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Full-Text Articles in Law

Obtaining Trademark Registration For Marks Containing Political Commentary: A Look Into Vidal V. Elster, Annick Runyon May 2024

Obtaining Trademark Registration For Marks Containing Political Commentary: A Look Into Vidal V. Elster, Annick Runyon

University of Miami Law Review

For decades, courts have struggled with balancing trademark law with the First Amendment—specifically with cases challenging the denial of trademark registration of certain marks. Congress codified trademark registration through the Lanham Act, also known as the Trademark Act of 1946. This statute outlines the registration process and expands the rights of trademark owners. In recent years, a string of cases have ruled certain provisions of the Lanham Act that bar certain marks from registration unconstitutional.

Currently under review by the Supreme Court, the case Vidal v. Elster involves an applicant who was denied trademark registration for his mark “Trump Too …


Jack Daniel’S And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey Jan 2024

Jack Daniel’S And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Faculty Scholarship

In Jack Daniel’s v. VIP Products, the Supreme Court announced a bright-line rule: whatever speech protections govern the use of trademarks in artistic works, no such rule applies “when an alleged infringer uses a trademark in the way the Lanham Act most cares about: as a designation of source for the infringer’s own goods.” Those who engage in “trademark use,” in other words, must face the usual likelihood-of-confusion standard, regardless of whether their use also has expressive dimensions. The Jack Daniel’s defendant conceded that it was engaged in trademark use, so the opinion did not do the hard work …


Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler Jul 2023

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …


Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon Jun 2023

Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon

Akron Law Review

Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application …


Texas’ War On Social Media: Censorship Or False Flag, Leni Morales May 2023

Texas’ War On Social Media: Censorship Or False Flag, Leni Morales

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.


The Hollywood Circuit’S Protection Of The Batmobile Provides An Uncertain Future For First Amendment Protections, Nicole Geiser Jan 2022

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 …


Justice Breyer And Intellectual Property Law Jan 2022

Justice Breyer And Intellectual Property Law

Marquette Intellectual Property & Innovation Law Review

None


Four Privacy Stories And Two Hard Cases, Jessica Silbey Jan 2022

Four Privacy Stories And Two Hard Cases, Jessica Silbey

Faculty Scholarship

In the context of reviewing Scott Skinner's book "Privacy at the Margins" (Cambridge University Press, 2021), this article discusses four "privacy stories" (justifications for and explanation of the application of privacy law) that need substantiation and reinterpretation for the 21st century and for what I call "fourth generation" privacy law and scholarship. The article then considers these stories (and Skinner's analysis of them) in light of two "hard" cases, one he discusses in his book and one recently decided by the Massachusetts Supreme Judicial Court, both concerning privacy in taking and dissemination of photographs.


Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad Oct 2021

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …


Protecting The First Amendment Rights Of Video Games From Lanham Act And Right Of Publicity Claims, Yen-Shyang Tseng Mar 2021

Protecting The First Amendment Rights Of Video Games From Lanham Act And Right Of Publicity Claims, Yen-Shyang Tseng

Pepperdine Law Review

In 2013 and 2015, the Ninth Circuit decided two nearly identical cases in which professional football players alleged a video game publisher used their likenesses without authorization in a game that simulates real football games. One plaintiff brought a false endorsement claim under the Lanham Act, while others brought state law right of publicity claims. That made all the difference. The Ninth Circuit found the First Amendment protected the game against the false endorsement claim, but not against the right of publicity claims. These contradictory results stem from court’s application of the Rogers v. Grimaldi test to Lanham Act claims …


From Lex Informatica To The Control Revolution, Julie E. Cohen Jan 2021

From Lex Informatica To The Control Revolution, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the “control revolution” they enabled—in brief, a quantum leap in the capacity for highly granular oversight and management—have elicited long-term, enduring changes in the …


The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley May 2020

The Copyright Act’S Mandatory-Deposit Requirement: Unnecessary And Unconstitutional, Drew Thornley

Loyola of Los Angeles Law Review

Many people are unaware of a federal copyright statute that requires owners of material published in the United States to furnish the federal government with two copies of each item published. Section 407(a) of the Copyright Act of 1976 (17 U.S.C. § 407) states that “the owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of such publication—(1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with …


Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen Apr 2020

Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored …


Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr Jan 2020

Some First Amendment Implications Of The Trademark Registration Decisions, Marc Rohr

Marquette Intellectual Property Law Review

No abstract provided.


Copyright And Human Rights In The Ballroom: A Minuet Between The United States And The Eu, Maria Lillà Montagnani, Alina Trapova Jan 2020

Copyright And Human Rights In The Ballroom: A Minuet Between The United States And The Eu, Maria Lillà Montagnani, Alina Trapova

Mitchell Hamline Law Review

No abstract provided.


Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly Jan 2020

Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly

Faculty Scholarship

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.


Internet Architecture And Disability, Blake E. Reid Jan 2020

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 …


Courts, Trademarks, And The Icann Gold Rush: No Free Speech In Top Level Domains, Jerome O'Callaghan, Paula O'Callaghan Dec 2019

Courts, Trademarks, And The Icann Gold Rush: No Free Speech In Top Level Domains, Jerome O'Callaghan, Paula O'Callaghan

Loyola of Los Angeles Entertainment Law Review

In recent years, the Internet Corporation for Assigned Names and Numbers (ICANN) expanded top-level domains, such as .com, .net, and .org, to include a very wide variety of new terms. One of the new options is .sucks. This Article examines the potential for conflict when trademark holders seek to protect their mark in the context of the .sucks domain. There is a temptation to see this issue in terms of consumers’ free speech rights pitted against corporate interests. However, the recent privatization of ICANN does not bode well for promoting consumers’ First Amendment rights in domain name battles.


Making Room For Big Data: Web Scraping And An Affirmative Right To Access Publicly Available Information Online, Amber Zamora Oct 2019

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 …


Scotus's Second Take On Trademark Registration As Speech, Christine Farley Jun 2019

Scotus's Second Take On Trademark Registration As Speech, Christine Farley

Editorial Contributions

Professor Farley offers her take on Iancu v. BrunettiURL: https://patentlyo.com/patent/2019/06/scotuss-trademark-registration.html


The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman Apr 2019

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

All Faculty Scholarship

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …


Copyright Policy As Catalyst And Barrier To Innovation And Free Expression, Amanda Reid Mar 2019

Copyright Policy As Catalyst And Barrier To Innovation And Free Expression, Amanda Reid

Catholic University Law Review

At its core, copyright is an innovation policy, a competition policy, and a free expression policy. Copyright seeks to balance incentivizing a public good with providing a private interest. Copyright’s purpose to catalyze creative expression and innovation is canonical; creativity and innovation are synergetic. Copyright is a means of promoting progress; copyright is not an end in itself. Much like freedom of expression and new innovations are not ends in themselves, copyright protection is not for its own sake. Freedom of expression is often heralded as a means of fostering democratic self-governance, truth, and happiness. Innovation is seen as a …


Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons Jan 2019

Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …


Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert Jan 2019

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

UF Law Faculty Publications

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …


The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart Jan 2019

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …


Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum Apr 2018

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …


Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall Jan 2018

Deepfake Videos: When Seeing Isn't Believing, Holly Kathleen Hall

Catholic University Journal of Law and Technology

Videos, known as deepfakes, use readily available software to create a work that shows people saying and doing things they may never have uttered or engaged in. The technology making the videos appear very authentic is advancing at such a rate that people may not be able to detect if the videos are fact or fiction. Given the hasty acceptance of other forms of fake news in society, deepfake videos have the ability to affect the nature of information the public receives about candidates and policies. This study examines the potential use of deepfake videos in the democratic process, analyzes …


The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku Jan 2018

The First Amendment Implications Of Copyright's Double Standard, Raymond Shih Ray Ku

Faculty Publications

Beginning with a simple question, “What’s the big deal? It’s just entertainment,” this Article argues that copyright law restricts more than just entertainment - it restricts freedom of artistic expression. Despite copyright’s facial neutrality, courts have interpreted otherwise neutral rules to subject authors to a double standard for expression. Through a series of doctrinal contradictions and hypocrisies, copyright singles out “just entertainment,” imposing greater restrictions upon the freedom of those authors relative to all other authors. By discriminating against “entertainment,” the current doctrine violates its own fundamental tenet of non-discrimination. Moreover, by selectively restricting how authors may choose to engage …


Public Fora Purpose: Analyzing Viewpoint Discrimination On The President’S Twitter Account, James M. Lopiano Jan 2018

Public Fora Purpose: Analyzing Viewpoint Discrimination On The President’S Twitter Account, James M. Lopiano

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, protectable speech takes many forms in many spaces. This Note is about the spaces. This Note discusses whether President Donald J. Trump’s personal Twitter account functions as a public forum, and if so, whether blocking constituents from said account amounts to viewpoint discrimination—a First Amendment freedom of speech violation. Part I introduces the core legal devices and doctrines that have developed in freedom of speech jurisprudence relating to issues of public fora. Part II analyzes whether social media generally serves as public fora, whether the President’s personal Twitter account is a public forum, and whether his recent habit of …


Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood Jan 2018

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.