Intellectual Property Law Commons^™

Square Dance: Fitting The Square Peg Of Fixation Into The Round Hole Of Choreographic Works, Evie Whiting

Vanderbilt Law Review

If all the arts are brothers, dance is the forgotten stepchild of the family. The "black sheep" of the arts, dance has struggled to find academic and legal recognition on par with its creative counterparts. Throughout the history of U.S. copyright protection, dance has consistently been an afterthought. Although Congress passed the first copyright law in 1790, copyright did not explicitly protect choreographic works until 1976. The 1909 Copyright Act only protected pieces of choreography that could be registered by the author as a type of "dramatic composition." This relegation to a subset-of-a- subset aptly characterizes the ongoing academic and …

Costly Intellectual Property, David Fagundes, Jonathan S. Masur

Vanderbilt Law Review

Patents and copyrights originate from the same constitutional source of law,1 and for this reason they are in some respects similar. Patent and copyright law alike extend to inventors and authors exclusive rights over the fruits of their intellectual labors, enabling owners to extract value from intangible goods that would otherwise not be profitable. Both systems are premised on a utilitarian bargain, allowing inventors and authors to have socially costly monopoly interests in their inventions and works in order to encourage socially beneficial innovative and artistic production. And patents and copyrights both last only for finite periods, in contrast to …

Plugging The Leak In § 1498: Coercing The United States Into Notifying Patent Owners Of Government Use, Steven Rushing

Vanderbilt Journal of Transnational Law

When the United States uses a patent for public, noncommercial purposes, it is required under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to provide notification to the patent owner. However, the United States has never implemented legislation to conform with its obligation and is therefore in violation of TRIPS. This Note argues that by permitting obvious and smaller violations--such as lack of notification--to fester, the United States has left the door open for other members of the World Trade Organization (WTO) to weaken the United States' overall trade policy. Members could likely accomplish this goal by first …

Reconsidering The U.S. Patent System: Lessons From Generics, Molly F.M. Chen

Vanderbilt Journal of Transnational Law

Scholars and pharmaceutical industry representatives consider the United States a worldwide leader in pharmaceutical innovation. However, the recent expansion of the international generics market has threatened the strength of the U.S. pharmaceutical industry. The pressure has led to the U.S. market's overreliance on a patentability standard that blocks generics competition without contributing substantially to the state of the art. This Note contrasts the U.S. nonobviousness standard and patent linkage regime with those of generics giants India and Israel and considers the effects of these policies on the relevant national and international generics industries. This Note proposes that the United States …

Who Owns An Avatar? Copyright, Creativity, And Virtual Worlds, Tyler T. Ochoa

Vanderbilt Journal of Entertainment & Technology Law

Today's massively multi-player online role-playing games (MMORPGs) offer their users the ability to create or customize their own avatars with distinctive visual appearances. This Article contends that users who take advantage of that ability are exercising significant creative choices, such that they should be considered the "authors" and copyright owners of their own avatars. The Copyright Act envisions several types of collaborative authorship, including joint authorship, works made for hire, and collective works. None of these models provides a good fit for user-created avatars, because avatars meet some, but not all, of the elements for each model. Here, the two …

Digital Originality, Edward Lee

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.

The Lessons Of Living Gardens And Jewish Process Theology For Authorship And Moral Rights, Roberta R. Kwall

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the issues of authorship, fixation, and moral rights through the lens of Jewish Process Theology. Jewish Process Theology is an application of Process Thought, which espouses a developmental and fluid perspective with respect to creation and creativity. This discipline offers important insights for how to shape and enforce copyright law. The issue of "change" and authorship is more important now than ever before given how the digital age is revolutionizing the way the world thinks about authorship. By incorrectly maintaining that a living garden is not capable of copyright protection since it is unfixed, changeable, and partially …

Promoting Trademark's Ends And Means Through Online Contributory Liability, E. Jordan Teague

Vanderbilt Journal of Entertainment & Technology Law

Trademark law accomplishes its ultimate end--helping consumers easily find, distinguish between, and trust products and services from different brands--through the means of giving markholders an incentive to develop and cultivate these brands in the first place. While individual trademark laws should serve these ends and means, this is not the case with contributory infringement in the United States as applied to the Internet. First, since the doctrine is based entirely in common law with little case law specifically addressing the online context, contributory infringement gives online service providers (OSPs) little notice as to what types of behaviors could result in …

A Semiotic Analysis: Developing A New Standard For Scent Marks, Erin M. Reimer

Vanderbilt Journal of Entertainment & Technology Law

In recent years, businesses have discovered a new way to capture consumer loyalty: through their noses. Companies have begun to invest heavily in the development of scent marks and innovative digital scent technology that will disseminate signature scents through the Internet and television; however, the standards surrounding scent mark registration and infringement remain hazy due to a lack of precedent and conflicting global legal standards. While US and European courts have determined that scent marks can exist under current laws, the registration requirements and infringement standards remain unclear.

This Note analyzes the four major issues that arise in scent mark …

Infringers Or Innovators? Examining Copyright Liability For Cloud-Based Music Locker Services, Brandon J. Trout

Vanderbilt Journal of Entertainment & Technology Law

Music lockers--Internet sites where users may store a copy of their music for later playback--have revolutionized the way people listen to music, allowing them to take their music with them anywhere in the world. However, rights holders are concerned that these locker services potentially infringe music copyrights when they allow their users to upload and stream music and when they use a space-saving technology called "deduplication." This Note delineates the separate rights guaranteed under the Copyright Act as applicable to music lockers: the right to copy and the right of public performance. The analysis looks at several music locker services …

Intercepting Licensing Rights: Why College Athletes Need A Federal Right Of Publicity, Talor Bearman

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of …

Patents 101: Patentable Subject Matter And Separation Of Powers, Max S. Oppenheimer

Vanderbilt Journal of Entertainment & Technology Law

The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether …

Copyright's Creative Hierarchy In The Performing Arts, Michael W. Carroll

Vanderbilt Journal of Entertainment & Technology Law

Copyright law grants authors certain rights of creative control over their works. This Article argues that these rights of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to …

Eudemonic Intellectual Property: Patents And Related Rights As Engines Of Happiness, Peace, And Sustainability, Estelle Derclaye

Vanderbilt Journal of Entertainment & Technology Law

The predominant justification for most intellectual property rights is the incentive theory or utilitarian rationale. Behind this justification lies the Western idea of progress and its derivatives: liberalism, capitalism, and consumerism. After having shown that the predominant justification for intellectual property rights is the incentive theory, which rests on the idea of progress, this Article traces back the history of the idea and shows its parochialism in both time and space. The Article next shows that the progress ideology rests on assumptions that are either wrong or impossible to prove and therefore propounds that it must be abandoned, or if …

Three Theories Of Copyright In Ratings, James Grimmelmann

Vanderbilt Journal of Entertainment & Technology Law

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright's usual balance between incentives and access becomes indeterminate when ratings …

The Romantic Collective Author, Margaret Chon

Vanderbilt Journal of Entertainment & Technology Law

Although the romantic collective author is a much more elusive creature than its romantic individual counterpart, it can be discerned amidst the proliferation of expression on the Internet. This Article first outlines the ways in which the romantic author effect operates through both its genius and its arbiter prongs within collaborative authorship practices in digital networks. It next turns to scientific collaboration, where this author effect is attenuated, to assess whether scientific authorship practices might contribute to a more realistic and less romantic understanding of expressive authorship practices. A subsequent case study of collaborative digital authorship by Wikipedia contributors uncovers …

Curbing Copyblight, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

This Article identifies and analyzes the growing problem of "copyblight" the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: …

One Work, Three Infringers: Calculating The Correct Number Of Separate Awards Of Statutory Damages In A Copyright Infringement Action, Timothy L. Warnock

Vanderbilt Journal of Entertainment & Technology Law

Columbia Pictures provides the most persuasive analysis of the correct number of separate awards of statutory damages available to a plaintiff. Lime Group recognized that the question was a particularly close one, and the court erred in reaching the opposite result from Columbia Pictures. The Lime Group analysis is based on a fundamentally flawed earlier decision and relies, in the end, on an approach as likely to reward infringers rather than defend the rights of copyright holders: determining whether the potential result in any given case is absurd. Regarding the hypothetical case provided at the beginning of this Essay, Warren …

A Rollicking Band Of Pirates: Licensing The Exclusive Right Of Public Performance In The Theatre Industry, Shane D. Valenzi

Vanderbilt Journal of Entertainment & Technology Law

With ticket prices on Broadway at an all-time high, amateur and regional theatres are the only venues for theatrical productions to which most Americans are exposed. Licensing these performance rights--known as "stock and amateur rights"--is the primary source of income for many playwrights, even for those whose plays flopped at the highest level. However, the licensing houses responsible for facilitating these transactions frequently retain and exercise the ability to issue exclusive performance licenses to certain large regional theatres. This practice limits public access to particular works and restricts playwrights' potential earnings in those works. Though this behavior does not amount …

Trolling For Standards: How Courts And The Administrative State Can Help Deter Patent Holdup And Promote Innovation, Niels J. Melius

Vanderbilt Journal of Entertainment & Technology Law

Antitrust law and patent law share the common goal of improving economic welfare by facilitating competition and innovation. But these legal fields conflict when baseless claims of patent infringement disrupt the competitive process. In its eBay decision, the Supreme Court muddied the precedential waters by promulgating a vague doctrine of injunctive relief in patent infringement cases. In the years since, a split has emerged in the district courts on the question of which entities generally qualify for injunctive relief as an additional remedy to damages. This uncertainty has failed to mitigate an antitrust phenomenon known as "patent holdup," whereby an …

The Null Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

Failure is the basis of much of scientific progress because it plays a key role in knowledge building. In fact, negative results comprise the bulk of knowledge produced in scientific research. This is not a bad thing because failures always produce valuable technical information - whether it be a serendipitous finding, an abundance of unexpected technical data, or simply knowledge that an initial hypothesis was totally wrong. Though some have recognized that the dissemination of negative results has many upsides for science, transforming scientific norms toward disclosure is no easy task. As for patent law, the potentially important role that …