Law Commons^™

Copyright Eligibility For Ai Works Under United States Law, Roger V. Skalbeck

Law Faculty Publications

This article examines copyright eligibility for works that incorporate generative AI elements under United States law, explaining that such works may be protected only to the extent they contain human-authored expression.  This expression can appear as creative selection, arrangement, editing, or other expressive contributions, while unedited or autonomously generated AI output is not copyrightable. The article highlights how the U.S. Copyright Office’s registration and review system, through disclosure requirements, refusals, and public registration records, creates meaningful evidence about boundaries of copyright protection for AI-assisted works. The article contrasts this U.S. registration framework with other legal systems, including European jurisdictions such …

The Trademark Bargain: Registration As Disclosure, Dustin Marlan

American University Law Review

This Article highlights the central—and under-theorized—role that disclosure plays within trademark law. By loose analogy, the patent disclosure requirement is a cornerstone of patent law, embodying the “patent bargain” where an inventor must disclose their invention in exchange for a twenty-year monopoly. This quid pro quo is believed to stimulate the progress of science and technology, making patent disclosure the very pulse of the patent regime. However, the fundamental importance of disclosure in trademark law remains underexplored. Like patents, trademark law imposes a rigorous bargain—to obtain the enhanced rights granted by federal registration, trademark owners must first make significant disclosures …

Patenting The Unexpected, Sean B. Seymore

American University Law Review

Unexpected discoveries have transformed human existence. They’ve revolutionized science and spawned entire new fields of research. While unexpected discoveries seem inventive and worthy of patent protection, they don’t formally align with traditional patent theory. The bedrock principle that an invention begins with the conception of an idea in the inventor’s mind and ends with implementation doesn’t apply to unexpected discoveries. This misalignment is most acute for pharmaceuticals, where the discovery of new uses for old drugs has tremendous social and economic importance. Since a drug can inherently treat multiple conditions in a patient—even those unknown to the patient, doctor, or …

An Evidence-Based Approach To Fair Use, Clark D. Asay, Cree Jones, Cassidy Mccleary, Stephanie Plamondon

Georgia Law Review

Recent Supreme Court cases have opened the door for market effects to play an even more prominent role in copyright law’s fair use defense to copyright infringement. Historically, however, market effect analysis under fair use’s factor four has either been largely speculative or merely a repackaging of analysis done under the first three factors of the fair use defense. We argue that recent developments in data availability and causal estimation in the social sciences enable litigants and courts in many cases to engage in a more fulsome and credible analysis of market effects in fair use cases. As a proof …

Function Over Form: Why Wipo's Procedural Treaties Are Not Enough, Cassidy Serger

University of Cincinnati Law Review

No abstract provided.

Mobility-Restricting Covenants In Business Contracts: The Case Of Franchising, Francine Lafontaine, Lorenzo G. Luisetto, J. J. Prescott

Law & Economics Working Papers

Several studies show that restrictive covenants in employment contracts, such as noncompete agreements, may affect employees in detrimental ways, including by reducing mobility and suppressing wages. While such concerns are real, these clauses also have the potential to serve legitimate business purposes by helping companies protect valuable information, which can encourage investment and training and enhance social welfare. This paper explores the use of several types of covenants, including noncompetes but also confidentiality and post-relationship non-recruitment clauses, in franchise contracts, an important and accessible category of business contracts. Many of these contracts impose restrictive covenants on franchisees but also on …

Generational Impact: How U.S. Government Generative A.I. Use Reinvigorates Copyright-Based Takings Concerns, Sophia Tully

William & Mary Bill of Rights Journal

This Note argues (1) that the unique character of government copyright infringement supports a copyright holder’s use of the Takings Clause of the Fifth Amendment, as opposed to reliance on the Copyright Act for downstream Gen A.I. suits; (2) that Gen A.I. developers may wage similar claims once asserting authorship rights and copyright over their outputs; and (3) that the viability of federal government copyright infringement as a regulatory taking could change the way legal actors deal with copyrighted material. More modestly assessed, an answer on whether the Takings Clause protects copyrights would offer much needed guideposts as intellectual property …

Readers Are Authors, Especially In The Ai Age, Jessica Silbey

Faculty Scholarship

In this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction.

Where Did All The Genericide Cases Go? And Should They Be Gone For Good?, Daniela Camacho

Fordham Intellectual Property, Media and Entertainment Law Journal

Trademarks are all around us. It would be difficult to go an entire day without encountering a trademark—In fact, three-fourths of the words we use in our day-to-day conversations have been claimed as trademarks by various companies for various products. Often, we don’t even recognize all the marks we come across as trademarks. Words such as “aspirin,” “escalator,” and “trampoline” were all once trademarks. Over time, these words began to signify the product more than the producer; Because the marks could no longer identify the product’s source as trademarks are supposed to, the marks suffered “genericide” and were cancelled.

In …

Upcycled And Rightful: Navigating Trademark Law And The Circular Economy, Irene Calboli, Gabrielle Armstrong

Texas A&M Journal of Property Law

This Article elaborates on the practice of upcycling and argues that upcycling should be considered a lawful practice under current trademark rules in the United States. Upcycling is the process of taking existing products lawfully sold on the market, in most instances, used products, and giving these products a second life by adding additional elements and decorations or by using the still viable product parts to create new products altogether. Because of its focus on reusing existing products or product parts, the practice of upcycling has become increasingly popular, also because it promotes circular and environmentally friendly production practices. However, …

An Out-Of-The-Block Solution For Modern Ip Law: How Pairing Generative Ai With Blockchain Could Resolve Copyright Conflicts, Emma Wozniak

University of Cincinnati Law Review

No abstract provided.

Metaphysical Quandary Of Synthetic Media Transparency, Darrell G. Mottley

Vanderbilt Journal of Entertainment & Technology Law

Artificial intelligence (AI) is reshaping our view of reality. The interaction between human creativity and generative AI presents both opportunities and challenges concerning free speech and innovation. AI’s transformative impact on perceptions of innovation complicates discussions surrounding creativity and societal expectations. A human-centric perspective in the debate over government-mandated transparency for AI-generated creative works reveals a notable conflict. This conflict arises from the need to balance the protection of human creativity with an apparent obligation to provide information about the human or nonhuman origins of creative works. As society increasingly relies on AI technologies to produce art, literature, and other …

De Minimis Copying: An Empirical Study, Jessica Silbey, Samantha Zyontz

Faculty Scholarship

In the internet age, the copyright de minimis defense has increased in relevance as copyright lawsuits (and IP generally) are more mainstream and infringement liability more widespread. This Article is the first empirical analysis of copyright de minimis defense cases, collecting and analyzing all such decisions since the mid-19th century. It traces the doctrine’s development over the past century and its evolution in the digital era, when copying has become even more ubiquitous but its triviality remains widely disputed. The Article’s aim is not only to map the de minimis defense to learn more about it doctrinally—asking when is copying …

Dignity And Deepfakes, Michael Goodyear

Articles & Chapters

Today, we face a dangerous technosocial combination: AI-generated deepfakes and the Internet. Believable and accessible, these deepfakes have already spread sex, lies, and false advertisements across the Internet and targeted everyone from Taylor Swift to middle school students. Dissemination of deepfakes inflicts multifarious dignitary harms against their victims—especially women and LGBTQ+ persons—stripping them of control over their own identities, harming their reputations, and ostracizing them from society through shame.

Yet this is not the first time a new technology for capturing one’s likeness and a method for disseminating images threatened individuals’ dignity. In the late nineteenth century, the right of …

Common Law Notice-And-Takedown, Michael Goodyear

Articles & Chapters

Platform liability is a complex landscape under U.S. law. The immunity for users’ torts provided by Section 230 of the Communications Decency Act has understandably garnered the most attention. In addition, many intellectual property law scholars have also examined the requirements of the Digital Millennium Copyright Act (“DMCA”), which provides safe harbors for users’ copyright infringements. The DMCA enumerates a long series of requirements that online platforms must satisfy to be immunized for their users’ infringements, including a notice-and-takedown regime, a repeat infringer policy, and a prohibition on having the right and ability to control and a direct financial benefit. …

Brief For Amici Curiae Brian L. Frye, Jess Miers, And Mateusz Blaszczyk In Support Of Appellant, Bryan L. Frye, Jess Miers, Mateusz Blaszczyk

Scholarly Works

This is an amicus curiae brief filed by Brian L. Frye, Jess Miers, and Mateusz Blaszczyk in support of ROSS Intelligence, Inc., arguing that Thomson Reuters's claim for copyright infringement should be dismissed.

Innovate Responsibly: Post-Grant Mechanisms To Deter Unnecessarily Toxic Pharmaceutical Patents, Brianna De Frank

Chicago-Kent Law Review

No abstract provided.

Losing The Big Picture: An Argument For Preserving Irpa Rights For Emotional Damages, Stephen Luke Winbery

Chicago-Kent Law Review

No abstract provided.

Can The Law Protect My Craft? How Gaps In Copyright Of Knitting Patterns Symbolize A Greater Struggle For Protecting Traditionally Feminine Forms Of Intellectual Property, Kysa Walzer

Seattle University Law Review

The purpose of this article is to demonstrate the application of intel-lectual property rights within the context of copyright protection of knit-ting patterns. The article will discuss the underutilization of copyright pro-tection for knitters and crafters and its larger impact upon craft and indus-try traditionally comprised of women. Part I introduces knitting patterns and a short history of copyright protections. Part II discusses the specific areas within knitting patterns and the knitting community which give rise to legal grey areas for copyright protection. Part III discusses the larger implications of copyright and intellectual property in spaces where women traditionally make …

The Hidden Revolution: How Patent Law Is Shaping Women's Health Tech, Daniel Mendoza

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.

What Copyright Can't Do, Blake E. Reid

Pepperdine Law Review

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law’s powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers. But …

Infringing Information Architectures, Michael Goodyear

Articles & Chapters

Information architectures—systems that facilitate storing and sharing data and content—underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. Since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers and users directly infringe others’ copyrights. Almost fifty years ago, however, a largely unexplored paradigm shift occurred. Copyright owners started to allege that information architecture providers should be broadly secondarily liable for all their users’ infringements. These claims, which this Article terms architectural infringement claims, pose an acute challenge to the …

Brief Of 12 Narcolepsy Patients, Public Interest Organizations, Medical Professionals, And Professors Of Law And Medicine As Amici Curiae In Support Of Defendants-Appellees (Amended To Add Further Signatories), Charles Duan

Amicus Briefs & Court Filings

A prior copy of this brief was filed, inadvertently omitting one signatory. This brief has accordingly been amended to correct the error, reflected in the Certificate as to parties and the Appendix.

Brief Of 76 Scholars Of Law, Business, Economics, And Medicine As Amici Curiae, Charles Duan

Amicus Briefs & Court Filings

No abstract provided.

Motion For Leave To File Brief Of 31 Intellectual Property And Media Law Professors As Amici Curiae In Support Of Appellant And Reversal, Christine Farley

Amicus Briefs & Court Filings

Amici Intellectual Property and Media Law Professors respectfully move for leave to file a brief in support of Appellant in this appeal, pursuant to Federal Rule of Appellate Procedure 29(a)(2) and (a)(3) and 11th Circuit Rule 29-1.1 The proposed brief is being tendered herewith. All parties have received notice of the filing of this motion and proposed brief. Counsel for Appellant has consented to the filing of the proposed brief; counsel for Appellee has advised that Appellee opposes the filing.

Un©Ertainty And Dis©Omfort, Richard Chused

Northwestern Journal of Technology and Intellectual Property

This essay explores creative works that produce powerful reactions of discernment, hostility, or deep uncertainty from mysterious forms of “blankness.” They all use silence or similarly ineffable qualities to challenge the thoughtfulness and tolerance of audience members. They force us to understand that creativity sometimes manifests itself in strange and bizarre ways that test not only our viewing tolerance, but also our traditional notions of creativity and of intellectual property boundary lines. It is like forcing fully sensory-enabled people to think about creativity in ways that may mimic a small fragment of the daily experience of those with limited sight …

Quo Vadis, Fair Use? The Future Of Fair Use After The Warhol Decision, Vicenç Feliú, Josh Lida

Northwestern Journal of Technology and Intellectual Property

This article critically examines the recent Supreme Court decision in Warhol v. Goldsmith and its impact on fair use within the realm of visual art. The paper traces the historical development of fair use from its inception in Folsom v. Marsh in 1841 to its formal integration into the Copyright Act of 1976 and subsequent evolution through landmark Supreme Court rulings.

The article focuses on the Court’s scrutiny of the first factor of the fair use doctrine in Warhol v. Goldsmith, particularly the emphasis on commercial intent in determining fair use. It argues that the Court’s elevation of commercial …

Fame, Fakes, And The First Amendment: A Three-State Analysis Of The Right Of Publicity In Addressing Deepfakes, Alexandra Reilly

William & Mary Bill of Rights Journal

Part I of this Note will set the scene of current concerns with deepfakes by those in media and pending changes in the right of publicity landscape. Part II discusses the standing of the right of publicity in three states. Parts III and IV address the current balancing tests for the First Amendment and intellectual property statutes. Part V examines the pathway for expansion of the right of publicity federally to combat the threat posed by deepfakes and Part VI analyzes the interplay with intellectual property doctrines and the First Amendment.

This abstract has been taken from the author's introduction.

Love And Hate In University Technology Commercialization Proposed Revision To The Bayh-Dole Act, Clovia Hamilton, David Schuman

Hofstra Labor & Employment Law Journal

To a large extent, the university technology transfer (hereinafter the "TTO") success depends on harmonious relationships between technology transfer staff and contributing faculty. While this state is ideal, regretfully, it is not typical. We describe sixty-two legal battles between academic inventors and their universities. We also identify the stressors caused by perceived threats to the TTO staff and faculty researchers, which result in felt job insecurity. We then developed a concept model which depicts these perceived threats and how they contribute to positive functional technology transfer performance or negative dysfunctional performance. We propose that any lack of communication, social exchanges, …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Akron Law Review

This article examines the ongoing negotiations at the World Intellectual Property Organization (WIPO) regarding the protection of genetic resources, traditional knowledge (TK), and traditional cultural expressions (TCEs). It provides a comprehensive overview of the historical background, key provisions, challenges, and reflections on the diplomatic efforts leading to the establishment of the WIPO Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (GRATK Treaty). It explores issues surrounding disclosure obligations, including the lack of a clear definition for "confidential information" and the debate over sanctions and remedies. The article examines the challenges and implications of key provisions in the Basic …