Law Commons^™

Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung

Chicago-Kent Law Review

Within the past couple of years, social networking websites have become an immensely popular destination for people from all walks of life. Websites like Facebook and Twitter now count tens of millions of worldwide users, including world leaders and a number of celebrities. Eventually, users realized that social networking websites lent themselves to the quick and easy impersonation of celebrities through the creation of fake social networking accounts, often as a form of parody. One subject of such impersonation was professional baseball manager Tony La Russa, who took the then-unprecedented step of suing his impersonators and Twitter over the incident. …

Everything Is Connected, Kembrew Mcleod

Kembrew McLeod

The article discusses U.S. copyright law and the copyright clearance system, focusing on the author's documentary film "Copyright Criminals," which aired on Public Broadcasting System (PBS). It explores sampling and collage in audiovisual media, commenting on use of the practice by hip-hop group Public Enemy. Other topics include the Washington, D.C. Center for Social Media, intellectual property, and fair use. The author also examines his book "Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property" and a prank in which he successfully copyrighted the phrase "Freedom of Expression"

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words

3,809 footnotes (Bluebook formatted)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does …

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words (including 380 footnotes)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so, does this …

Social Semiotics In The Fair Use Analysis, H. Brian Holland

H. Brian Holland

Social Semiotics In The Fair Use Analysis, H. Brian Holland

H. Brian Holland

Transformation In Property And Copyright, Christopher M. Newman

Christopher M Newman

Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” …

Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan

University of Michigan Journal of Law Reform

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor …

An Analysis Of The Fair Use Defense In Dr. Seuss Enterprises V. Penguin, Mary L. Shapiro

Golden Gate University Law Review

This note sets forth the facts and procedural history of Dr. Seuss Enterprises v. Penguin, which is the most recent Ninth Circuit copyright decision presenting the affirmative fair use defense. Section III provides a brief background of copyright law and the fair use defense. Section III also presents a historical view of the fact-sensitive, case-by-case analysis of the four statutory fair use defense factors codified in 17 U.S.C. § 107. Section IV examines the Ninth Circuit's decision in Dr. Seuss Enterprises v. Penguin, focusing on Seuss Enterprises' copyright infringement claim. Section V critically analyzes the Ninth Circuit's holding, focusing on …

Intellectual Property Law - New Kids On The Block V. News America Publishing, Inc.: New Nominative Use Defense Increases The Likelihood Of Confusion Surrounding The Fair Use Defense To Trademark Infringemen, Derek J. Westberg

Golden Gate University Law Review

No abstract provided.

Intellectual Property - Sega Enterprises Ltd. V. Accolade, Inc.: Setting The Standard On Software Copying In The Computer Software Industry, Julie Aguilar

Golden Gate University Law Review

No abstract provided.

Galoob V. Nintendo: Derivative Works, Fair Use & Section 117 In The Realm Of Computer Programs Enhancements, Christopher A. Kesler

Golden Gate University Law Review

This Note will analyze the holding in Lewis Galoob Toys, Inc. v. Nintendo of America. First a background of copyright law relevant to computer technology and video games will be developed. Emphasis will be placed on the issues surrounding exceptions to a copyright holder's exclusive rights and the enhancement of computer programs.

Renaming That Tune: Aural Collage, Parody And Fair Use, Alan Korn

Golden Gate University Law Review

Although the unauthorized use of sound recordings in derivative collage compositions may in some instances infringe on the copyright of a given composition or sound recording, such use may be protected under a fair use analysis typically accorded works of parody. Therefore this Comment will first provide some historical context for understanding aural appropriation as an evolving 20th century art form with parallels and antecedents in the visual arts. Next comes a discussion of how certain collage-based compositions may violate applicable copyright laws under the 1976 Copyright Act. This Comment will then explore whether the appropriation of pre-existing sound recordings …

Copyright Law, Suheil Joseph Totah

Golden Gate University Law Review

No abstract provided.

What's New In The Neighborhood - The Export Of The Dmca In Post-Trips Ftas, Anne Hiaring

Annual Survey of International & Comparative Law

This paper will first discuss the historical use of trade regulation to regulate intellectual property law protection outside the U.S., then will discuss the history of the WIPO Internet Treaties, the implementation of them in the DMCA, the provisions of the Induce Act, and the DMCA derived provisions in the 2003 FTA with Singapore.

Essence Of Copyright By Raheel R Daureeawo Llm, Raheel R. Daureeawo

Raheel R Daureeawo

Copyright is and has always been about policy. And what I intend to discuss in this paper is a list of topics which have always been center of debate in copyright courts. Although each topic is a book in itself, but my attempt here is to consolidate this list. The goal of the law of copyright has always been to promote scientific, literary and artistic creativity and protect as well as limit these rights in order to prevent monopolies. In order to understand the present and future of copyright it is imperative to know its past. There is a debate …

Getting To Best Practices - A Personal Voyage Around Fair Use, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

These days, I view fair use as a central feature of the law around our information ecology - its presence reminding us, from day to day, that there is more to copyright than maximization, and that innovation happens when the doctrinal settings are loose enough to permit a good deal of "play" (literally and figuratively) in the system. But before the mid-1990s I thought little about the fair use doctrine and did less. As I suspect may be true of other copyright lawyers of my generation (and the ones preceding it, I spent most of my professional career taking fair …

Proving Fair Use: Burden Of Proof As Burden Of Speech, Ned Snow

Faculty Publications

Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair-use burden of proof is repugnant to the fair use purpose. Today, copyright holders are exploiting the burden …

Best Intentions: Reconsidering Best Practices Statements In The Context Of Fair Use And Copyright Law, Jennifer E. Rothman

All Faculty Scholarship

Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the …

Can Newspapers Be Saved? How Copyright Law Can Save Newspapers From The Challenges Of New Media, Keiyana Fordham

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman

All Faculty Scholarship

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …

The Fifth Element: The Unspoken Element In The Fair Use Four-Part Test, B. Douglas Robbins

B. Douglas Robbins

For artists seeking to use copyrighted media in their installations without having to purchase a license, fair use seeks satisfaction of a fluid four-part test. Nowhere in this four-prong test is there any mention of whether the copyrighted material used is unique or a member of a category of work in limited supply. Yet numerous courts have pondered this unspoken “Fifth Element,”—the question of limited availability or uniqueness—when evaluating fair use claims. This paper examines the Fifth Element and the deeper analytical and policy reasons for its emergence, despite any explicit endorsement from Congress.

Hybrid Vigor: Mashups, Cyborgs, And Other Necessary Monsters, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Does remix matter? This brief comment addresses the critique of importance, arguing that remix culture as well as the popular/mass culture from which it springs are of vital importance to human flourishing, invoking Donna Haraway's concept of the cyborg to investigate the fluidity, dynamism, and monstrousness of remixes and remixers.

Untold Stories In South Africa: Creative Consequences Of The Rights Clearance Culture For Documentary Filmmakers, Sean M. Flynn, Peter A. Jaszi

PIJIP Faculty Scholarship

This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective film making posed by escalating copyright clearance requirements.

I Put You There: User-Generated Content And Anticircumvention, Rebecca Tushnet

Vanderbilt Journal of Entertainment & Technology Law

This Article discusses recent rulemaking proceedings before the Copyright Office concerning the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). During these proceedings, non-institutionally affiliated artists organized to assert their interests in making fair use of existing works, adding new voices to the debate. A proposed exemption for noncommercial remix video is justified to address the in terrorem effect of anticircumvention law on fair use. Without an exemption, fair users are subjected to a digital literacy test combined with a digital poll tax, and this regime suppresses fair use. The experience of artists (vidders) confronting the law illustrates both …

Recut, Reframe, Recycle: The Shaping Of Fair Use Best Practices For Online Video, Peter Jaszi

Articles in Law Reviews & Other Academic Journals

This article discusses the intertwining of creative and copyright practices, as demonstrated by the emergence and evolution of standards to assess fair use in online video from 2007-2009. The development of such standards demonstrates the effectiveness of community-based standards to expand the utility of fair use and the importance of practice in affecting the interpretation of law. This process demonstrates the relationship between copyright practice and creative practice.

The Copyright Principles Project: Directions For Reform, Jessica D. Litman, Pamela Samuelson, The Copyright Principles Project

Articles

Copyright law performs a number of important functions. It facilitates public access to knowledge and a wide range of uses of creative works of authorship, and, in so doing, it helps educate our populace, enrich our culture, and promote free speech, free expression, and democratic values. It provides opportunities for rights holders to recoup investments in creating and disseminating their works and to enjoy the fruits of whatever success arises from the public's uses of their works. In the process, copyright also plays a role in regulating new technologies and services through which creative works may be accessed. A well-functioning …

Some Optimism About Fair Use And Copyright Law, Michael J. Madison

Articles

This short paper reflects on the emergence of codes of best practices in fair use, highlighting both the relationship between the best practices approach and an institutional perspective on copyright and the relationship between the best practices approach and social processes of innovation and creativity.

Copyright And Academia: Debunking Common Misconceptions And Myths, Jeffrey D. Graveline

UAB Libraries Professional Work

Few words strike fear into the hearts of college faculty and administrators like copyright infringement. Misunderstandings and misinformation about copyright run rampant on college campuses today which can lead to stifling classroom teaching or even liability for copyright infringement. In this column I begin with a short overview of copyright and fair use followed by a discussion of some of the more common copyright myths I have encountered over the past few years.

Transformative Use And Cognizable Harm, Thomas F. Cotter

Vanderbilt Journal of Entertainment & Technology Law

In recent years, the question of whether the unauthorized use of a copyrighted work is "transformative" has become a dominant consideration in determining whether the use is fair or unfair. As critics have pointed out, however, this emphasis on transformative use is both underinclusive and indeterminate of the range of uses that fall within the scope of the fair use privilege. Worse yet, efforts to define or apply the concept of transformative use, or to distinguish fair transformative uses from transformative uses that infringe the copyright owner's exclusive right to prepare derivative works, often serve only to illuminate the concept's …