Law Commons^™

All's Fair In Copyright And Costumes: Fair Use Defense To Copyright Infringement In Cosplay, Molly Rose Madonia

Marquette Intellectual Property Law Review

None

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Belmont Law Review

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use transformativeness inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works. Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …

Copyright For Publishing, Paul Royster

University of Nebraska-Lincoln Libraries: Presentations

What does copyright cover? What is public domain? What is and is not copyrightable and in copyright? How to get copyright?

Copyright’S Not So Little Secret: The Orphan Works Problem And Proposed Orphan Works Legislation, Aaron C. Young

Cybaris®

No abstract provided.

Where Copyright Meets Privacy In The Big Data Era: Access To And Control Over User Data In Agriculture And The Role Of Copyright, Tesh W. Dagne

Vanderbilt Journal of Entertainment & Technology Law

The application of big data in different sectors of the economy and its transformative value has recently attracted considerable attention. However, this transformation, driven by the application of advanced technologies that utilize big data—such as the Internet of Things (IoT), artificial intelligence (AI), and software systems—raises concerns about access to and control over the user data that results from the uptake in using digital technologies. This Article examines the role different legal regimes have in framing access to and control over various forms of user data from the perspective of technology users in the agriculture sector. This Article then goes …

Keynote Address: Censorship In The Guise Of Authorship: Harmonizing Copyright And The First Amendment, M. Margaret Mckeown

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Multiple Intellectual Property Damage Complications As In Apple V Samsung? Try Using Excel, W. Lesser

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Copyrights And Trademarks In Cyberspace: A Legal And Economic Analysis, Georgios I. Zekos

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Defining The Press Clause: The End Of Hot News And The Attempt To Save Traditional Media, Adam Tragone

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Inadvisability Of Nonuniformity In The Licensing Of Cover Songs, Yolanda M. King

College of Law Faculty Publications

In February 2015, the U.S. Copyright Office released a report entitled Copyright and the Music Marketplace, which summarizes its study of the music industry and recommends significant revisions to copyright law in response to the rapidly changing demands of the industry. Among its recommendations, the Copyright Office proposes an amendment to section 115(a)(2) of the Copyright Act. Currently, section 115(a)(2), referred to as the compulsory licensing provision of copyright law, permits someone to record a new version of a previously recorded and publicly distributed song, regardless of the format of the newly recorded version. The revised section 115(a)(2) would require …

Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon

Faculty Scholarship

No abstract provided.

A Theory Of Copyright Authorship, Christopher Buccafusco

Articles

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

You(Tube), Me, And Content Id: Paving The Way For Compulsory Synchronization Licensing On User-Generated Content Platforms, Nicholas Thomas Delisa

Brooklyn Law Review

The changing landscape of digital media technology makes it increasingly difficult for owners of copyrighted music to monitor how their works are being exploited across the Internet. This is especially true of user-generated content (UGC) platforms—websites and applications such as Facebook, YouTube, and Snapchat, where content is created or uploaded predominantly by users. These services pose a special problem to copyright owners because, instead of content being uploaded from a single source that is easily sued and has deep pockets, content is uploaded by users. Users are a troublesome group because they are innumerable, sometimes anonymous, and mostly click on …

Parody And The Fair Use Defense: The Best Way To Practice Safe Sex With All Your Favorite Characters, Jessica N. Schneider

Brooklyn Law Review

The copyright fair use test balances the copyright holder’s right to exclude others from using its work against the secondary user’s First Amendment right, yet this test is often too unpredictable and favors misappropriation, even the most commercial kind. The test is weakest when used to determine the legality of sexual parodies. The sexual nature of the parody should receive statutory consideration in the balancing test because vulgar and lewd speech is often deemed “low value” speech, and therefore the secondary user’s First Amendment right is weaker compared to the copyright owner’s right to exclude. Courts already consider the sexual …

The Effect Of The 1886 Berne Convention On The U.S. Copyright System's Treatment Of Moral Rights And Copyright Term, And Where That Leaves Us Today, Samuel Jacobs

Michigan Telecommunications & Technology Law Review

The 1886 Berne Convention was the most influential copyright related treaty for over a century, and provided important minimum substantive protections for authors. Key provisions included the establishment of the principle of National Treatment, the abolishment of formalities in order to receive copyright protection, a required copyright term of life of the author plus fifty years, and most offensive to the U.S. copyright system, the mandate that signatories provide authors non-economic moral rights. Despite the international importance and widespread acceptance of the Berne Convention, the U.S. did not join the Convention for over one hundred years, making it one of …

Branding Taxation, Jeffrey A. Maine, Xuan-Thao Nguyen

Faculty Publications

Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

Undetected Conflict-Of-Laws Problems In Cross-Border Online Copyright Infringement Cases, Marketa Trimble

Scholarly Works

This article provides and analyzes data on copyright infringement cases filed in U.S. federal district courts in 2013; it focuses on infringement cases involving activity on the internet and discusses actual and potential conflict-of-laws issues that the cases raised or could have raised. The article complements the report entitled "Private International Law Issues in Online Intellectual Property Infringement Disputes with Cross-Border Elements: An Analysis of National Approaches" (the "Report"), which was published by the World Intellectual Property Organization in September 2015. In the Report its author, Professor Andrew F. Christie, discusses his empirical findings about the intersection of intellectual property …

Top Tens In 2015: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court significantly affected the dynamics of patent litigation, holding that patent claim interpretation was not always reviewed de novo and that good faith belief that a patent was invalid was not a defense to infringement. The Federal Circuit potentially changed the approach to patent claim interpretation, holding that claims could be interpreted in light of the written description of the invention, even where the claim was not ambiguous. The Federal Circuit also addressed inducement of patent infringement, holding that it was not inducement to suggest consulting a physician who would likely prescribe an infringing treatment. The Federal Circuit …

Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses A Matter Of First Impression, Christopher M. Holman, Claes Gustafsson, Andrew W. Torrance

Faculty Works

In spite of the compelling logic that would support extending copyright to engineered DNA sequences, copyright protection for genetic code has not been legally recognized in the US, or as far as we know anywhere. The Copyright Act is silent on the point, the courts do not appear to have ever addressed the question, and the Copyright Office has taken the position that an engineered genetic sequence is not copyrightable subject matter. In an attempt to advance the conversation, we submitted an engineered DNA sequence to the Copyright Office for registration, and then appealed the Office’s decision refusing to register …

Branding Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

Plagiarism Is Not A Crime, Brian L. Frye

Law Faculty Scholarly Articles

Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.

Rectifying Fair Use After Cariou V. Prince: Reviving The Forgotten Statutory Text And Requiring That Unauthorized Copying Be Justified, Rather Than Merely “Transformative”, Daniel J. Brooks

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Individual Licensing Models And Consumer Protection, Lucie Guibault

Articles, Book Chapters, & Popular Press

Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes

Faculty Articles

This Article presents a novel view of the complex moral psychology of infringement. It does so both to complement extant critiques of copyright’s incentivist story and to provide a realistic account of owners’ motivations for infringement on which a more effective copyright regime may be built. We elaborate these claims as follows. Part I highlights the contrast between the robust critiques of copyright’s theory of creation and the paucity of attention to its theory of litigation, and illustrates the social costs produced by increasingly common infringement suits animated by nonfinancial concerns. Part II develops a psychology of infringement, rooted in …

Ip Litigation In U.S. District Courts: 1994-2014, Matthew Sag

Faculty Articles

This Article undertakes a broad-based empirical review of intellectual property ("IP") litigation in U.S. federal district courts from 1994 to 2014. Unlike the prior literature, this study analyzes federal copyright, patent, and trademark litigation trends as a unified whole. It undertakes a systematic analysis of the records of more than 190,000 cases filed in federal courts and examines the subject matter, geographical, and temporal variation within federal IP litigation over the last two decades.

This Article analyzes changes in the distribution of IP litigation over time and their regional distribution. The key findings of this Article stem from an attempt …

Copyright In Higher Education: A Review Of Modern Scholarship, Jacob H. Rooksby

Law Faculty Publications

Of the four intellectual property regimes, copyright is the most central to the day-to-day functioning of higher education. Nearly every course of instruction involves the use of written, visual, intangible, and tangible materials, many if not most of which are subject to copyright protection. Students, faculty, and staff—essentially all the people who comprise higher education—produce and interact with copyrightable and copyrighted materials every day. Copyright relates directly to perhaps the most prominent of higher education’s goals: to educate students through teaching, and to produce scholarship and research that benefit mankind. All of these acts involve creating and using original works …

College Athlete Rights After O'Bannon: Where Do College Athlete Intellectual Property Rights Go From Here?, Victoria Roessler

Vanderbilt Journal of Entertainment & Technology Law

The recent O'Bannon v. NCAA decision, which gave student athletes a right in products that exploit their image and likeness, will have a profound impact on college athlete rights. This giant step forward will propel student athletes to fight for more intellectual property rights. Following the footsteps of professional athletes, these rights will likely include copyrighting sports moves, touchdown celebrations, and signature phrases as well as trademarking nicknames and touchdown dances. This Note encourages the adoption of a program giving student athletes these rights and allowing them to receive compensation, uncapped, that they would split evenly with his or her …

Copyright For Literate Robots, James Grimmelmann

Cornell Law Faculty Publications

Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on …

There's No Such Thing As A Computer-Authored Work - And It's A Good Thing, Too, James Grimmelmann

Cornell Law Faculty Publications

Treating computers as authors for copyright purposes is a non-solution to a non-problem. It is a non-solution because unless and until computer programs can qualify as persons in life and law, it does no practical good to call them "authors" when someone else will end up owning the copyright anyway. And it responds to a non-problem because there is nothing actually distinctive about computer-generated works.

There are five plausible ways in which computer-generated works might be considered meaningfully different from human-generated works: (1) they are embedded in digital copies, (2) people create them using computers rather than by hand, (3) …

Copyright In Pantomime, Brian L. Frye

Law Faculty Scholarly Articles

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '“pantomimes” was forgotten. This Article argues that …