Entertainment, Arts, and Sports Law Commons^™

Breaking With Convention: The Conceptual Failings Of Scènes À Faire, Robert Kirk Walker

Cardozo Arts & Entertainment Law Journal

According to the scenes a faire doctrine, the standard or stock elements in an expressive work cannot, by themselves, support a copyright infringement claim. Like the idea/expression dichotomy and the merger doctrine, scenes a faire is intended to limit the scope of what authors may claim as their exclusive property and, in doing so, to promote the continued health of the public domain. Just as you can't hold copyright in an idea, you also can't copyright a standard dramatic convention or literary device. However unlike its doctrinal siblings, scenes a faire has received little attention from legal scholars, and courts …

Tonal Concept And Feel, Joseph P. Fishman

Cardozo Arts & Entertainment Law Journal

The article challenges the notion that the "total concept and feel" test is a primary driver of expanding copyright liability in music infringement cases. It argues that while this test is often criticized for its subjectivity, it is not the main culprit behind the perceived expansion of copyright protection. Instead, the complexity of expert analysis and the increasing number of musical elements considered in infringement claims—such as harmony, rhythm, and timbre—play a more significant role in shaping outcomes. The author contends that the test is less problematic than often portrayed and that efforts to reform copyright doctrine should focus on …

Transforming “Total Concept And Feel”; Dialogic Creativity And Copyright’S Substantial Similarity Doctrine, Carys J. Craig

Cardozo Arts & Entertainment Law Journal

Copyright infringement doctrine currently overprotects copyright owners against the perceived wrong of copying, failing to adequately countenance copying as an essential part of the authorial creative process. Drawing on existing infringement doctrine in the United States and Canada, this Article will offer an interpretation of "substantial similarity" that opens up (or at least better safeguards) space for creative copying that is to say, copying that substantially transforms the original copied work and, in doing so, advances the public interest goals of the copyright system. Part I lays the groundwork by briefly presenting a dialogic vision of authorship that complicates conventional …

Copyright Issues With The "Black Hole" Image And Their Legal Implications, Yahong Li

Cardozo Arts & Entertainment Law Journal

The release of the world'sfirst-ever black hole image generated an immediate copyright dispute and revealed multiple copyright issues that remain unsettled This Article argues that the black hole image should be left in the public domain without copyright protection for the following reasons: First, the image 's copyrightability and copyright ownership are too uncertain to warrant legal protection, making fair use and compulsory licensing largely irrelevant; second, the image is a work of worldwide significance that was created through broad international collaboration with substantial public funding, which strongly implies a public interest in access to the work; and third, a …

Patenting Fast And Slow: Examiner And Applicant Use Of Prior Art, Shine Sean Tu

Cardozo Arts & Entertainment Law Journal

Previous studies have shown that an applicant's ability to obtain a patent is inexorably linked to the random assignment of a patent examiner.1 However, not all patent examiners are created equal. Some patent examiners allow patent applications quickly within just one or two Office Actions, resulting in only a few months of substantive patent prosecution. In contrast, other patent examiners constantly reject patents applications, which can result in unnecessarily delaying prosecution and years of substantive patent prosecution. This study focuses on how different examiners use prior art rejections to prolong or compact prosecution.

Prior art rejections are one of the …

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 38, Iss. 3

Cardozo Arts & Entertainment Law Journal

No abstract provided.

These Violent Delights Have Violent Ends: When Livestreaming Turns Deadly, Who Takes Responsibility?, Joseph Palumbo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Puff, Puff, Patent: Identifying And Addressing The Tensions Between The Medical Marijuana Industry, Patent Law, And The Controlled Substances Act, Dustin Boone

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why Can't We All Just Cher?: Drag Celebrity Impersonators Versus An Ever-Expanding Right Of Publicity, Emily Hoenig

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Legal Graffiti And Copyright: How The Law Falls Short In Protecting This Important Artform, Kayla Epstein

Cardozo Arts & Entertainment Law Journal

The note argues that copyright law inadequately protects legal graffiti artists, particularly due to the abstract and public nature of their work, which complicates infringement claims. It critiques the current legal framework, including the tests for substantial similarity and the idea-expression dichotomy, for disadvantaging graffiti artists. The analysis highlights the need for legal reforms, such as the use of expert witnesses and enhanced protections under the DMCA, to better safeguard graffiti art and align copyright law with its purpose of incentivizing creativity.

Siri, Define "Article Of Manufacture": Redesigning The Definition Of "Article Of Manufacture" In Section 289 Of The Patent Act, Samantha M. Wald

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Unpacking Trump's Brand Value: The Cost To Secured Creditors, Xuan-Thao Nguyen

Cardozo Arts & Entertainment Law Journal

No abstract provided.

E-Regulation, Sharon Yadin

Cardozo Arts & Entertainment Law Journal

The new face of the regulatory state is digital. In this era of e-regulation, administrative agencies use social media, web platforms, and mobile applications for regulatory purposes. New forms of online communication now allow regulators to harness public opinion as an enforcement mechanism in such diverse areas as product safety, environmental protection, workplace injury prevention, customer satisfaction in financial services, child safety, restaurant sanitation, and healthcare quality. The use of internet-based naming-and-shaming and data-sharing practices-through tweets, online posts, rankings, scores, star ratings, and other methods-serves to enforce compliance and promote corporate social responsibility. E-regulation constitutes a paradigm shift in government …

Governing The Patent Commons, Dirk Auer, Julian Morris

Cardozo Arts & Entertainment Law Journal

Thousands of patents underpin the technologies that power the digital economy. Coordination among firms developing and implementing these novel technologies has notably been facilitated in large part by Standards Developing Organizations (SDOs). Despite the evident benefits of standardization in general and SDOs in particular, certain aspects of these processes have come under severe scrutiny from scholars, antitrust authorities, and courts. These critics argue that the standardization space suffers from two crippling market failures, namely "patent holdup" and "royalty stacking." They thus conclude that opportunistic firms will squeeze their rivals 'profits, harming consumers and stifling innovation in the process. However, recent …

Scrolling, Trolling, And Uploading: Youtube's Impact On Modern Public Discourse, Internet Regulation, And Free Speech, Brett Gossett

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Copyright Infringement Standards As They Relate To Appropriation Artists, Kimberly Pallen

Cardozo Arts & Entertainment Law Journal

The article examines the application of the "total concept and feel" test established in Roth Greeting Cards v. United Card Co. to determine copyright infringement, particularly in cases involving appropriation artists like Jeff Koons and Richard Prince. It argues that while this test is effective for analyzing substantial similarity in visual arts, it faces limitations when applied to appropriation art, where the original work's mood or feel is not significantly altered. The article highlights the subjective nature of the test and its reliance on visual comparison, which may not adequately address the transformative aspects of appropriation art.

One Consumer’S Trash Is Another’S Treasure: Upcycling’S Place In Trademark Law, Jolie Brett Schenerman

Cardozo Arts & Entertainment Law Journal

The note argues that upcycling, the process of creating new, high-value products from salvaged materials, should be protected under trademark law's fair use doctrine. It contends that upcycling, unlike traditional infringement, does not confuse consumers about the source of goods and instead creates transformative works that benefit both sustainability and brand relevance. The analysis draws parallels between upcycling and parody, advocating for similar legal protections, and highlights the evolving relationship between luxury brands and upcyclers, from litigation to collaboration.

A Dangerous Inheritance: A Child’S Digital Identity, Kate Hamming

Seattle University Law Review

This Comment begins with one family’s story of its experience with social media that many others can relate to in today’s ever-growing world of technology and the Internet. Technology has made it possible for a person’s online presence to grow exponentially through continuous sharing by other Internet users. This ability to communicate and share information amongst family, friends, and strangers all over the world, while beneficial in some regard, comes with its privacy downfalls. The risks to privacy are elevated when children’s information is being revealed, which often stems from a child’s own parents conduct online. Parents all over the …

Thin Separability: An Answer To Star Athletica, Angelo Marchesini

Seattle University Law Review

Courts have consistently struggled to adopt a test that appropriately interprets the Copyright Act’s language protecting works of art incorporated into useful articles. The analysis that allows protections of these works of art is called “separability,” and it has been an ambiguous area of copyright law since its inception. In essence, this analysis gives copyright protection to a work of art incorporated into a useful article as long as the work of art is “separate” from the utilitarian aspects of the useful article. The Supreme Court was positioned to end the uncertainty surrounding the separability analysis in its recent decision, …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Porn Wars: Serious Value, Social Harm, And The Burdens Of Modern Obscenity Doctrine, P. Brooks Fuller, Kyla P. Garrett Wagner, Farnosh Mazandarani

American University Journal of Gender, Social Policy & the Law

During the 1980s, anti-pornography ideologues—an unlikely alliance of feminist activists and right-wing evangelical Christians—waged an open war against pornography and the anti-censorship feminists who supported legal protection for pornographic works. Following a pivotal defeat of an anti-pornography ordinance in federal court, the ideologies constituted in the so-called “Porn Wars” continued to guide obscenity doctrine. These ideologies have informed lower courts’ understanding of the harms and values associated with sexually explicit content more than constitutional scholars recognize, at least explicitly. Although courts recognize core feminist values such as sexual autonomy and privacy in sexually explicit content, they have built doctrine that …

The Kids Are Alright? The Need For Kidfluencer Protections, Ana Saragoza

American University Journal of Gender, Social Policy & the Law

Introduction

“Maybe guys have your hand on the toy but remember the camera. Leah, I can’t see your face babe, we gotta [sic] see it a little bit.” Nine-year-old identical twins Leah and Ava Clements are comparatively new to influencing, having started at the age of seven. Now at age nine, the twins have over one million followers on Instagram. The twins can earn upwards of ten thousand dollars per sponsored post. The Instagram influencer marketing business is estimated to be valued between five and ten billion dollars. Just as successful are minors who secure equally lucrative sponsorships for product …

Against Progress: Interventions About Equality In Supreme Court Cases About Copyright Law, Jessica Silbey

Faculty Scholarship

This symposium essay is adapted from my forthcoming book Against Progress: Intellectual Property and Fundamental Values in the Internet Age (Stanford University Press 2021 forthcoming). The book’s primary argument is that, with the rise of digital technology and the ubiquity of the internet, intellectual property law is becoming a mainstream part of law and culture. This mainstreaming of IP has particular effects, one of which is the surfacing of on-going debates about “progress of science and the useful arts,” which is the constitutional purpose of intellectual property rights.

In brief, Against Progress describes how in the 20th century intellectual property …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Kicking The Law: The Effects Of Fifa Regulations On A World Cup Host Country’S Legislative Process In Regards To Intellectual Property Protection, Nicole-Amanda Brandofino

Brooklyn Journal of International Law

Brand protection is highly sought after by large organizations that seek to monetize valuable intellectual property. At the international level, treaties such as the TRIPS Agreement allow for protection amongst signatory nations. As a leader in the international sports field, FIFA has capitalized on its well-known brand throughout the world through the selling of merchandise and licensing to influential third parties. With the occurrence of the World Cup every four years, FIFA strives to uphold the high revenue it earns through its wide intellectual property portfolio. As the World Cup host country prepares for the tournament, it must abide by …

Discounts For Fractional Ownership Of Real Property Are Accepted, So Why Haven’T The Irs And Courts Accepted Discounts For Fractional Ownership Of Artwork?, Maren N. Eisenmesser

Brooklyn Journal of Corporate, Financial & Commercial Law

In 2014, the Fifth Circuit held that Mr. Elkins’s estate was entitled to apply a fractional ownership discount to determine the taxable value of the undivided interest in artwork. The estate received a $14 million refund plus interest. The Internal Revenue Code directs taxpayers to value the items in a gross estate at their fair market value. Fractional ownership adds another problem in the valuation of an estate’s interest property. In general, courts have accepted fractional ownership discounts for real property. In contrast, courts have been reluctant to apply a fractional ownership discount for artwork. This Note will argue that …

Michael Vick, Robert Byrd, And The Case For Redemption, Vinay Harpalani

Faculty Scholarship

At the 2020 Pro Bowl, former NFL quarterback Michael Vick will be honored as one of the legends captains. Vick’s selection has sparked controversy, because in 2007, he was convicted of operating a dog fighting ring. Vick has served his prison sentence, and beyond that, he has sought redemption. We should extend forgiveness and let the NFL honor Michael Vick.

Copyright’S Facelift: An Analysis Of The New Look Of Copyright Following The Music Modernization Act And The United States-Mexico-Canada Agreement, Octavious A. Buiey Jr.

University of Miami Inter-American Law Review

No abstract provided.

Attempts Towards A Zero-Sum Game: A Recurring Imbalance Between Individual Privacy And The Fourth Amendment, Christopher Netniss

Loyola of Los Angeles Entertainment Law Review

The digital era we live in today allows society to work, shop, socialize, and even monitor one’s health without having to leave the confines of one’s home. In a recent landmark privacy case, Carpenter v. United States, the individual privacy implications of the Fourth Amendment were strengthened when the Supreme Court held that the government must generally obtain a warrant before collecting more than six days of historical cell-site location information from a third-party service provider, like Verizon. Cell-site location information could implicate numerous Fourth Amendment concepts, such as the third-party doctrine, mosaic theory, and public exposure doctrine. Refusing to …

Actual Harm Means It Is Too Late: How Rosenbach V. Six Flags Demonstrates Effective Biometric Information Privacy Law, Chloe Stepney

Loyola of Los Angeles Entertainment Law Review

Technology is rapidly advancing, and the law is trying to keep up. While this challenge is not new, technological advancements are impacting privacy rights in unprecedented ways. Using a fingerprint to clock in at work or face identification to unlock a smartphone provides ease and convenience, but at what cost?

Currently, there is no federal law that regulates the collection, use, and storage of biometric information in the private sector. On a local level, three states have enacted laws that specifically address biometrics. Of those, the Biometric Information Privacy Act (BIPA) in Illinois provides the strongest protections for consumers, who …