Law Commons^™

Improper Appropriation, Daniel J. Gervais

Daniel J Gervais

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner

University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches

Copyright begins at “birth”

You can also register.

The holder of copyright controls the ability of others to distribute: reproductions, derivatives, translations, performance

Length of term = until you die + 70 years

Licensing and contracts

Permissions

Publisher contracts

Creative Commons licenses

Gold Open Access/APCs

Predatory journals

"Can I use this {image / quote / video clip / ...} in my {lecture / course materials / dissertation / ...}” ?

Public domain (= no copyright)

Educational use = Not Infringement

Plagiarism vs. infringement

Fair Use (1): Re-using copyrighted materials in your own work--legally

Fair use (2): The 4 Factors

Who …

Star Athletica Tells The Fashion Industry To Knock-It-Off With The Knockoffs, Samantha Burdick

Pepperdine Law Review

At any given fast fashion store, there may be a near exact replica of a ‘designer’ clothing item that sells for four times less than the amount it would at a luxury retailer. Wait—isn’t that illegal? After the Supreme Court’s landmark separability test created in Star Athletica, the answer may soon be yes. Fast fashion chains make their money exploiting the historical lack of copyright protection in the fashion industry. Lamps, shoes, and clothes have long been held ineligible for copyright protection because the utilitarian features are inseparable from the artistic. In other words, the part of clothing that is …

Copyright Protection For Conceptually Separable Artistic Features Post-Star Athletica: A Useful Article On Useful Articles, Daan G. Erikson

Chicago-Kent Journal of Intellectual Property

In the wake of the U.S. Supreme Court’s ruling in Star Athletica v. Varsity Brands in 2017, U.S. federal district courts and the Copyright Office Review Board have grappled with the Supreme Court’s reimagined conceptual separability test for determining the copyrightability of artistic aspects of useful articles. An examination of the decisions in the first eighteen months post-Star Athletica reveals district courts have interpreted the Supreme Court’s guidance inconsistently, with some courts adding language to the test and even using overruled portions of previous tests. The author takes an empirical approach to evaluating such decisions and the trends that …

Scènes À Faire In Music: How An Old Defense Is Maturing, And How It Can Be Improved, Torrean Edwards

Marquette Intellectual Property Law Review

First, this Comment will provide background on the test for copyright infringement used by the Fourth, Eighth, and Ninth Circuits. Second, the Comment will address what scènes à faire is and how recent cases have treated scènes à faire in music. Third and finally, the Comment will offer a suggestion as to a proper scènes à faire determination and analyze how scènes à faire should be applied.

Improper Appropriation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

Evaluating A Unified Intellectual Property System Of Internet Service Providers In The Electronic Commerce Law -- A Comparative Research Between China And The U.S., Yifan Huang

Maurer Theses and Dissertations

As the Electronic Commerce Law went into effective in Jan. 1st, 2019, not only did China establish a unified IP protection system of ISPs, but also set up a blueprint for a comprehensive mechanism of ISPs for the future improvement. The question is whether this new law can effectively prevent the serious IP infringement issues of ISPs and therefore successfully improve the IP protection in China. To answerer this question, the dissertation analyzes the development of the mechanism of ISPs in copyright and trademark regimes before the Electronic Commerce Law, and seeks to demonstrate the impact of the Electronic Commerce …

Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean

Daniel Harris Brean

Trends In Fashion Law: Striking The Proper Balance Between Protecting The Art Form And Sustaining A Thriving Online Market, Elisabeth Johnson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Sample Solution: How Blockchain Technology Can Clarify A Divided Copyright Doctrine On Music Sampling, Angelo Massagli

University of Miami Business Law Review

This article will examine how blockchain technology can clarify the complex and inconsistent judicial approach to the copyright doctrine regarding music sampling. As it stands today, circuit courts are divided over how to handle copyright infringement stemming from unlicensed music sampling. The first approach is simple: if you want to sample, get a license. The second approach is more lenient and applies a de minimis standard that forces courts to make fact sensitive, case–by–case decisions regarding whether or not the sample of the original work is sufficient enough to be defined as an infringement. The reason for this split in …

The Issues Of Cooperation Within Family, Makhalla And Public Organizations In The Formation Of Legal Consciousness, M. Najimov

Review of law sciences

In the article, the issues of cooperation of family, neighborhood and other public organizations in the formation of legal mind and legal culture are analyzed. Suggestions and recommendations possessing practical value to further development to improve the activity of civil institutions to upgrade legal mind and legal culture are stated.

The Issues Of Cooperation Within Family, Makhalla And Public Organizations In The Formation Of Legal Consciousness, M. Najimov

Review of law sciences

In the article, the issues of cooperation of family, neighborhood and other public organizations in the formation of legal mind and legal culture are analyzed. Suggestions and recommendations possessing practical value to further development to improve the activity of civil institutions to upgrade legal mind and legal culture are stated.

Revoking The "Get Out Of Jail Free Card": How Mavrix Photographs, Llc V. Livejournal, Inc. Could Revolutionize User-Generated Safe Harbor Protections Under § 512(C) Of The Digital Millennium Copyright Act, Caitlin Oswald

Loyola of Los Angeles Law Review

No abstract provided.

Insuring Failure: How Crowd-Sourcing Sites May Be Forced Into The Role Of Patent Insurance, Spencer S. Haley

Journal of Intellectual Property Law

No abstract provided.

Backing Down: Blurred Lines In The Standards For Analysis Of Substantial Similarity In Copyright Infringement For Musical Works, Nicholas Booth

Journal of Intellectual Property Law

No abstract provided.

Lookalike Logos: Is A High School's Use Of A Logo Or Insignia Similar To That Of A University A Violation Under The Lanham Act, Keegan Girodo

Marquette Sports Law Review

None

Top Tens In 2017: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court loosened the grip of patentees on their products, holding that contractual restrictions on patented product are ineffective to preserve patent rights. The Court also loosened the grip of the Eastern District of Texas on patent cases, announcing a narrower standard that will send more cases to Delaware. The Federal Circuit cases piled up on applying the Alice standard to filter nonpatentable abstract ideas from patentable inventions. Meanwhile, even as the constitutionality of the Patent Trial and Appeals Board pends before the Supreme Court, hundreds of PTAB decisions on the validity of patents move onward to the Federal …

How Should Damages Be Calculated For Design Patent Infringement?, Mark D. Janis

Articles by Maurer Faculty

No abstract provided.

A Patiently Offensive Test: Proposing Changes To The Test For Design Patent Infringement, Carl J. Hall

Valparaiso University Law Review

No abstract provided.

Brief Amici Curiae Of Intellectual Property Professors In Support Of Petitioner, No. 18-600, Texas Advanced Optoelectronic Solutions, Inc. V. Renesas Electronics America, Inc., Timothy R. Holbrook, Ann Bartow, Andrew Chin, David C. Hricik, Yvette Joy Liebesman, Lucas Osborn

All Faculty Scholarship

To comply with the obligations of the Uruguay Round Agreements, particularly the Agreement on the Trade Related Aspects of Intellectual Property (TRIPS), Congress amended 35 U.S.C. § 271(a) to make it an act of infringement to “offer to sell” a patented invention within the United States. See Uruguay Round Agreements Act, Pub. L. No. 103-465, §§ 531-533, 108 Stat. 4809 (1994).

The Federal Circuit has interpreted this provision in a manner contrary to the presumption against the extraterritorial reach of United States laws. The Federal Circuit has held that location of the ultimate sale contemplated in the offer controls the …

Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark

Daniel Harris Brean

Assigning Infringement Claims: Silvers V. Sony Pictures, Heather B. Sanborn

Maine Law Review

The Copyright Act establishes protection for original, creative works of authorship as a means of providing ex ante incentives for creativity. But how real is that protection? Imagine that you have written a script and managed to have your play produced in a local community theater. A few years later, you find that a major Hollywood studio has taken your script, adapted it slightly, and made it into the next summer blockbuster, raking in millions without ever obtaining a license from you. Of course, you can sue them for infringement. But how much will that litigation cost and what are …

Piracy On Peer-To-Peer File Sharing Networks: Why A Streamlined Online Dispute Resolution System Should Not Be Forgotten In The Shadow Of A Federal Small Claims Tribunal, Naomi Gemmell

Pepperdine Dispute Resolution Law Journal

This Article proposes application of an ADR system for resolving online copyright disputes related to P2P file sharing. Section II provides an overview of P2P file sharing networks and associated copyright infringement. Section III explores current approaches that fall short in resolving P2P copyright disputes, namely the Digital Millennium Copyright Act, litigation, and private agreements. Section IV examines the two primary proposed solutions to online copyright disputes: alternative dispute resolution and federal small claims. Section V recommends that a streamlined online dispute resolution system is necessary (even if a federal small claims tribunal is adopted), and concludes.

Charitable Trademarks, Leah Chan Grinvald

Akron Law Review

Charity is big business in the United States. In 2015, private individuals or entities donated over $350 billion, which accounted for approximately two percent of the gross domestic product in the United States. Even though this seems like big money, these donations were split among over 1.5 million organizations. And each year, the number of charitable organizations grows and therefore, the competition for public donations increases. In part to succeed in such competition, some charitable organizations have turned to branding and trademarks as a way to differentiate their entities and to encourage donations. Drawing from the for-profit branding and trademarking …

Redefining The Intended Copyright Infringer, Yvette Joy Liebesman

Akron Law Review

The contemporary copyright infringer is pretty much anyone who can get caught. Yet, who could be caught back when the Copyright Act of 1976 was enacted is just a subset of those who can be caught today—we had very different concepts about who was the intended target of an infringement action than who fits into that mold today. The advent and growth of cyberspace communication now makes it both easier to infringe and for IP owners, with very little effort, to capture infringers. The ability of individuals to both easily infringe and easily be found infringing has altered the IP …

Reconsidering Experimental Use, Rochelle Cooper Dreyfuss

Akron Law Review

In the years since the Supreme Court began to narrow the scope of patentable subject matter, uncertainties in the law have had a deleterious impact on several important innovation sectors, including, in particular, the life sciences industry. There are now initiatives to expand patentable subject matter legislatively. In this article, I suggest that the Supreme Court’s jurisprudence is an outgrowth of the concern that patents on fundamental discoveries impede scientific research. To deal with that issue, any measure to expand the subject matter of patenting should be coupled with a parallel expansion of defenses to infringement liability, including the restoration …

Patent Submission Policies, Ryan T. Holte

Akron Law Review

This Article focuses on the early stage of commercialization communication when a third-party inventor owns an invention protected by a patent that a manufacturer-commercializer may profit from producing—long before any allegation of infringement or litigation. These submission-review communications by unaffiliated third parties are covered by corporate policies known as “patent submission policies.” They are the figurative “front doors” to a company for any third-party inventor, crucial to the commercialization of inventions generally. Unfortunately, patent submission policies have thus far remained unstudied in legal academic scholarship.

This Article collects and analyzes the current variations of patent submission policies adopted by the …

Seeing’S Insight: Toward A Visual Substantial Similarity Test For Copyright Infringement Of Pictorial, Graphic, And Sculptural Works, Moon Hee Lee

Northwestern University Law Review

Before imposing liability for copyright infringement, a court analyzes whether the defendant’s allegedly infringing work is substantially similar to the copyright-holder plaintiff’s allegedly infringed work. This substantial similarity analysis broadly contains two steps. First, facts and ideas do not receive copyright protection and are filtered out. Second, the two works are compared to see if there is material overlap between the two works’ remaining creative expression—i.e., whether or not the two works are substantially similar. This two-step approach furthers the delicate dual goal of copyright law to keep ideas and facts freely available as raw material for creation while awarding …

The Patently Unexceptional Venue Statute, Paul Gugliuzza, Megan M. La Belle

Faculty Scholarship

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics …

Trending @ Rwu Law: Professor Niki Kuckes's Post: 'Disparaging' Trademarks Meet The First Amendment 02-07-2017, Niki Kuckes

Law School Blogs

No abstract provided.