Intellectual Property Law Commons^™

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

The Problem Of Modern Monetization Of Memes: How Copyright Law Can Give Protection To Meme Creators, Mark Marciszewski

Pace Intellectual Property, Sports & Entertainment Law Forum

Some legal questions answered in this article on the horizon for the courts and lawyers is how should courts apply copyright law to popular media made by small scale creators and shared on the internet, otherwise known as "memes."

Part II of this article will focus on validity of potential copyright protection in internet memes. It will start by describing the increased monetization surrounding memes and how this monetization calls for greater interest for meme creators to protect their work. It will then describe the merits of individual copyright interests in internet memes.

Part III of this article will focus …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …

Creative Destruction: Copyright's Fair Use Doctrine And The Moral Right Of Integrity, Cathay Y. N. Smith

Pepperdine Law Review

This Paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor or reputation. Actions that have been found to violate an author’s moral right of integrity include, for instance, altering a mural by painting clothing over nude figures, selling separated panels of a single work of art, and displaying sculptures with holiday ribbons. At the same time, copyright’s fair use doctrine allows follow-on creators to transform original works …

Table Of Contents

Washington Journal of Law, Technology & Arts

No abstract provided.

Harlem Shake Meets The Chevron Two Step: Net Neutrality Following Mozilla V. Fcc, Christopher R. Terry, Scott Memmel

Washington Journal of Law, Technology & Arts

In October 2019, the D.C. Circuit handed down its much-anticipated decision in Mozilla v. FCC, relying heavily on Chevron Deference and the Supreme Court’s 2005 Brand X decision. The per curiam opinion upheld large portions of the FCC’s 2018 Restoring Internet Freedom Order, but also undermined the FCC’s preemption of state law while also remanding issues related to public safety, pole attachments, and the Lifeline Program to the agency, assuring that the legal and policy battles over net neutrality will continue. This Article traces the history of the FCC’s efforts on net neutrality as it has moved in and out …

Masthead

Washington Journal of Law, Technology & Arts

No abstract provided.

U.S.-U.K. Executive Agreement: Case Study Of Incidental Collection Of Data Under The Cloud Act, Eddie B. Kim

Washington Journal of Law, Technology & Arts

In March 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act, also known as the CLOUD Act, in order to expedite the process of cross-border data transfers for the purposes of criminal investigations. The U.S. government entered into its first Executive Agreement, the main tool to achieve the goals of the statute, with the United Kingdom in October 2019. While the CLOUD Act requires the U.S. Attorney General to consider whether the foreign government counterpart has a certain level of robust data privacy laws, the relevant laws of the United Kingdom have generally been questioned numerous times for …

Breaking Up Melodic Monopolies: A New Approach To Originality, Substantial Similarity, And Fair Use For Melodies In Pop Music, Johannes Hoffman

Journal of Law and Policy

Progress in the arts—the fundamental goal of copyright law in the United States—requires a balance between granting creators exclusive rights over their works and allowing others the room to create new works. This is particularly crucial in pop music, where melodies are composed within narrow musical structures out of a limited set of notes. Recent verdicts, however, have shown that courts are becoming more willing to find copyright infringement based on relatively simple melodies in pop music, even where such melodies do not constitute the “hook” or most memorable part of the allegedly infringing work. This Note posits that, in …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental, & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …

Pseudo-Gambling And Whaling: How Loot Boxes Pray On Vulnerable Populations And How To Curtail Future Predatory Behavior, Alexander Mann

Washington Journal of Law, Technology & Arts

The video game industry has blossomed from a niche hobby into a mainstream cultural industry, outpacing global box office sales in annual revenue. Yet the price of a video game has barely increased since the industry’s inception, and the current standard price point of sixty dollars has survived for over a decade. Competitive market forces drive companies to invest ever more time and money into creating increasingly complex software in order to remain on the cutting edge of graphics and design, while simultaneously increasing revenue. Thus, video game developers and publishers have developed a multitude of alternative money- making services …

Enemy Of The People: The Ghost Of The F.C.C. Fairness Doctrine In The Age Of Alternative Facts, Ian Klein

Student Scholarship

The FCC Fairness Doctrine required that all major broadcasting outlets spend equal time covering both sides of all controversial issues of national importance. The Fairness Doctrine remained the standard for decades before it stopped being enforced during the Reagan administration, and was removed from the Federal Register during the Obama administration. Since the Fairness Doctrine’s disappearance, the perception by conservatives and progressives alike has been that major media outlets display overt biases towards one political affiliation or the other. As it becomes harder to determine real news from “fake news,” Americans’ trust in media is at an all-time low. An …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Student Scholarship

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Are College Football Players Being Promised Big Nfl Bucks And Being Shortchanged In The Classroom And On The Field?, Melanie Navarro

UC Law SF Communications and Entertainment Journal

Football is America’s pastime. Over one hundred million people tuned in to watch this year’s Super Bowl. Sundays during football season are spent in front of a television rooting for our favorite teams. Football has been an integral part of American culture for over 120 years. But in recent years, football has lost yardage. Information regarding the causal link between head injuries on the football field and degenerative brain diseases has come to light. Thousands of former National Football League (“NFL”) players took part in a highly publicized class-action lawsuit against the league. Players alleged that the NFL knew of …

Enemy Of The People: The Ghost Of The F.C.C. Fairness Doctrine In The Age Of Alternative Facts, Ian Klein

UC Law SF Communications and Entertainment Journal

The FCC Fairness Doctrine required that all major broadcasting outlets spend equal time covering both sides of all controversial issues of national importance. The Fairness Doctrine remained the standard for decades before it stopped being enforced during the Reagan administration, and was removed from the Federal Register during the Obama administration. Since the Fairness Doctrine’s disappearance, the perception by conservatives and progressives alike has been that major media outlets display overt biases towards one political affiliation or the other. As it becomes harder to determine real news from “fake news,” Americans’ trust in media is at an all-time low. An …

Forum Delegation: The Birth And Transposition Of A New Approach To Public Forum Doctrine, Brett Johnson, Shane C. Epping

UC Law SF Communications and Entertainment Journal

This paper introduces and explores the concept of forum delegation: the power of government officials to suggest which forums to allow speakers to use. The concept is born out of a recent legal battle between the University of Minnesota and conservative speaker Ben Shapiro, in which the UMN required Shapiro to speak in a venue away from the heart of campus due to concerns over the school’s ability to provide adequate security for the event. The paper first analyzes the UMN case to assess the constitutionality of forum delegation in the context of regulating speech and public universities. Next, it …

Corruption And College Sports: A Love Story, Andrea Cristiani Closa

UC Law SF Communications and Entertainment Journal

College sports are a staple of American tradition, bringing in hundreds of millions of viewers each year. Fans from all over the country root for their team’s success and hope they will be the ones to take home the national championship each year. Increasingly, however, college sports have been in the public eye for a very different reason: corruption. The National Collegiate Athletics Association’s (“NCAA”) Amateurism Rule, which prohibits student-athletes from receiving compensation, has contributed to this ongoing corruption. The NCAA insists upon its student-athletes remaining amateurs, even though its own rule is damaging the integrity of college sports. Players, …

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

Pre-Game Strategy For Long-Term Win: Using Trademark Registration And Right Of Publicity To Protect Esports Gamers, John Bat

Catholic University Journal of Law and Technology

The soaring popularity of esports across the globe has turned ultra-talented gamers into a blend of athlete and entertainer. The youthful esports ecosystem is exploding in growth, and the world is taking notice. But are the gamers who are eyeing professional play taking basic legal steps to develop and shield their brands, as well as bolster their collective negotiating leverage with teams, leagues, and miscellaneous entities? This note explores what features of an up-and-coming esports gamer might be worth protecting through a trademark and/or personality-rights schema, which in turn, could assist competitive gamers who are interested in developing their careers …

Should The Ncaa Have To Pay? Long-Term Injuries In College Athletics, Improper Assumptions Of Risk, And Coverage Of Medical Expenses After College, Alexandrea Jacinto

Fordham Intellectual Property, Media and Entertainment Law Journal

Student-athletes spend years training, perfecting their sport, and working hard in school in order to make it to the big leagues: Division I College Athletics. However, when student-athletes finally get there, they are met with empty promises, and often leave with injuries that no one took the time to warn them about. That is because, despite being told that they must sign an agreement with the National Collegiate Athletic Association (“NCAA”) which binds them to the organization’s rules, athletes learn quickly that the other side of that agreement is rarely, if ever, upheld when they need it. Courts fail to …

The Yeezy Boost 350 Copyright Registrations: Did Kanye West Turn Justice Breyer's Fear Into A Reality?, 19 Uic Rev. Intell. Prop. L. 244 (2020), Dorien Clark

UIC Review of Intellectual Property Law

In the world of fashion, few have been able to gain copyright protection for their most ambitious and intricate designs. The useful article prohibition has long haunted designers and has left them with less desirable forms of protection, such as design patent or trade dress protections. Sympathetic to the artistic nature of many useful article designs, courts crafted varying standards to allow copyright protection for artistic aspects separable from the useful article. The Supreme Court articulated a new separability standard in Star Athletica v. Varsity Brands, which introduced a new chapter of copyright protection for useful articles. Although the standard …

Ncaa Down For The Count? New State Legislation Threatens Collegiate Sports As We Know It, 19 Uic Rev. Intell. Prop. L. 346 (2020), Joe Nelson

UIC Review of Intellectual Property Law

Since the 1950s, the NCAA’s amateurism shield has served as a stalwart protector in combatting litigation from athletes and coaches within its purview. They have faced many lawsuits since that time, with the overwhelming majority failing. As this comment shows, complaints have been of a wide variety such as antitrust, employment, and state action litigation. The amateurism principle was their defense in each of those situations. But now, many states have recently begun passing legislation that would allow student athletes to obtain compensation, in more ways than one. These statutes are a shot through the heart of the amateurism principle, …

Music Sampling And The De Minimis Defense: A Copyright Law Standard, 19 Uic Rev. Intell. Prop. L. 310 (2020), Adam Baldwin

UIC Review of Intellectual Property Law

No abstract provided.

So Are Games Coffee Mugs Or What? Games And The Right Of Publicity Revisited, 19 Uic Rev. Intell. Prop. L. 178 (2020), William K. Ford

UIC Review of Intellectual Property Law

In Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), the U.S. Supreme Court held that video games are equivalent to other forms of media for First Amendment purposes. This decision should have put video games in the same category as other forms of non-commercial, expressive speech for purposes of the right of publicity. This article reviews the post-Brown decisions to determine the current place of video games within the caselaw. The result of that review is that games are still in a transitional stage, no longer merchandise as a matter of doctrine, but not yet receiving the same treatment …

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.

Caveat Vendor: A Call To Reform The Scope Of Rights Of Withdrawal For Off-Premises Contracts Under U.S. Consumer Protection Laws With Respect To The Auction Of Art, Sarah Fabian Maramarosy

Fordham Intellectual Property, Media and Entertainment Law Journal

As sales of art at auction become increasingly popular and accessible, an overlooked consumer right may cause sellers of art to get “burned.” At its core, the auction process is intended to establish the price of a difficult-to-value object of art, therefore, the underlying philosophy of an auction is that sales are final. However, cooling-off rules in U.S. off-premises contracts are broad enough that auction house contracts can potentially fall within the ambit of these rules, giving rise to the consumer’s right to cancel the contract.

Arguably, permitting consumers to cancel in remorse undermines the premise of an auction and …