Intellectual Property Law Commons^™

Cardozo Aelj Author Interview Series: Aman K. Gebru, Ivana Petani

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Aman K. Gebru is an Assistant Professor at the University of Houston Law Center, where he teaches courses on contracts and intellectual property law. Professor Gebru’s research examines issues at the intersection of intellectual property law, innovation policy, and knowledge governance from domestic and global perspectives. His recent projects examine how intellectual property laws deal with collectively developed creative expression, such as memes, dance crazes, hackathons, and indigenous (traditional) expression.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on March 14, 2024. The original post can be accessed via the Archived Link button above.

Loyola Patent Program Info Session, Cardozo Intellectual Property Law Society (Ipls), Cardozo Women In Tech Law

2023–2024 Flyers

No abstract provided.

Intellectual Property & Information Law Program Ip+Il Program's Distinguished Speaker Series: Paul Levitz, Cardozo Intellectual Property & Information Law Program

2023–2024 Flyers

No abstract provided.

Cardozo Aelj Author Interview Series: Matthew J. Mitten, Ivana Petani

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Matthew J. Mitten is the Professor of Law and Executive Director of the National Sports Law Institute at Marquette University Law School. Professor Mitten is a leading sports law scholar and has testified before a U.S. Congressional joint subcommittee, the Senate Judiciary Committee, and the Senate Commerce Committee, as well as the Knight Commission on Intercollegiate Athletics, on college sports law issues.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 27, 2024. The original post can be accessed via the Archived Link button above.

Cardozo Aelj’S Spring 2024 Symposium Explores The Implications Of The Warhol And Bad Spaniels Decisions On Copyright And Trademark Law, Cardozo Arts & Entertainment Law Journal

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Thank you to everyone who attended and participated in the Cardozo Arts & Entertainment Law Journal’s spring symposium, “Barking Up the Wrong Tree: An Exploration of Intellectual Property Law Protections Following Bad Spaniels and Andy Warhol.” AELJ is proud to have hosted such a successful event, highlighting a range of thoughtful and engaging scholarship.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on February 25, 2024. The original post can be accessed via the Archived Link button above.

Jack Daniel's And The Unfulfilled Promise Of Trademark Use, Stacey Dogan, Jessica Silbey

Cardozo Arts & Entertainment Law Journal

The article examines the Supreme Court's decision in Jack Daniel's v. VIP Products and its implications for the use of trademarks in artistic and expressive works. The Court's ruling established a "trademark use" doctrine, distinguishing between uses of trademarks as a designation of source for goods and non-trademark, expressive uses. While the decision does not overturn the Rogers v. Grimaldi test, it creates uncertainty in applying Rogers to expressive works, leading to inconsistent lower court decisions and threatening First Amendment protections for creative uses of trademarks.

Improving The Affirmative Disclosure Of Agency Legal Materials, Bernard W. Bell, Cary Coglianese, Michael E. Herz, Margaret B. Kwoka, Orly Lobel

Articles

It is axiomatic that in a democratic society the law must be broadly accessible. Administrative agencies produce a plethora of materials imposing legal obligations on commercial or individual actors in the private sector. Other materials bind the agencies themselves in ways that affect the rights or interests of private parties. Still other materials provide the public with information about how agencies interpret and apply the statutes and rules they administer, or how agencies seek to deploy their discretion or take other actions that can affect private individuals or organizations. This Article focuses on improving the public availability of all of …

The Law Of The New Musical Author, Eyal Brook

Cardozo Arts & Entertainment Law Journal

The process of musical creation has been transformed materially in the Digital Age due to technological developments, both regarding the technologies for making music and regarding novel stylistic developments. New musical practices, based on novel technology, afford entirely new modes of creative authorship. The effects of such shifts have redefined the nature of music and the role of musicians in fundamental ways. This article opens a new debate regarding the identity ofthe new musical author and the changes to the musical creative process.

As such changes have impacted the musical creative process, there are necessary changes required to adapt the …

Dance Like Everyone Is Watching: Why Tiktok Choreography And Copyright Aren't In Sync, Roseanne Planker

Cardozo Arts & Entertainment Law Journal

The note argues that viral dances on platforms like TikTok should not be protected under the U.S. Copyright Act due to their ephemeral nature, social functionality, and the incompatibility of copyright's exclusivity with the viral dissemination process. It advocates for statutory reforms to ensure fair compensation and attribution for creators, proposing that platforms like TikTok be held accountable for these protections, similar to the EU's Copyright Directive. The analysis emphasizes the need for new legal frameworks to address the unique challenges of viral choreography, balancing artistic progress and creator rights.

Tackling The Thicket: A Comparative Analysis Of Biologic Drugs And Biosimilars In The United States And Abroad, Lauren Cutler

Cardozo International & Comparative Law Review

The note examines the legal and regulatory landscape surrounding biologic drugs and biosimilars in the United States and Europe, focusing on patent protections, litigation trends, and the impact of biosimilar competition on drug pricing. It highlights the challenges posed by patent thickets and evergreening strategies employed by brand-name biologic manufacturers, which delay biosimilar market entry and maintain high drug prices. The analysis underscores the differences in regulatory frameworks and market dynamics between the U.S. and Europe, emphasizing the need for policy reforms to enhance competition and affordability in the biologic market.

(In)Dependence Day: Why The Modern Streaming Industry Requires Modern Antitrust Enforcement, Samuel Kahn

Cardozo Arts & Entertainment Law Journal

The note argues that the contemporary streaming industry, dominated by a few major platforms, mirrors the pre-Paramount era's anticompetitive practices, necessitating a reexamination of antitrust laws to address oligopolistic structures, protect independent creators, and ensure consumer access to diverse content. It contends that the repeal of the Paramount Decrees and the failure of current antitrust frameworks to adapt to the streaming industry's unique challenges have allowed media giants to grow unchecked, stifling competition and innovation.

For The Love Of The Game: Examining The Legality Of Unofficial Fan Video Game Remakes, Madeleine Higgs

Cardozo Arts & Entertainment Law Journal

The note explores the legal challenges faced by creators of fan remakes of delisted video games under the Digital Millennium Copyright Act (DMCA) and proposes potential solutions to address these issues. It argues that expanding exemptions for such works and adopting a statutory licensing regime could provide a legal framework that balances the rights of copyright holders with the creative interests of fan creators. The analysis emphasizes the need for reforms to prevent overly broad enforcement of copyright protections and to incentivize fair use considerations.

Can Chatgpt And The Like Be Your Co-Authors?, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

On November 30, 2022, OpenAI released an AI based chatbot called ChatGPT (Generative Pre-trained Transformer). This AI system uses natural language processing (NLP) techniques to generate written text by learning the patterns and structures of natural language. ChatGPT is a versatile chatbot with the ability to write speeches, news articles, and essays either wholly or partially. Some users acknowledge ChatGPT as a co-author of the generated text, while others only acknowledge its use in writing the document. In fact, this issue became so pressing in academia that Springer Nature, the world's largest academic publisher, announced that software like ChatGPT cannot …

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.

Panel 2: Trademark Law, Stacey Dogan, Christine Haight Farley, Jessica Silbey, Rebecca Tushnet, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

Trademark Fair Use Is No Joke, Christine Haight Farley

Cardozo Arts & Entertainment Law Journal

The article critiques the Supreme Court's decision in Jack Daniel's Properties v. VIP Products, arguing that the Court missed an opportunity to clarify the relationship between trademark law and the First Amendment. While the Court acknowledged the importance of protecting parodies, it failed to develop a comprehensive framework for balancing trademark rights with free speech. Instead, it introduced a narrow rule that limits the application of the Rogers test, potentially undermining speech protections in trademark disputes. The article contends that the Court's reliance on the likelihood of confusion test is insufficient to address the broader First Amendment implications of …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Articles

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive, and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …

The Structure Of Secondary Copyright Liability, Felix T. Wu

Articles

Secondary copyright liability and secondary patent liability largely parallel each other. And yet, secondary copyright cases are often quite different from secondary patent cases. Whereas most secondary patent infringers act in a way that targets a particular patent or group of related patents, secondary copyright infringement mostly arises in the context of technologies or services that work across all copyrighted works. Secondary copyright liability raises issues of platform liability in ways that secondary patent liability usually does not.

The current structure and framing of secondary copyright liability inadequately account for this distinction. The result is that secondary copyright liability tends …

In Satan We Trust: The Satanic Temple’S Ongoing Crusade To Protect Abortion Rights, Bradley Koberg

Cardozo Law Review

In the summer of 2022, the Supreme Court overruled the nearly fifty-year-old precedent of Roe v. Wade, eliminating the constitutional right to an abortion. This was one of several decisions in which the newly minted conservative supermajority undermined what could be seen as progressive precedents. At the same time, the Court has been elevating religious liberty claims and strengthening legal protections for religious individuals and organizations (predominantly Christian). For anybody who cares about the “so-called separation of . . . church and state,” this conservative Christian reformation taking place in the nation’s highest court is a cause for concern.

However, …

No Bullying Allowed Here: Adopting A Misuse Doctrine To Defeat Trademark Bullies, Jessica Shechtman

Cardozo Law Review

In order to maintain trademark rights, trademark owners are encouraged to enforce and police their trademarks through civil actions. Enforcing trademark rights is encouraged and incentivized by the Lanham Act because failure to do so may result in harsh consequences for trademark owners. Some of these consequences include weakening of strength or abandonment of the mark, which may result in loss of trademark rights. However, large companies go above and beyond to police and protect their trademarks. At times, this overenforcement is unethical and crosses a fine line between following the law and abusing the law, causing a number of …

The Economics Of Medical Patents And The U.S. Government’S Role In Drug Price Negotiations, Eddie Halwani

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The U.S. government’s recent but unusual push to negotiate drug prices has struck a chord with many Americans, with polls showing a significant, bipartisan majority favoring the action.This action presents an opportunity to appreciate medical patents’ role in spurring innovation forward. Amid changing policies, medical patents shape the accessibility and affordability of care through their impact on drug pricing. Drug prices in the United States are notably high—about 2.4 times those in other developed countries.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via …

Signs Of Life: The Current State Of Generative Content And Copyright Protection, Ryan Bickett

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

With the recent rise in Artificial Intelligence (“AI”) and its broadening use by the public, questions have arisen regarding the applicability of copyright law over both the content it sources and creates. While the answers remain unclear as this technology rapidly updates, there have been recent legal developments which will shape how we deal with this content.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via the Archived Link button above.

I Can’T Believe It’S Not Skittles! Broad Summary Of Advertising And Packaging Regulations For Cannabis Dispensaries In New York State, Lauren Woods

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Newly passed legislation often represents the changing nature of public opinion and societal attitudes. In New York State, for example, the general public’s softening and more accepting view of marijuana consumption was highlighted when the state approved legal marijuana use in a medical setting in 2014. Seven years later, New York State passed the Marihuana Regulation & Taxation Act (“MTRA”) and officially legalized “the possession of adult-use recreational cannabis for all adults over the age twenty-one.” A highlight of the act is how it addresses how the current state of cannabis regulation in the state is suboptimal, and how its …

The Aftermath Of Murphy V. Ncaa: State And Congressional Reactions To Leaving Sports Gambling Regulation To The States, Ethan Mordekhai

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

In 2018, the Supreme Court ruled in Murphy v. NCAA that the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”) violated the anti-commandeering rule and was therefore unconstitutional. PAPSA had effectively barred states from authorizing sports gambling. The act did not make sports gambling a federal crime, however it did allow professional sports organizations to bring civil actions to enjoin violations. Thus, after the New Jersey legislature authorized sports gambling in 2012, the NCAA brought a federal action to enjoin the law on the ground that it violated PAPSA. The case made its way to the Supreme Court, and …

Cardozo Aelj Author Interview Series: Seth Warshaw, Class Of 2023, Seth Warshaw

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Seth Warshaw discusses his Note, And a Second Opinion for All… And Anything Else? The Jack Eichel Saga and Issues of Medical Autonomy, which was published in Volume 41, Issue 1.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 10, 2023. The original post can be accessed via the Archived Link button above.

What Happens When The Public Wants To Remove Public Art? The Second Circuit Weighs In On One Recent Vara Case, Paige Green

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

n 1990, the Visual Artists’ Rights Act (VARA) became a welcome addition to the federal Copyright Act of 1976. VARA was the first time the “moral rights” of an artist were federally protected in the United States. Moral rights are commonly understood to provide attribution to artists and protect the integrity of visual art pieces. Under VARA, this means authors have a right to claim authorship on pieces they create, prevent the use of their name on a work they did not create, and prohibit the destruction of works of “recognized statute” (both intentional and through gross negligence). The law …

Holistic Claim Construction, Lidiya Mishchenko

Cardozo Law Review

Jurisprudence in the area of defining patent scope is opaque and inconsistent. District courts and litigants cannot be certain of the bounds of the exclusive territory covered by a patent—defined by the patent’s claims—until the Court of Appeals for the Federal Circuit—the single patent appellate court in the nation—says what it is in an appeal after final judgement. The appellate court appears to simply redo the analysis of the district courts, yet often inexplicably reaches a different conclusion based on the patent’s text. Though much has been written about the Federal Circuit’s unpredictable, textualist approach to claim construction, no scholarship …

Nerds V. Nintendo: Video Game Decompilations Versus Rights-Holder Interests, Kirk A. Sigmon

Cardozo Law Review

Video game “decompilations”—a potentially technically inaccurate term referring to fan efforts to entirely reprogram video games based on reverse engineering those games—present an interesting case study for evaluating the scope of video game copyrightability, fair use, and public expectations about content availability. Decompilations usually comprise entirely new code and do not comprise any assets of the original video game, suggesting that the decompilations, if viewed as mere code, do not apparently infringe any video game copyrights. That said, decompilations illustrate why copyright protects more than the discrete assets (e.g., art or music) of a video game, as decompilations are generally …