Intellectual Property Law Commons^™

I Do Not Endorse This Message! Does A Political Campaign’S Unauthorized Use Of A Song Infringe On The Rights Of The Musical Performer?, Kimberlianne Podlas

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Cosmopolitanism, Sonia K. Katyal

Faculty Scholarship

The world of global trademarks can be characterized in terms of three major shifts: first, a shift from national to global branding strategies; second, a shift from national and regional systems to harmonized international regimes governing trademark law; and third, a concurrent shift from local to transnational social movements that challenge branding and other corporate practices. The rise of transnational brands brings with it an attendant series of legal shifts in trademark law. Long considered the stepchild of intellectual property law, today, trademark law has morphed into a powerful global legal phenomenon, revealing a foundational shift from national and regional …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Faculty Scholarship

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Critical Legal Studies In Intellectual Property And Information Law Scholarship, (Symposium), Sonia K. Katyal, Peter Goodrich, Rebecca L. Tushnet

Faculty Scholarship

No abstract provided.

Tweet Me Fairly: Finding Attribution Rights Through Fair Use In The Twittersphere, Adam S. Nelson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Future Of Cybertravel: Legal Implications Of The Evasion Of Geolocation, Marketa Trimble

Fordham Intellectual Property, Media and Entertainment Law Journal

Although the Internet is valued by many of its supporters particularly because it both defies and defeats physical borders, these important attributes are now being exposed to attempts by both governments and private entities to impose territorial limits through blocking or permitting access to content by Internet users based on their geographical location — a territorial partitioning of the Internet. One of these attempts, for example, is the recent Stop Online Piracy Act (“SOPA”) proposal in the United States. This article, as opposed to earlier literature on the topic discussing the possible virtues and methods of raising borders in cyberspace, …

State Sovereign Immunity And Intellectual Property Revisited, Michael Landau

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

E-Incitement: A Framework For Regulating The Incitement Of Criminal Flash Mobs, Hannah Steinblatt

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Comparative Advertising In Argentine Law, Pablo Palazzi

Fordham Intellectual Property, Media and Entertainment Law Journal

The author analyzes the evolution of comparative advertising in Argentina under the laws of trademark and unfair competition.

Rethinking “Murderabilia”: How States Can Restrict Some Depictions Of Crime As They Restrict Child Pornography, Joseph C. Mauro

Fordham Intellectual Property, Media and Entertainment Law Journal

Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality. I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” …

Piercing Pennoyer With The Sword Of A Thousand Truths: Jurisdictional Issues In The Virtual World, Andrew Cabasso

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Could Possibly Be Against A Treaty For The Blind?, Aaron Scheinwald

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note presents the history of the problem of VIPs' restricted access to information, a legal-realist analysis of the reasons for and against a WIPO treaty for the blind, and the contours of a best-case solution.

The Myth Of Generic Pharmaceutical Competition Under The Hatch-Waxman Act, Emily Michiko Morris

Fordham Intellectual Property, Media and Entertainment Law Journal

Without a doubt, health care costs are on the rise, and how to reduce those costs is of great concern to many. The Hatch-Waxman Act attempts to reduce pharmaceutical costs by encouraging market entry by lower-priced generic pharmaceuticals and without a doubt has been successful in doing so over the last three decades. The question is, at what price? Although designed to balance greater generic market entry with stronger incentives for brand-name pharmaceutical innovators to continue developing new drugs, the Act appears to have fall short of making those incentives nearly strong enough and, indeed, likely weakens them. Perhaps more …

The Indecency Of Indecency: How Technology Affects The Constitutionality Of Content-Based Broadcast Regulation, Nick Gamse

Fordham Intellectual Property, Media and Entertainment Law Journal

In the thirty-plus years since FCC v. Pacifica Foundation revolutionized content-based broadcast regulation, much has changed. Although broadcast television was recognized as a dangerously pervasive medium in 1978, it is no longer the dominant force that it once was, with the vast majority of Americans now paying for subscription television services like cable or satellite. And while the Pacifica Court strove to support parents in their struggle to protect their children from pervasive inappropriate content by upholding the FCC’s content regulation, technological developments like the V-Chip, cable boxes, DVRs, and satellite boxes have afforded modern parents various self-help alternatives. Many …

Moral Rights Of Composers: The Protection Of Attribution And Integrity Available To Musicians In The European Union And The United States, Tanja Makovec Petrik

Fordham Intellectual Property, Media and Entertainment Law Journal

The purpose of this paper is to illustrate the approaches taken in the European Union and the United States to protect moral rights of musicians, specifically the right of integrity, and to give a sense of a possible future trend in the development of this issue. Currently, the United States protects an author’s right of integrity through other legal frameworks, like contract law or defamation, but does not expressly recognize moral rights. This paper proposes that the United States adopt a middle ground approach, like that taken by the United Kingdom, and provide limited, but explicit, moral rights protection to …

Fear And Loathing In Trademark Enforcement, Jeremy N. Sheff

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Museum Policies And Art Images: Conflicting Objectives And Copyright Overreaching, Kenneth D. Crews

Fordham Intellectual Property, Media and Entertainment Law Journal

Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article …

The Balance Of Power In Patent Law: Moving Towards Effectiveness In Addressing Patent Troll Concerns, Ahmed J. Davis, Karolina Jesien

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Internet Immunity: The Limits Of Contributory Trademark Infringement Against Online Service Providers, Rebecca Dunlevy

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

It's Time For A Good Hard Look In The Mirror: The Corporate Law Example, John A. Barrett, Jr.

Fordham Journal of Corporate & Financial Law

This Article asserts that the move from the industrial age to the

information age represents a fundamental change to our society on

such a widespread basis that the legal order must reexamine the

premises about how our society functions, assessing whether

foundational elements of U.S. Common Law remain valid. This

Article first confronts briefly the continuing acceptance of certain

foundational premises in contract and intellectual property law,

illustrating that such premises are no longer supported by the

realities of modern society. With fundamental change challenging

multiple areas of law in the information age, this problem is worthy

of widespread inquiry …

Bearing Down On Trademark Bullies, Irina D. Manta

Fordham Intellectual Property, Media and Entertainment Law Journal

Trademark bullying has become a persistent problem, with large companies intimidating smaller entities with cease and desist campaigns and achieving anti-competitive results. A number of tactics exist to deal with bullying behavior. One of them is the imposition of judicial sanctions, but the standards in that area are unclear and the defendants often do not have the financial means to engage in litigation at all. Other, extralegal measures such as shaming have shown some success, but also present numerous drawbacks and prove insufficient when used against powerful actors. This symposium contribution proposes a new model that draws on the existing …

Seamaster-Ing The First Sale Doctrine: A Tripartite Framework For Navigating The Applicability Of Section 109(A) To Gray Market Goods, Daniela Alvarado

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectualproperty, Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …

Must Licenses Be Contracts? Consent And Notice In Intellectual Property, Mark R. Patterson

Faculty Scholarship

Intellectual property owners often seek to provide access to their patented or copyrighted works while at the same time imposing restrictions on that access. One example of this approach is “field-of-use” licensing in patent law, which permits licensees to use the patented invention but only in certain ways. Another is open-source licensing in copyright law, where copyright owners typically require licensees that incorporate open-source software in other products to license those other products on an open-source basis as well. Surprisingly, though, the legal requirements for granting restricted access are unclear. The source of the lack of clarity is the ill-defined …

A State Law Approach To Preserving Fair Use In Academic Libraries, David R. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

Every year academic libraries spend millions of dollars to provide their users access to copyrighted works. Much of that money goes not toward purchasing physical copies of books or journals, but toward licensing electronic content from publishers. In those electronic license agreements, the default rules for how users interact with copyrighted content is often altered, and academic library users are deprived of basic rights — especially rights such as fair use — which are granted under federal copyright law. The literature is flush with discussion of the misuse of private contracts to alter the rights granted by Congress in copyright’s …

Smartphone, Dumb Regulations: Mixed Signals In Mobile Privacy, Christian Levis

Fordham Intellectual Property, Media and Entertainment Law Journal

The smartphone has turned a user’s location into valuable information. Users of smart devices can use location-based mobile services to get driving directions, check into social networks, or even see which of their friends are around. But the use of this technology, and the new type of data created by it, raises privacy concerns as to who has access to one's location-based information. Because the only legislation covering this technology, the Electronic Communications Privacy Act, is more than twenty-five years old, courts encounter problems when trying to use it to resolve these privacy issues, often reaching illogical results. This Note …

Celebrity Endorsements In Non-Traditional Advertising: How The Ftc Regulations Fail To Keep Up With The Kardashians, Leah W. Feinman

Fordham Intellectual Property, Media and Entertainment Law Journal

Advertisers have used the rise of reality television, social media, and the public's fascination with celebrities to connect with consumers in new and non-traditional ways. With these new techniques come new concerns over consumer protection. When an advertisement does not look like an advertisement, consumers can easily be misled. In 2009, the FTC implemented a set of Guides which were intended to clarify and interpret the regulations enforced by the FTC, and advise the public on how to conduct affairs regarding sponsorship disclosure, specifically in new media. As the note describes, the Guides are insufficient as applied to non-traditional advertising …

Breaking Through The "Tower Of Babel": A “Right To Be Forgotten" And How Trans-Systemic Thinking Can Help Re-Conceptualize Privacy Harm In The Age Of Analytics, Karen Eltis

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Multi-National Patent Litigation: Management Of Discovery And Settlement Issues And The Role Of The Judiciary, James Pooley, Vicki Huang

Fordham Intellectual Property, Media and Entertainment Law Journal

National patent laws protect intellectual property rights. However, these rights can only be enforced in the country that granted the patent. Therefore, a patent owner must pursue infringement or revocation proceedings in each country where his patent rights are challenged even if the defendant is the same party. Patent owners are forced to pursue duplicative litigation on a nation-by-nation basis,incurring significant costs and draining valuable judicial resources. Duplicative litigation may result in conflicting outcomes, the impact of which can be complex and costly.... This article will focus on Germany, Japan, the United Kingdom, and the United States. First, we will …

A Nation Of One? Community Standards In The Internet Era, Noah Hertz-Bunzl

Fordham Intellectual Property, Media and Entertainment Law Journal

This note examines tensions between the community standards doctrine in First Amendment obscenity law and nationwide prosecutions of internet obscenity. The note focuses on recent cases on the topic, especially in the Supreme Court and the Ninth Circuit Court of Appeals.