In reality, questions of commercial success pervade virtually every aspect of copyright doctrine. Courts consider whether the work is commercially successful in cases spanning a range of doctrinal contexts, including the scope of protectable subject matter, the standards of liability, the limits of fair use, and the range of …

Big Brands Stay In Your Lane, Small Designers Made It First : An Examination Of The Harmful Effects The Lack Of Copyright Protection Has On Small Apparel Designers, Merjan Kareem

Florida A & M University Law Review

This paper aims to emphasize the importance of expanding current United States (“U.S.”) copyright law (“law”) to include protection for apparel designs, as the lack of such protection has a multitude of adverse consequences for small individual apparel designers (“small designer”).

Talking Scents: Copyrightability Of Fragrance & Intellectual Property Protection In The Perfume Industry, Margaret M. Donnelly

Law Student Publications

Designer fashion brands are well-known for their aggressive brand protection techniques and unwavering commitment to protecting the exclusivity of their products. After all, it is this exclusivity that drives demand for luxury products in the first place. Additionally, a new trend of duplicate or “dupe” products that are more accessible, noncounterfeited replicas of high-end goods presents a new problem for these luxury brands. Despite high-end brands’ best efforts, the luxury goods industry is still plagued by counterfeiting and piracy issues, as well as the emerging threat of replicated dupe products that drive luxury sales down. From notorious counterfeit marketplaces like …

Legislative Report: Protecting Lawful Streaming Act Of 2020, Melissa Rezzag

Cybaris®

No abstract provided.

Applying Current Copyright Law To Artificial Intelligence Image Generators In The Context Of Anderson V. Stability Ai, Ltd., Matthew Lindberg

Cybaris®

No abstract provided.

Pocket Castles And Custom Skin: Championing Transparency In The Monetization Of User-Generated Content In Video Games, Jakob Stokes

Cybaris®

No abstract provided.

The Generative Ai Pirate? The Intersection Of Copyrights And Generative Ai In Literary Works, Brianne M. Culliton

Cybaris®

No abstract provided.

Navigating Copyright Law In A Digital World With An Analog Rulebook: Guidance For Visual Artists, Stephanie Moser

University of San Francisco Law Review

No abstract provided.

Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley

Scholarly Works

There is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both …

Committed To Copyright's Constitutional Role, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Who is Pam Samuelson? She is many things to many people: scholar, teacher, mentor, leader, advocate, and friend, to name a few. One could easily add “force of nature” to the list. This Article suggests adding the term “loyalist” to argue that an important through-line in Pam’s work has been an unwavering commitment to understanding and promoting copyright law’s ability to serve its purpose in our constitutional order.

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Journal of Law, Technology, & the Internet

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Individualized Ideological Enclosures: The Generative Ai Crisis And How Consumers Can Reclaim Their Feeds, Sydney Rose

Catholic University Journal of Law and Technology

No abstract provided.

Editing Classic Books: A Threat To The Public Domain?, Cathay Y. N. Smith

Faculty Law Review Articles

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works …

Copyright And The Training Of Human Authors And Generative Machines, Robert Brauneis

GW Law Faculty Publications & Other Works

There are many limitations on copyright of which human authors can and do take advantage as they are learning. However, there is no blanket fair use immunity for use of copyrighted works to educate human authors, even though those authors typically do not go on to create substantially similar works. Human authors typically end up paying, directly or indirectly, for most of the copyrighted works from which they learn. Should it be different when human beings use copyrighted works to train generative AI models? This article concludes that it should not, in spite of two prominent arguments to the contrary. …

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …