Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 5 of 5
Full-Text Articles in Law
There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco
There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco
Faculty Scholarship
Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …
Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet
Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet
Faculty Scholarship
To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young
Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young
Faculty Scholarship
No abstract provided.
Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco
Authorship And The Boundaries Of Copyright: Ideas, Expressions, And Functions In Yoga, Choreography, And Other Works, Christopher Buccafusco
Faculty Scholarship
This essay uses the Ninth Circuit’s opinion in Bikram’s Yoga College of India v. Evolation Yoga as an opportunity to analyze the nature of copyrightable authorship and the mechanisms that the law uses to screen out uncopyrightable content from otherwise copyrightable works. I argue that although the court likely reached the right result in Bikram, it did so in a confused and poorly supported manner. The court misunderstood the nature of the idea/expression distinction, the role of section 102(b), and the appropriate mechanism for screening out functional features of works. These aspects of the court’s opinion are widespread in copyright …
The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes
The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes
Faculty Scholarship
Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …