Intellectual Property Law Commons^™

Ai-Generated Fashion Designs: Who Or What Owns The Goods?, Caen A. Dennis

Fordham Intellectual Property, Media and Entertainment Law Journal

As artificial intelligence (“AI”) becomes an increasingly prevalent tool in a plethora of industries in today’s society, analyzing the potential legal implications attached to AI-generated works is becoming more popular. One of the industries impacted by AI is fashion. AI tools and devices are currently being used in the fashion industry to create fashion models, fabric designs, and clothing. An AI device’s ability to generate fashion designs raises the question of who will own the copyrights of the fashion designs. Will it be the fashion designer who hires or contracts with the AI device programmer? Will it be the programmer? …

Substantial Similarity And Junk Science: Reconstructing The Test Of Copyright Infringement, Robert F. Helfing

Fordham Intellectual Property, Media and Entertainment Law Journal

As the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.

Tear Down This Wall?: The Destruction Of Sanctioned Street Art Under U.S. And Italian Law, Sara Rosano, Birgit Kurtz

Fordham Intellectual Property, Media and Entertainment Law Journal

The United States and Italy are important countries for art and artists, including “street art”—also known as “aerosol art.” How does the law treat street artists in the two countries? Specifically, what are the legal consequences if an artist creates aerosol art on a wall or building with the property owner’s permission, and the property owner tears down the wall or building, thus destroying the artwork? In the United States, the 2018 decision in the 5Pointz case provided a detailed analysis of the applicable law; the court found in favor of a group of aerosol artists against the property owner. …

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 …

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 …

The All Substantial Rights Doctrine: A Second Look, Mark J. Abate, James Breen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Vigilance In The Twenty-First Century: An Update, Peter S. Sloane

Fordham Intellectual Property, Media and Entertainment Law Journal

The trademark laws impose a duty upon brand owners to be vigilant in policing their marks, lest they be subject to the defense of laches, a reduced scope of protection, or even death by genericide. Before the millennium, it was relatively manageable for brand owners to police the retail marketplace for infringements and counterfeits. The Internet changed everything.

In ways unforeseen, the Internet has unleashed a tremendously damaging cataclysm upon brands—online counterfeiting. It has created a virtual pipeline directly from factories in China to the American consumer shopping from home or work. The very online platforms that make Internet shopping …

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: …

Protectable “Art”: Urinals, Bananas, And Shredders, Richard H. Chused

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative souls have long played with our imaginations, as well as our tastes, about what art may be. The resulting absurdist, dada, and everyday object art forces us to step back and ask a few intellectual property questions about what this art has done, undone, or reconstructed in the copyright world. The Copyright Act grants protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This Article explores how pranksterism, eccentricity, …

Intellectual Property Law And The Right To Repair, Leah Chan Grinvald, Ofer Tur-Sinai

Fordham Law Review

This Article posits that intellectual property law should accommodate consumers’ right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right …

Makeup Or Fakeup?: The Need To Regulate Counterfeit Cosmetics Through Improved Chinese Intellectual Property Enforcement, Jennifer Lei

Fordham Law Review

This Note examines whether new developments in intellectual property enforcement are able to fix the notorious counterfeiting issue in China, particularly with counterfeit cosmetics. Counterfeit cosmetics are a threat to public safety in the United States and globally, especially as the cosmetics industry continues to expand. There are two opposing views on whether China’s intellectual property regime—in light of the 2017 to 2019 developments—is able to address the issue. This Note proposes that even with recent developments, current laws and enforcement methods do not reduce counterfeit production. Instead, this Note argues that the Chinese government should use educational campaigns to …

1d Plenary Session. Views From Judicial Decision Makers, Hugh C. Hansen, Annabelle Bennett, Tobias Bremi, Edger F. Brinkman, Klaus Grabinski, Lennie Hoffmann, Simon Holzer, Gordon Humphreys, Robin Jacob, Rian Kalden, Pierre Leval, Maria Eugénia Martins De Nazaré Ribeiro, Paul Michel, Yoshiaki Shibata, Hans Van Walderveen

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

5a Patent Law Session. Biologics & Biosimilars, John Lee, Brian D. Coggio, Cordula Schumacher, Nicola Dagg, Shimako Kato, Ron Vogel, Roberto Rodrigues

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

5b Patent Law Session. Patent Potpourri, Adam Mossoff, Tobias Hahn, Aloys Hüttermann, Myles Jelf, Heinz Goddar, Suzanne Michel, Justin Watts, Ken Adamo, Shlomo Cohen

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

6a Competition And Copyright Law Session. Frand, Andrew Bowler, Ari Laakkonen, Marc Sandy Block, Renata B. Hesse, Jill (Yijun) Ge, Wolrad Prinz Zu Waldeck Und Pyrmont, Dina Kallay, David Por, Steven Geiszler

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

6b Competition And Copyright Law Session. International Copyright, Michael S. Shapiro, Mihály Ficsor, Jerker Rydén, Joel Smith, Yoshiaki Shibata, Silke Von Lewinski, Ted Shapiro, Marcus Von Welser

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

7a Enforcement And Multilateral Law Session. Copyright And Trademark Enforcement, Ann Bartow, Paul Maier, Raymond J. Dowd, Susan Scafidi, Gareth Dickson, Richard Pfohl, Fiona Phillips, Mary W.S. Wong

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

7b Enforcement And Multilateral Law Session. Multilateral Developments, Stevan Mitchell, Annabelle Bennett, Shira Perlmutter, James Love, Antony Taubman, Chomwan Weeraworawit, Evelyn Montellano, Irene Calboli

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

8a Competition And Patent Law Session. Competition, Daryl Lim, Thomas F. Cotter, Eleanor M. Fox, Milan Kristof, Suzanne Munck, Maureen K. Ohlhausen, Thomas D. Pease

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

8b Competition And Patent Law Session. Supplementary Protection Certificates, Oliver Jan Jüngst, Marleen H. J. Van Den Horst, Laëtitia Bénard, Brian W. Gray, Hans Van Walderveen, Tom Mitcheson

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

8c Competition And Patent Law Session. U.S. Patent Developments, Martin J. Adelman, John Richards, Kevin B. Collins, Tryn T. Stimart, Nicholas P. Groombridge, Joshua D. Sarnoff, Matthew W. Siegal

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

9a Copyright Law Session. U.S. Copyright Developments, David Carson, Nicholas Bartelt, Joshua L. Simmons, Ralph Oman, Steven Tepp, Ann Bartow, Joseph C. Gratz

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

9b Copyright Law Session. Music Modernization Act, Casey Chisick, Justin Hughes, Sean M. O'Connor, Richard H. Reimer, Kenneth L. Steinthal, Frank P. Scibilia

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

9c Copyright Law Session. Fair Use, N. Cameron Russell, Pierre N. Leval, Jane Ginsburg, Terry Hart, Silke Von Lewinski, John M. Golden

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

10a Trademark Law Session. Iconic Brands: Creating Trademark Law For The Few, Magdalena Berger, Anderson Duff, Tobias Timmann, Peter Ruess, Emily M. Borich, Daan G. Erikson

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

10b Trademark Law Session. Eu Trademark Law Update, Sven Schonhofen, James Nurton, Gordon Humphreys, Maria Eugénia Martins De Nazaré Ribeiro, Edger F. Brinkman, Joel Smith, Peter Ruess

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

10c Trademark Law Session. U.S. Trademark Law Update, Marshall Leaffer, Marshall Leaffer, Jeffrey A. Handelman, Magdalena Berger, Carey R. Ramos, Christian W. Liedtke, Ron Lazebnik

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

Sunrise Seminar I. Alternative Dispute Resolution, Richard Price, Richard Price, James Moore Bollinger, Garrett E. Brown Jr., Simon Holzer, Maximilian Haedicke, Gordon Humphreys

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.

Sunrise Seminar Ii. Live Streaming Piracy, Michele Woods, Marie Sellier, Michael J. Mellis, He Jing, Trevor Cook, Fiona Phillips

27th Annual Intellectual Property Law & Policy Conference (2019)

No abstract provided.