Intellectual Property Law Commons^™

From Player Piano To Generative Ai: Artificial Expression And The Law Of Copyright, Douglas Lind, Adrienne Holz

Fordham Intellectual Property, Media and Entertainment Law Journal

American copyright law has experienced challenges and sometimes faltered when confronting mechanical reproduction. This Article retraces the rise and diffusion of the player piano and the phonograph, examining how they reshaped the making and listening to music. As these technologies spread throughout American society more rapidly than copyright law could adjust, courts misclassified piano rolls and records as merely mechanics. Reducing these new fixations to machinery rather than embodiments of human expression left recorded human musical performances inadequately protected, which facilitated piracy. Applying these lessons, this Article contends that generative AI training implicates copyright law in ways not dissimilar to …

From Player Piano To Generative Ai: Artificial Expression And The Law Of Copyright, Douglas Lind, Adrienne Holz

Fordham Intellectual Property, Media and Entertainment Law Journal

American copyright law has experienced challenges and sometimes faltered when confronting mechanical reproduction. This Article retraces the rise and diffusion of the player piano and the phonograph, examining how they reshaped the making and listening to music. As these technologies spread throughout American society more rapidly than copyright law could adjust, courts misclassified piano rolls and records as merely mechanics. Reducing these new fixations to machinery rather than embodiments of human expression left recorded human musical performances inadequately protected, which facilitated piracy. Applying these lessons, this Article contends that generative AI training implicates copyright law in ways not dissimilar to …

The Invisible String: How Litigation Funders In Patent Suits Pose A National Security Risk, Cosette Mclaughlin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note will address why the Supreme Court should modify Rule 7.1 of the Federal Rules of Civil Procedure to require third-party litigation funding (TPLF) funders and agreements to be disclosed to the judge and the opposing party. This amendment would mitigate the national security risk posed by foreign adversaries acting through TPLF in patent suits by eliminating the veil of secrecy. The semiconductor industry acts as an illustration of the benefits of this modification.19 In addition, if TPLF funding were required to be disclosed to all involved, conflict identification would become significantly easier. Full transparency in patent litigation TPLF …

Doctrine, Data, And The Death Of Dupont, Thomas A. Reichert

Fordham Intellectual Property, Media and Entertainment Law Journal

For fifty years, trademark opinions have claimed to apply a comprehensive thirteen-factor test for trademark confusion. They are deeply mistaken. Using AI-powered analysis of over 4,000 TTAB inter partes decisions (2000–2025), this Article proves what practitioners have long suspected: in Section 2(d) adjudication, the test has collapsed to just two factors.

A simple categorical rule predicting confusion if and only if both mark similarity (Factor 1) and goods/services relatedness (Factor 2) (hereinafter “F1” and “F2” in figures, tables, and formulas) favor confusion achieves 99.55% accuracy across 4,651 comparisons. Cross-validated logistic regression confirms the pattern: a two-factor model achieves 99.46% accuracy, …

Discrimination In The Trademark Id Manual, Rachael Dickson

Fordham Intellectual Property, Media and Entertainment Law Journal

Using evidence drawn from the USPTO’s treatment of 221 identifications submitted for inclusion in the Trademark ID Manual (including 43 this Author submitted on their own and as part of a team), this Article, the first ever written on the ID Manual, argues that the USPTO’s administration of the Manual systematically disadvantages trademark applicants offering lawful but socially disfavored goods or services, such as those relating to cannabis, sexual health, or “vice.”

By deliberately refusing to include identifications of goods and services relating to entire categories of commerce in the ID Manual, the USPTO imposes higher costs, greater uncertainty, and …

Music Is Medicine: Addressing Legal Challenges In An Emerging Clinical Practice, Basha Goldwater

Fordham Intellectual Property, Media and Entertainment Law Journal

Music is universally experienced, and most will recognize its profound personal impact; yet, music’s broader influence on society is yet to be fully explored. People may listen to music when they are sad, when they are seeking motivation, or as a way to relax. However, music extends beyond expression, entertainment, and an outlet for emotions. Research indicates that music can offer substantial benefits to patients in a plethora of medical situations.

Part I of this Note will explain the usefulness of music as medical care, its advantages, and the broad range of institutional support music-based medicine has garnered. Part II …

Sweat And Subjectivity Copyright Impulses, Danny Friedmann

Fordham Intellectual Property, Media and Entertainment Law Journal

Generative artificial intelligence (gAI) is generating vast vol- umes of content, including visual art with minimal human effort that competes directly with visual artists and threatens to dilute human culture in the process. In response, courts and copyright offices are quietly reintroducing two doctrines long considered incompatible with modern copyright: sweat of the brow, which rewards labor over originality, and aesthetic discrimination, which risks conditioning protection on perceived merit.

This article is the first to demonstrate how legal authorities are reintroducing these discredited doctrines under the guise of regulating AI-assisted outputs, thereby eroding the set of copyright doctrines accepted by …

Where Did All The Genericide Cases Go? And Should They Be Gone For Good?, Daniela Camacho

Fordham Intellectual Property, Media and Entertainment Law Journal

Trademarks are all around us. It would be difficult to go an entire day without encountering a trademark—In fact, three-fourths of the words we use in our day-to-day conversations have been claimed as trademarks by various companies for various products. Often, we don’t even recognize all the marks we come across as trademarks. Words such as “aspirin,” “escalator,” and “trampoline” were all once trademarks. Over time, these words began to signify the product more than the producer; Because the marks could no longer identify the product’s source as trademarks are supposed to, the marks suffered “genericide” and were cancelled.

In …

Human Liability In Semi-Autonomous Vehicles, Omri Rachum-Twaig, Gadi Perl

Fordham Intellectual Property, Media and Entertainment Law Journal

The promise of fully autonomous vehicles has faced repeated delays, with widespread availability now projected to be limited to specific routes or geographic areas in the near future. Instead, conditional or semi-autonomous systems (SAE Level 3) are being introduced, where the vehicle can drive autonomously under limited conditions but still requires a human driver to take control when necessary. This paper examines the regulatory and liability challenges posed by these semi-autonomous vehicles. Existing laws have gaps in addressing the ambiguous responsibility of the human driver in the shared control environment of Level 3 autonomy. Factors like fatigue, lack of …

“Fly Me To The Moon . . . & Back”: The Intricate Interplay Between Copyright Law And Space Law, Marco Franzoso

Fordham Intellectual Property, Media and Entertainment Law Journal

This research focuses on the intricate interplay between two branches of law: copyright and space law. Through various scenarios, some real and some hypothetical, it underlines the inefficacy of the terrestrial copyright principle, namely the lex loci protection, when applied to outer space endeavors. In outer space, the law where the infringement arises is useful only when the jurisdiction is clear, which is on board of registered space objects; however, that is not even the case for all space objects. On board poli-jurisdictional entities, such as the ISS, the lex loci protectionis fails to provide a clear legal framework, at …

Registry Systems As Gatekeepers: How Patent Registries Create Systemic Barriers To Innovation, Miriam Marcowitz-Bitton, Ori Sharon

Fordham Intellectual Property, Media and Entertainment Law Journal

Picture an inventor. Anyone at all. We bet you imagined a man, is that right? If you did, that’s not surprising—our study of over 140,000 patent applications reveals that three out of four patents name all-male inventors, and only three percent of patents represent the inventions of women-only teams. But this massive gender gap is not just about who chooses to invent—it’s about who gets to protect their innovations through the patent system.

This Article presents groundbreaking evidence that women face systemic barriers in securing patents, even when they clear the hurdles to become inventors. Drawing on an unprecedented dataset …

Stopping The Spread Of The World's Oldest Hatred - What U.S. Sports Stakeholders Can Do To Combat Antisemitism, Mark Conrad

Fordham Intellectual Property, Media and Entertainment Law Journal

The consistent rise in reported acts of antisemitism in the United States over the last decade has prompted debate about strategies to combat this age-old menace. The Hamas attack on Israel and the subsequent Israeli military response in Gaza has exacerbated this trend. Many have debated ways to confront the issue, including informing the public about the magnitude of the problem and finding policies to reduce incidents of antisemitism. The sports industry could help in this quest. Because millions of people follow professional, college, high school, and Olympic sports, organizations and individual athletes could participate in activities designed …

Ai In The Courtroom: The Boundaries Of Robolawyers And Robojudges, Hadar Y. Jabotinsky, Michal Lavi

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial intelligence (AI) is rapidly developing and undoubtedly impacting every aspect of our lives. From lethal drones, to Apple’s Siri, and improved cancer diagnostics, AI algorithms are also increasingly integrated into decision-making. This article illuminates the impact of AI on the legal system and profession.

Currently, AI legal tools support lawyers’ and judges’ work and can assist in tasks such as due diligence, legal analysis, classification of documents by Technology-Assisted Review (TAR), providing legal advice, and engaging in predicting legal judgments. AI can even assist judges in decision making for risk assessments during sentencing. The …

The Implementation And Use Of Intimacy Coordinators In Motion Picture Productions, John J. Chung, Pia Piscitelli

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The History And Future Of Amateurism In College Sports, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

College sports and amateurism have long been intertwined, with the NCAA championing the term “student-athlete” to reinforce the notion that college athletes should not be paid employees. However, this notion has come under fire because college athletes had to risk losing eligibility to receive compensation while helping schools profit. In response, athletes have challenged the system using antitrust, intellectual property, and labor & employment laws.

The U.S. Supreme Court’s unanimous decision in NCAA v. Alston dealt a decisive blow to the NCAA’s financial restrictions, declaring that there is no “amateurism exception” to antitrust law. This landmark ruling …

Proposed Rule 3b-16: The Sec's Attempt To Change Definition Of "Exchange" Under The Exchange Act Of 1934 Provides Lessons For A New Era Of Crypto Regulation, Gwyneth Tefft

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Metes And Bounds Of Federal Trade Secret Protections: Deriving Cohesive Damages Principles Under The Defend Trade Secrets Act, Angela Peterson

Fordham Intellectual Property, Media and Entertainment Law Journal

The Defend Trade Secrets Act launched trade secret law, which formerly only reached federal courts in diversity cases or cases involving espionage, into the national spotlight. As these cases begin to progress to trial, courts face new questions about how to appropriately measure monetary damages for trade secret claims. Because many courts take a “flexible and imaginative” approach to trade secret damages generally and most state trade secret statutes do not require damages as a part of a successful trade secret liability case, most courts that have considered damages methodology challenges to DTSA claims have failed to employ …

Diversities Requiem: Fashion’S Very Own Brand Of Exceptionalism And Rethinking Mcdonnell Douglas, Symrin Greenhow

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Fear Of Ideas? Social Media, Foreign Influence, And National Security In A New Era Of Great-Power Competition, Michael Park

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent spate of legal restrictions on the use of TikTok and other foreign-controlled social media applications highlight concerns over personal data collection, but also how fears over the potential foreign influence of ideas from adversarial foreign governments—whether by propaganda, censorship, or disinformation—have re-emerged in the national security debate. Yet there are concerns that this new era of great power competition will be the basis for justifying overreaching speech regulations that hinder access to information and ideas under the aegis of national security. This work attempts to examine the recent enactment of speech restrictions or bans on foreign-controlled applications within …

Reevaluating Force Majeure Clauses In The Aftermath Of The Covid-19 Pandemic And Its Implications On The Entertainment Industry, Esther Animalu

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Protecting What's Yours: Rights, Risks, And Realities In Ip And Entertainment, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Ozempic Paradox: How Much Is Too Much In The Race For Weight Loss And Diabetes Treatment?, Jack Bekos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Right To (Digital) Identity, Sarah M. Snow

Fordham Intellectual Property, Media and Entertainment Law Journal

Identity verification is a prerequisite for full participation in modern society. Access to financial services, employment, housing, healthcare, education, and civic engagement all hinge on an individual’s ability to prove their identity. Millions of Americans—particularly marginalized groups—struggle with the rigid, bureaucratic, and often discriminatory processes of traditional identity verification systems. Without legally recognized identification, individuals are effectively excluded from economic and civic life. This Note argues that the ability to prove one’s identity is a protected interest. It proposes adoption of a federal Self-Sovereign Identity (SSI) as a legal and technological mechanism to guarantee all Americans have access to a …

Holograms Are Taking Over The World! An Analysis On Legal Implications Holograms Pose In Right Of Publicity And Copyright Law, Marie A. Kessel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Use Of Clearview Ai To Support Warrants Violates The Fourth Amendment, Kevin Johnson

Fordham Intellectual Property, Media and Entertainment Law Journal

Social media platforms encouraged millions of Americans to post hundreds of photos of themselves on the Internet. Clearview AI, a tool that harnesses “publicly available” online images for facial recognition, violated those platforms’ terms of service to collect those photos and in doing so de-anonymized millions of Americans. This Note examines the Fourth Amendment implications of law enforcement’s use of Clearview AI and its compatibility with constitutional protections. This Note argues that the use of Clearview AI by police to support warrant applications runs afoul of established legal standards by analyzing the evolution of Fourth Amendment ju …

Political Neutrality In The Rules Of International Sports Federations: Compatible With Fundamental Freedoms?, Ilias Bantekas

Fordham Intellectual Property, Media and Entertainment Law Journal

International sports federations celebrate and impose strict political neutrality in their institutional rules. Such neutrality is inconsistent with the individual rights of athletes to freedom of expression and peaceful assembly. The contractual basis of such restriction is irrelevant because fundamental rights are constitutionally entrenched and cannot be limited by contract or law, save for if the expression incites to violence, hatred, discrimination or is otherwise inconsistent with criminal law. There is no empirical evidence suggesting that restricting the political expression of influential athletes leads to generalized political or other violence. Instead, it is clear that international sports federations, and particularly …

Is Garcetti Too Cool For School?: Why Garcetti V. Ceballos Should Not Apply To School Teachers, Jordan Zaia

Fordham Intellectual Property, Media and Entertainment Law Journal

The First Amendment is implicated by students and teachers every day in public schools. For years, courts followed the test established in Pickering v. Board of Education to analyze free speech claims for public school teachers. However, teachers’ protections were changed in 2006 when the U.S. Supreme Court decided Garcetti v. Ceballos. Since then, the circuits have inconsistently applied this test in cases relating to education. With the circuit split and high-profile cases rising in the federal circuits, the Supreme Court may have an opportunity to resolve the issue.

This Note advocates for the Supreme Court to rule that Garcetti …

Cross-Border Data Regulatory Frameworks: Opportunities, Challenges, And A Future- Forward Agenda, Andrew D. Mitchell, Neha Mishra

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article evaluates the existing regulatory framework for cross-border data flows across Bahrain, Djibouti, Jordan, Kuwait, Morocco, Nigeria, Oman, Pakistan, Rwanda, and Saudi Arabia. A common factor among these countries is that they are members of the Digital Cooperation Organization (“DCO”). It considers how these countries have devised laws, regulations, and policies on cross-border data flows to enable digital trade, and how these instruments promote the growth of a robust digital economy, both domestically and internationally. The Article then offers policy recommendations for DCO members to consider in developing relevant laws and regulations on data flows.

These …

Anti-Drag Laws And Free Speech: The First Amendment Case For Protecting Drag, Dr. Joel Timmer

Fordham Intellectual Property, Media and Entertainment Law Journal

In 2023, there were six federal court cases involving anti-drag laws or government denials of permission to hold drag shows on public property. All but one of these cases concluded that drag shows constituted expressive conduct protected by the First Amendment. Four of the cases involved challenges to recently enacted anti-drag laws, and in each of those cases, the courts found the laws to violate the First Amendment on multiple grounds, including not being narrowly tailored to achieve their purpose, as well as being vague and overbroad. However, one court, ruling on a denial of permission to …

Minecraft As A Teaching Tool: Online Experiential Learning For The Law School Classroom, Maria Jose Schmidt-Kessen, Stina Teilmann-Lock, Florence Villesèche, Andrea Wallace

Fordham Intellectual Property, Media and Entertainment Law Journal

The Article explores the potential use of Minecraft for experiential learning in higher education. In theory and in practice, intellectual property (IP) questions increasingly arise around if or how digital art can be owned, shared, and reused, as well as how digital realities interact with the various legal regimes. In its sandbox environment, Minecraft allows players to explore these questions through collective co-creation and creative decision-making pertaining to the subsequent re-use of their digital creations. Players become better equipped to reflect on the process of copying, creating, and exploiting their digital creations using the legal tools offered by IP law, …