Law Commons^™

Un©Ertainty And Dis©Omfort, Richard Chused

Northwestern Journal of Technology and Intellectual Property

This essay explores creative works that produce powerful reactions of discernment, hostility, or deep uncertainty from mysterious forms of “blankness.” They all use silence or similarly ineffable qualities to challenge the thoughtfulness and tolerance of audience members. They force us to understand that creativity sometimes manifests itself in strange and bizarre ways that test not only our viewing tolerance, but also our traditional notions of creativity and of intellectual property boundary lines. It is like forcing fully sensory-enabled people to think about creativity in ways that may mimic a small fragment of the daily experience of those with limited sight …

Quo Vadis, Fair Use? The Future Of Fair Use After The Warhol Decision, Vicenç Feliú, Josh Lida

Northwestern Journal of Technology and Intellectual Property

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings.

The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial …

The Times They Are A-Changin': Adapting Copyright Law To Generative Ai, Giovanni Lomonaco

Pace Law Review

Artificial intelligence has come a long way since the days of the “heartless” tin man of the Wizard of Oz, and the cool, precise autonomy of Kit from Nightrider. We have moved rapidly from mere questions about what life could be like with autonomous machines, to having books, movies, and albums created using machines for part or even all of the process. The Copyright Act, however, has not come as long of a way since the implementation of the most recent version of the Act in 1976. Recently, the federal district court for the District of Columbia held …

Documentary History Of The Broadcast Treaty In The Sccr (Global Version), Luca Schirru, Lokesh Vyas, Haddija Jawara, Lukas Ruthes Gonçalves, Katie Mcgee, Yara Misto, Sean Michael Fiil Flynn

Joint PIJIP/TLS Research Paper Series

The objective of this study is to systematically map all meetings of the Standing Committee on Copyright and Related Rights (SCCR) and the General Assemblies (GA) of the World Intellectual Property Organization (WIPO) to extract, compile, and organize all relevant statements made Member States regarding the proposed Broadcasting Treaty.

The analysis was based on publicly available data from the WIPO website, particularly the official pages dedicated to each SCCR and GA meeting. Our primary focus was on statements recorded in the official "Report" document of each session. When available, we also examined supplementary documents, such as the "Summary by the …

Objectives And Principles For An Instrument On Limitations And Exceptions: Relevant Excerpts And Proposals, Sean Flynn, Luca Schirru

Joint PIJIP/TLS Research Paper Series

The Committee on Copyright and Related Rights (SCCR) has been mandated by the 2012 General Assembly to work toward “an appropriate international legal instrument or instruments (whether through model law, joint recommendation, treaty, and/or other forms)”. In SCCR 43, the Committee adopted a Work Program (SCCR/43/8) to draft “objectives, principles, and options” for potential instruments. With the goal of facilitating the discussion within the Committee and the design of principles and objectives, our research team systematically gathered and organized relevant excerpts from a variety of sources including existing treaties, laws, SCCR documents, academic contributions, and civil society proposals. This document …

World Wide Whac-A-Mole: The Inadequacies Of The Dmca To Protect Copyright Holders Online And Why Artificial Intelligence Is The Solution, Nathania Davis-Fox

Texas A&M Journal of Property Law

Congress created the Digital Millennium Copyright Act (DMCA) at the dawn of the internet age 25 years ago. It addressed the needs and concerns of Online Service Providers (OSPs) in the nascent cyber landscape, but the DMCA must now be reformed to meet the needs of Web 2.0. The DMCA’s refusal to condition §512(c) safe harbor protection on OSPs’ platform monitoring is no longer practical. This now produces results contrary to the Copyright Act’s purpose of encouraging the creation and dissemination of new works. Copyright owners are fighting a losing battle against infringing OSP users and the DMCA’s notice-and-takedown procedures …

Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter

Joint PIJIP/TLS Research Paper Series

This article identifies copyright impediments existing in the sphere of science, and then tentatively suggests how such impediments may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, and specifically asks whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966. …

Redefining Intellectual Property Protection: Nfl Plays In The Digital Age, Michael Touma

Washington Law Review Online

American copyright law is fluid. Its changes have mirrored evolutions in society, be they technological, cultural, or economic. At its core, copyright law exists to promote the progress of the arts and sciences; yet, the law’s outdated nature leaves many creations on the outside looking in. The last substantial copyright legislation to pass through Congress was the Copyright Act of 1976, which was nearly fifty years ago. Much has changed since, including vast technological improvements, new and emerging interests in American society, and now global economic drivers. One industry that meets these characteristics and is not currently afforded protection is …

The Great War (Taylor's Version): Examining The New Era Of Recording Artists & Master Recording Ownership, Victoria B. Villanueva

Journal of Legislation

In 2019, Taylor Swift took to social media to voice her unease with the recent sale of her entire master recording catalogue to Ithaca Holdings, a sale that allegedly occurred without her explicit permission. Following a series of negotiations, holdouts, and ultimate deadlock, Swift made the critical and costly decision to re-record and re-release each of those six albums under her sole ownership in an effort to reclaim them as her own work—re-recordings publicly denoted by “Taylor’s Version”. This highly-publicized feud brought to the public’s attention a decades-long conflict between the recording artist and the recording company, one that has …

Locked Out: An Empirical Study Of The Impacts Of Technological Protection Measures On Digital Content Access In Canadian Academic Libraries, Anthony D. Rosborough, Katherine Silins

Reports & Public Policy Documents

This report presents findings from a comprehensive empirical qualitative study involving interviews with Canadian academic librarians, copyright officers, and information professionals to examine how TPMs affect digital content access. The research reveals that TPMs are deeply embedded within the technology and licensing frameworks used by libraries, creating opaque barriers to lawful access. Practitioners often lack clarity on whether restrictions stem from TPMs or from contractual or platform design, complicating their ability to support fair dealing uses of works, preservation, and teaching. This ambiguity has increased substantially with the rise of controlled digital lending (CDL) and other access models that have …

A Comparative Study On The Originality Of Ai-Generated Artworks: What Can Copyright Laws Learn From Refik Anadol?, Söğüt Atilla

National Law School of India Review

Originality is a fundamental requirement for works to receive copyright protection. However, as the term lacks a universally accepted definition, interpretations of originality vary across jurisdictions. This article first examines key theories underpinning copyright law to justify the necessity of an originality threshold. It then analyses how the United States, the United Kingdom, India, China, and the European Union define and apply this criterion. In the final section, the article argues that, these jurisdictions, when applying their well-established principles and case law consistently, can accommodate findings of originality in AI-generated artworks. The article critiques the misconception shared by some jurisdictions …

The Second Life Of Information, Thomas D. Haley

UF Law Faculty Publications

Information permeates every aspect of modern life. It is the price we pay for access to online services and the form in which we embody creative works. Law and policymaking tend to focus on first-order uses and transactions; information for access serves as the paradigmatic example. But information enjoys a robust second life—one that constitutes the true value and power that drives firms’ decisionmaking—as assets. Once aggregated and assetized, the power and risk associated with information increases exponentially.

To explore the implications of information’s second life, this Article introduces the concept of “untethered information.” Assetization depends on severing the connections …

Intellectual Property—Copyright Law—Ai Is “Actual Imitation:” An Argument On Why Generative Ai Should Not Be Allowed To Learn From Copyrighted Materials Without Authorization, Tj Stotts

University of Arkansas at Little Rock Law Review

No abstract provided.

A Personal Interview With William Patry: His Thoughts On Music, Ai, And Copyright

IP Theory

No abstract provided.

Generative Ai's Copyright Enigma: A Comparative Study Of Fair Use And Fair Dealing, Taysir Awad

IP Theory

At the dawn of this decade, generative Artificial Intelligence (AI) models were at the apogee of modern science and technology. Their emergence introduced the world to a new paradigm of creativity and innovation, where machines can synthesize art, literature, and design with unprecedented sophistication, blurring the boundaries between human ingenuity and algorithmic computation. These models have the capacity to regenerate Oscar Wilde with the depiction of Ansel Adams, rewrite Harry Potter with William Shakespear’s proverbial tongue, and redesign St. Peter’s Basilica with Gothic arches, Seljuk carved stones, and an Antoni Gaudi roof architecture, relocated in the heart of New York …

The Globalization Of Copyright Exceptions For Ai Training, Matthew Sag, Peter K. Yu

Faculty Scholarship

Generative AI, machine learning and other computational uses of copyrighted works pose profound questions for copyright law. This article conducts of global survey of how different countries have attempted to answer these questions in relation to the unauthorized use of copyrighted works for training. Although the world has yet to achieve international consensus on this issue, an international equilibrium is emerging. Jurisdictions with common law and civil law traditions, and with varying economic conditions, technological capabilities, political systems, and cultural backgrounds, have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text data mining, …

Collective Management Of Copyrights And Human Rights In An Age Of Technological Automation, Laurence R. Helfer, Giulia Priora

Faculty Scholarship

Collective management organizations (CMOs) across the world have remained key to the exercise and enforcement of copyrights and neighbouring rights of individual creators notwithstanding the rapid development of digital technologies and their decentralizing potential. This chapter provides an up-to-date legal analysis on the role and activities carried out by CMOs vis-à-vis the protection of creators’ rights as international human rights. By scrutinizing key treaty provisions and interpretative documents, the analysis reveals how a human rights framework supports numerous functions performed by CMOs. However, significant conflicts may arise from certain practices and policies of CMOs concerning, for example, mandatory membership, promotion …

Copyrighting Style, Christopher Buccafusco

Faculty Scholarship

Does copyright law protect an artist’s style? The federal courts that have considered the question are equally split. They all agree, however, that the answer to the question resides in copyright law’s idea/expression distinction. According to this doctrine, ideas, techniques, and methods cannot be copyrighted, but expressions of ideas can be. The question courts have faced, then, is whether artistic style is an idea or a matter of expression. The answer, perhaps unfortunately, is that style is both.

This is unfortunate because, this Article argues, copyright law’s idea/expression distinction is inadequate to the task of determining the copyrightability of style. …

Copyright's Dominion, Shani Shisha

Faculty Journal Articles and Book Chapters

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the …

Authoring While Dead, Mark A. Lemley, Oliver W. Holmes Jr.

Georgia Law Review

Bob Marley died in 1981. But he wrote a song in 2017 with The Killers. At least, that’s what the song credits say. Why? Because The Killers’ song included the two words “redemption song,” the title of a classic Bob Marley hit. Rather than fight, The Killers agreed to add Marley as a co-author.

There is an increasing trend in the music industry toward resolving disputes over music copyright by granting co-authorship (or “interpolation”) credit to the claimant, no matter how weak the claim (as in Marley’s case), and even if they are dead (as in Marley’s case again). Bob …

What Can Copyright Law Learn From Greek Tragedy?, Mira Moldawer

Marquette Intellectual Property & Innovation Law Review

None.

Characters In Copyright Law: Extraordinary Rules For Ordinary Content, Robert F. Helfing

Marquette Intellectual Property & Innovation Law Review

Characters are a breed apart in copyright law. Only they have a special standard of creativity. Only they must have unique elements to qualify for protection. Only they are exempt from analysis as derivative works when they appear in multiple works, and only they are required to maintain consistent features in order to maintain protection previously earned. These and other idiosyncrasies do not follow naturally from precedent or statutory law, but operate heedless of and even contrary to legal authority.

This article shows that, after fifty years of undifferentiated treatment, the courts suddenly began to apply divergent rules to characters. …

Artificial Intelligence And Music Mash-Ups: Monetizing An Opt-In Closed Universe Database To Preserve Royalties And Credit For Composer And Sound Recording Rights Holders, Michael M. Epstein

Marquette Law Review

This Article charts the development of an opt-in database of music publishing and sound recording catalogues that would allow music industry stakeholders to profit from those who use artificial intelligence to generate new creative content from existing intellectual property. The database would be a portal to content that rights holders would consent to include in a library made available to the public. The database could be advertiser-supported, allowing for no-cost access by the public, or users could pay for a blanket license or per- search fee. Proceeds from the database would be distributed to rights holders based on the content …

Brief Of Amici Curiae In Support Of Reversal On Question One, James Gibson

Law Faculty Publications

The Fourth Circuit’s decision to impose contributory liability Cox Communications, Inc. rests on a fundamental misapprehension of Cox’s role as a “conduit” Internet Service Provider. Conduits merely transmit data between endpoints; unlike content-hosting platforms like YouTube or search engines like Google, conduits do not store, curate, or control user content. They merely transmit data on behalf of third parties, and they have no ability to monitor the data they transmit. By treating Cox’s passive provision of Internet access and data transmission as a knowing, material contribution to infringement, the Fourth Circuit collapsed the crucial legal distinction between conduits and hosts, …

Patent Law: An Open-Access Casebook, Sarah Fackrell, Sarah R. Wasserman Rajec, Andres Sawicki

Faculty Publications

No abstract provided.

Copyright And Artificial Intelligence, Part 2: Copyrightability

Copyright, Fair Use, Scholarly Communication, etc.

This report by the United States Copyright Office addresses the legal and policy issues related to artificial intelligence (AI) and copyright as outlined in the Office’s August 2023 Notice of Inquiry (NOI).

The report will be published in several parts each one addressing a different topic. This part addresses the copyrightability of works created using generative AI. The first part, published in 2024, addresses the topic of digital replicas—the use of digital technology to realistically replicate an individual’s voice or appearance. A subsequent part will turn to the training of AI models on copyrighted works, licensing considerations, and allocation of …

Goncharov (1973), Internet Folklore, And Corporate Copyright, Stacey M. Lantagne Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

Goncharov (1973) is a meme, which is a term broadly used to refer to a species of viral internet creativity. Memes can be many different things, but Goncharov is an especially rich, complex, collaborative, and mutating one. It revolves around a movie that does not exist. Goncharov is a fictional Martin Scorsese film that the internet collectively pretends was produced in 1973. Over the course of a few feverish weeks in the fall of 2022, social media users, with no coordination and without knowledge of each other or the overall project, created a cast, storyline, soundtrack, reviews, fanfiction, and a …

Ai Artists On The Stand: Bias Against Artificial Intelligence-Generated Works In Copyright Law, W. Michael Schuster, Joseph J. Avery

Scholarly Works

Generative artificial intelligence (AI) is revolutionizing the creation of art, literature, and music, challenging the boundaries of intellectual property law. To date, scholars have primarily focused on AI's authorship/entity status and the regulation of its use, overshadowing a critical issue: how AI's involvement in creative processes influences legal judgments in copyright disputes. Our empirical research reveals systemic bias against AI-generated works in such legal matters. In our studies, participants read about a company that had hired either a human designer (condition one) or a generative AI art system (condition two) to produce works of art, and those works of art …

Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Mateusz Blaszczyk

Scholarly Works

In an important new Article, titled A Matter of Facts: The Evolution of the Copyright Fact-Exclusion and Its Implications for Disinformation and Democracy, Professor Jessica Silbey argues provocatively that we “‘only” know that facts are excluded from copyright protection because Feist Publications v. Rural Telephone Service “says so.” She argues that both the nature and importance of facts has been underdefined and is in flux, nonetheless tracing it to the foundational cases of United States (U.S.) copyright law, and argues for a stronger exclusion of facts, which are publici juris, and belong in the public domain. This central …

Trademark Proprietors' "Moral Right" As An Exception To The Doctrine Of Exhaustion Of Rights In Trademarks, Sahana Simha, Ram Mohan M P

American University Business Law Review

Trademark law is primarily viewed as a consumer protection law. Proprietary and consumer interests are not always balanced. This is especially the case with the doctrine of exhaustion of rights in trademarks, where the trademark owner loses control over the further distribution of their trademarked product once sold. Existing statutory exceptions to this doctrine allow the proprietor to take action against resellers only when the product has been impaired or changed. The exceptions do not account for harm or damage to the reputation and goodwill associated with a trademark as a ground to override exhaustion. This article analyzes legislative and …