Intellectual Property Law Commons^™

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

The Prison Of Convenience: The Need For National Regulation Of Biometric Technology In Sports Venues, Kirsten Flicker

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, biometric data has crept its way into sports venues. In 2015, Major League Baseball began to use fingerprinting at stadium entrances. More recently, reporters have alerted spectators to the use of facial recognition technology in arenas such as Madison Square Garden. Proponents of these developments insist that the technology conveniences spectators, increases venue security, and enhances the overall spectator experience. Yet these claims fail to take into account the possibility of irremediable data breaches, the inaccuracies in facial recognition technology, and the privacy and unfair and deceptive trade practice concerns this technology raises. Further, there is an …

Fre-Bird: An Evidentiary Tale Of Two Colliding Copyrights, Daniel Abowd

Fordham Intellectual Property, Media and Entertainment Law Journal

Sound recordings are not musical compositions. Sound recordings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evaluating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments?

Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: …

A New Standard For Right Of Publicity Protection For Statistics In The Era Of Daily Fantasy Sports And Legalized Sports Betting - A Critique Of Daniels V. Fanduel And A Revival Of An Economic-Based Rationale To Protect Athletes' Property Rights, Mark Conrad

Cardozo Arts & Entertainment Law Journal

The Indiana Supreme Court's unanimous decision in Daniels v. FanDuel, addressing whether the use of an athlete 's name and statistical information is subject to a right ofpublicity, has the potential to serve as a persuasive precedent-and formidable obstacle-in future sportsrelated legal matters. Specifically, in rejecting the plaintiff's claim, the court ruled that publicly available statistical information used in a daily fantasy sports game is protected speech under a statutory "newsworthy value" exemption found in the state's right of publicity law. The panel also determined that the use of athletes'names and images are protected as well. On the surface, …

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 …

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 …

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.

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

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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 …

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.

Patent Fraud By Design, Mordechay Sorek, Miriam Marcowitz-Bitton, Yotam Kaplan

Cardozo Arts & Entertainment Law Journal

Patent law is supposed to offer property-right protection to inventors in order to promote and incentivize innovation. Yet current patent law doctrine effectively incentivizes patentees to defraud the patent office, allowing them to secure undeserved legal protection. What is worse, once such protection is fraudulently obtained, patentees can use it to stop downstream innovation, harm competitors, and charge supracompetitive prices to consumers. The current patent system generates all of these harms because it offers strong legal protection while failing to impose equally strong sanctions against those who attempt to abuse it. Indeed, the current system rarely sanctions patentees who have …

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 …

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 …

In Memory Of Professor James E. Bond, Janet Ainsworth

Seattle University Law Review

Janet Ainsworth, Professor of Law at Seattle University School of Law: In Memory of Professor James E. Bond.

Monetizing Infringement, Kristelia García

Publications

The deterrence of copyright infringement and the evils of piracy have long been an axiomatic focus of both legislators and scholars. The conventional view is that infringement must be curbed and/or punished in order for copyright to fulfill its purported goals of incentivizing creation and ensuring access to works. This Essay proves this view false by demonstrating that some rightsholders don’t merely tolerate, but actually encourage infringement, both explicitly and implicitly, in a variety of different situations and for one common reason: they benefit from it. Rightsholders’ ability to monetize infringement destabilizes long-held but problematic assumptions about both rightsholder preferences, …

Copyright And Economic Viability: Evidence From The Music Industry, Kristelia García, James Hicks, Justin Mccrary

Publications

Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major content industry—commercial music—using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life—on the order of months, rather than years or decades—but also see evidence that subscription streaming services are extending …

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 …

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.

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.

Copyrighting Experiences: How Copyright Law Applies To Virtual Reality Programs, Alexis Dunne

The Journal of Business, Entrepreneurship & the Law

This note will attempt to shed light on the question of what kind of protection copyright law affords VR experiences. Part II discusses the nature of VR experiences and their implementation through specifically tailored VR technology. Part III provides an overview of copyright protection, its limitations, and specifically the history of the copyrightability of computer programs. Parts IV and V outline case law relevant to the discussion of the copyrightability of different types of VR experiences and how that case law similarly or dissimilarly apply to the protection of VR experiences. Part IV focuses on protecting VR experiences as a …

Dazed And Confused: Copyright Limitation, Elizabeth Sawyer

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Who Cares About The Modern Creator?, Jacqueline Malzone

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.

Lawful Neutral: The Justice System And Dungeons And Dragons, Laura Lea Williams

Cardozo Journal of Equal Rights & Social Justice

The note argues that the ban on Dungeons & Dragons (D&D) in prisons is rooted in outdated misconceptions and fails to recognize the game's potential as a rehabilitative tool. It critiques the judicial system's reliance on the Turner test, which has been used to uphold such bans, and advocates for a more nuanced approach that considers the game's benefits in fostering communication, empathy, and problem-solving skills among inmates.

Net Neutrality And The European Union’S Copyright Directive For The Digital Single Market, Nathan Guzé

Loyola of Los Angeles International and Comparative Law Review

The European Union’s Copyright Directive for the Digital Single Market should cause concern for net neutrality advocates. This article casts a critical gaze at Article 17 (previously Article 13) of this new Directive. It chronicles the Directive’s life: starting as a reaction to the perceived inadequate copyright protections provided by the previous Information Society Copyright Directive through to its then-present status circa May 2019. Next, net neutrality is defined, and its benefits and detriments are weighed to ultimately determine the policy is desirable. Article 17’s call for eliminating safe-harbor provisions for content hosts and its call for content filters signal …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Commodity Futures Trading Com'n V. Mcdonnell 287 F.Supp.3d 213 (E.D.N.Y. 2018), Zach Johnston

DePaul Journal of Art, Technology & Intellectual Property Law

No abstract provided.