Law Commons^™

Co-Authorship Between Photographers And Portrait Subjects, Molly Torsen Stech

Vanderbilt Journal of Entertainment & Technology Law

work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. …

Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …

Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech

Vanderbilt Law School Faculty Publications

Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be …

The Hollywood Circuit’S Protection Of The Batmobile Provides An Uncertain Future For First Amendment Protections, Nicole Geiser

The Journal of Business, Entrepreneurship & the Law

This Comment analyzes the potentially damaging impact the Ninth Circuit’s decision in Towle could have on modern copyright law and the First Amendment. Part I will provide an overview of modern copyright law, challenges faced when deciding the level of protection that should be afforded to characters, and the important difference between literary characters and visually depicted characters and how it can affect the degree of protection allowed. Part II will discuss the history of character copyright, specifically, the different tests adopted by circuit courts and the impact each one has on the protection of characters. Part III will analyze …

An Initial Examination Of Computer Programs As Creative Works, Trina C. Kershaw, Ralph D. Clifford, Firas Khatib, Adnan El-Nasan

Faculty Publications

Products from many domains (art, music, engineering design, literature, etc.) are considered to be creative works, but there is a misconception that computer programs are limited by set expressions and thus have no room for creativity. To determine whether computer programs are creative works, we collected programs from 23 advanced graduate students that were written to solve simple and complex bioinformatics problems. These programs were assessed for their variability of expression using a new measurement that we designed. They were also evaluated on several elements of their creativity using a version of Cropley and Kaufman’s (2012) Creative Solution Diagnosis Scale …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg

Faculty Scholarship

Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …

Code Ownership : Plagiarism And Use, Alexis Nicole Amore

Theses, Dissertations and Culminating Projects

Technology is moving at unmeasurable rates to that of law. Ownership rights and legality become harder to grasp distant theories. With community code-sharing and limiting language structures, when does code become plagiarized or entity-owned? The disciplines of Cyberlaw and computer science are used to provide a better understanding.

The Cyberlaw discipline explores how jurisdiction views cyberspace, source code, and source code’s placement within legislation. Due to cyberspace’s ever-evolving nature, litigation struggles to encompass the possibilities within it. Computer science delves into theory-based excursions that define the law’s shape in the cyber realm. It bolsters the possibility of implementing progressive legislation …

Fair Dealing For The Purpose Of Education: York University V The Canadian Copyright Licensing Agency, Pascale Chapdelaine

Law Publications

In York University v The Canadian Copyright Licensing Agency (2020), the Federal Court of Appeal was confronted with two issues at the heart of ongoing debates in Canadian copyright law. First, whether tariffs of copyright collective societies are mandatory. Second, and the main focus of this case comment, how should the fair dealing doctrine be interpreted with respect to the purpose of education. The Federal Court of Appeal upheld the Federal Court decision that York University Fair dealing Guidelines did not meet the fair dealing requirements in copyright law. This case comment highlights how the Federal Court and Federal Court …

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …

Comment On Andy Warhol Found. For The Visual Arts, Inc. V. Goldsmith, 992 F.3d 99 (2d Cir. 2021), Jane C. Ginsburg

Faculty Scholarship

The Second Circuit’s decision in Andy Warhol Foundation v. Goldsmith retreats both from its prior caselaw’s generous characterization of artistic reuse as “transformative,” and from the outcome-determinacy of a finding of “transformativeness.” The decision suggests both that courts may be applying a more critical understanding of what “transforms” copied content, and that courts may be reforming “transformative use” to reinvigorate the other statutory factors, particularly the inquiry into the impact of the use on the potential markets for or value of the copied work. The court also provided an important explanation of copyrightable authorship in photographs.

In addition to analyzing …

Introducing The Copyright Anxiety Scale, Amanda Wakaruk, Céline Gareau-Brennan, Matthew Pietrosanu

Copyright, Fair Use, Scholarly Communication, etc.

Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente

Faculty Scholarship

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …

Memes And Copyright: Article 13, Branding, And Digital Remix Culture, Yasemin Beykont

Theses and Dissertations

This study investigates the impact of the EU digital copyright directive, Article 13, on memes and internet culture. Due to their transformative nature, it is tricky to fit memes into a traditional copyright framework. Article 13’s filter algorithms will be coded to detect posts that make use of intellectual property, thereby complicating the use of copyrighted images drawn from film and television. This study includes a discourse analysis of news coverage of Article 13 to explore how various groups characterized the value of meme culture and the threats posed by the new directive. It also includes a textual analysis of …

Hocus Pocus: The Magic Within Trade Secret Law, Marianna L. Markley

Journal of Intellectual Property Law

This Note will discuss why trade secret law is the most appropriate form of IP protection for magicians seeking to protect their secrets. First it will discuss the background information on IP protections offered to magicians, specifically within copyright, patent, and trade secret law. After examining previous cases in which magicians have sought protection for their work using each of these different types of IP laws, it will then analyze why trade secret law is the best form of IP protection for magicians.

Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide, Wendy J. Gordon

Faculty Scholarship

In Oracle America, Inc. v. Google LLC, the Federal Circuit undermined copyright law’s deference to patent law and, in doing so, delivered a blow to both regimes. Copyright’s deference— including a historic refusal to enforce rights that might undermine the public’s liberty to copy unpatented inventions-- is a necessary part of preserving inventors’ willingness to accept the short duration, mandatory disclosure, and other stringent bargains demanded by patent law. Deference to patent law is also integral to copyright law’s interior architecture; copyright’s refusal to monopolize functional applications of creative work lowers the social costs that would otherwise be imposed by …

Can Algorithms Promote Fair Use?, Peter K. Yu

FIU Law Review

No abstract provided.

The “Foul” Protection For A Photographer’S Original And Creative Choices In A Photograph: Exploring The Implications Of Rentmeester V. Nike, Inc. On Creativity In Photography, Olivia Lattanza

Touro Law Review

No abstract provided.

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

Substantial Similarity And Junk Science: Reconstructing The Test Of Copyright Infringement, Robert F. Helfing

Fordham Intellectual Property, Media and Entertainment Law Journal

As the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.

Internet Architecture And Disability, Blake E. Reid

Publications

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

What Didn't Happen: An Essay In Speculation, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

Most of us held off celebrating the beginning of a renewed slow trickle of works into copyright's public domain until the first seconds of New Year's Day, 2019, but (if it hadn't been so early in the day), we would have been entitled to raise a glass at 4:04 PM on the preceding December 27th, when the last substantive business undertaken in 2018 by either house of Congress was concluded in the Senate. (Like the House, which wrapped up its business at 4:02, the World's Greatest Deliberative Body had convened that day at 4:00.) At that moment, a last-minute push …

Foreign Contracts And U.S. Copyright Termination Rights: What Law Applies? – Comment, Richard Arnold, Jane C. Ginsburg

Faculty Scholarship

The U.S. Copyright Act gives authors the right to terminate assignments of copyrights in works other than works for hire executed on or after 1 January 1978 after 35 years, and to do so notwithstanding any agreement to the contrary. Given that agreements which are subject to the laws of other countries can assign U.S. copyrights, and purport to do so in perpetuity, U.S. law’s preclusion of agreements contrary to the author’s right to exercise her termination right can give rise to a difficult choice of law issue. Two recent cases which came before courts in the U.S. and England …

Fair Use Factor Four Revisited: Valuing The "Value Of The Copyrighted Work" – Essay, Jane C. Ginsburg

Faculty Scholarship

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should …

Fair Use In The United States: Transformed, Deformed, Reformed?, Jane C. Ginsburg

Faculty Scholarship

Since the U.S. Supreme Court’s 1994 adoption of “transformative use” as a criterion for evaluating the first statutory fair use factor (“nature and purpose of the use”), “transformative use” analysis has engulfed all of fair use, becoming transformed, and perhaps deformed, in the process. A finding of “transformativeness” often foreordained the ultimate outcome, as the remaining factors, especially the fourth (impact of the use on the market for or value of the copied work), withered into restatements of the first. For a time, moreover, courts’ characterization of uses as “transformative” seemed ever more generous (if not in some instances credulous). …

Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora

The Journal of Business, Entrepreneurship & the Law

This paper will explore the legality of web scraping through the lens of recent litigation between web scraper hiQ Labs and the online professional networking platform, LinkedIn. First, the paper will study the background of web scraping litigation, some challenges courts face in issuing consistent verdicts, and the most common claims companies make against web scrapers. Then the paper will address three of the most common claims and identify court motivations and limitations within the doctrines. The first claims are those arising from the federal Computer Fraud and Abuse Act (CFAA). Next, the paper will investigate copyright claims and defenses …

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu

U.S. Supreme Court Briefs

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific methods …

Nerf This: Copyright Highly Creative Video Game Streams As Sports Broadcasts, Madeleine A. Ball

William & Mary Law Review

Since the 1980s, video games have grown exponentially as an entertainment medium. Once relegated to the niche subcultures of nerds, video games are now decidedly mainstream, drawing over 200 million American consumers yearly. As a result, the industry has stepped up its game. No longer simply a diversion to be enjoyed individually, Americans are increasingly watching others play video games like they might watch television. This practice, where enthusiastic gamers broadcast their video game session online to crowds of viewers, is called “live streaming.”

While streaming has become lucrative and popular, American copyright law currently nerfs this nascent industry. Streams …