Intellectual Property Law Commons^™

Bootlegging For The Better: Livestreams And The Music Industry, Delta Pennington

Georgia Journal of Law & Technology

As online presence has continued to become a more important aspect of everyday, it has become a norm in American Culture to share every aspect of life, including concert attendance. While artists expressed distaste in the past for recording at concerts, there has been a shift by musicians to acceptance of recording at concerts, sometimes being an important form of cheap promotion. Artists that do continue to express distaste for concerts being shared on social media have turned to non-legal remedies to solve their problem. Although there is a remedy available to artists for the livestreaming of concerts through the …

The Fringe Musician, The 360 Deal, And A New Look At Copyright And Competition In Music, Michael L. Menna

Georgia Journal of Law & Technology

This article is guided by two questions: (1) How well does the law actually protect musicians from market exploitation? (2) What new perspectives and legal strategies can better secure their bargaining power and financial wellbeing? Copyright and antitrust are not mutually exclusive in music or in any other industry, yet there are important lessons to be learned from comparing how the musician’s prominence in each doctrine does and doesn’t correlate to what its laws can really do for different members of that creator class. Stakeholders frequently cast copyright as an essential necessity for “everyone in the music industry,” but this …

Art Wants To Be Free, Brian L. Frye

Georgia Journal of Law & Technology

What is fair use? In Warhol v. Goldsmith, the Supreme Court held that licensing a painting based on a photograph wasn’t a transformative fair use, because the painting competed with the photograph in the market for images of the same person. This article tells the story of Warhol v. Goldsmith, analyzes the opinion, and explains how it changed copyright doctrine. It also presents a theory of how appropriation artists can use the public domain to insulate themselves from liability for copyright infringement.

Rage Against The Machine: Copyright Infringement In Ai-Generated Music, Joseph Will

Georgia Journal of Law & Technology

AI-generated music has garnered significant attention, with many raising concerns about the new technology’s potential impact on both the music industry and human creativity. Others, including some musicians, have expressed excitement about AI and its potential for furthering creativity. Much focus has been placed on “deepfakes” of famous musicians, but there is also the issue of the use of copyrighted songs as training inputs for AI music generators. Some have argued that this machine learning process constitutes widespread copyright infringement, though it is not clear how courts will address this novel phenomenon. This Note examines AI-generated music through the lens …

A Patent Pool-Party: Changing The Current Use Of Patent Pools For Treatment Innovation In Public Health Emergencies, Emma Whitmore

Georgia Journal of Law & Technology

Intellectual property laws have been in tension with the creation of innovation for the public good since their inception. Many intellectual property concepts such as patents create an opportunity for ownership of invention, which in the general market and in typical life circumstances, has the power to aid innovation and work successfully in the market. However, in times of emergency, intellectual property can create a roadblock that costs human life. As highlighted in the current COVID-19 pandemic, intellectual property laws have the power to act as a hinderance to the innovation of lifesaving treatments by not allowing information to be …

Guilty Pleasures: The Copyright And Labor Of Reality Television, Emily Tracy

Georgia Journal of Law & Technology

The Writers Guild of America’s 2023 strike forced audiences to reckon with Hollywood’s labor issues and the powerhouse unions that seek to solve them. Television networks responded with “strike-proof” fall schedules that highlighted a gap in the entertainment industry’s union membership: reality television. This Note examines and questions that gap, focusing on the labor of reality story producers and the important role it plays in creating a copyrightable product. Although copyright doctrine offers story producers little to no protection against exploitation, copyright case law implicitly recognizes story producers as, essentially, writers. This Note uses that case law to argue that …

Navigating The Trademark Parody Paradigm: Assessing The Impact Of The ‘Bad Spaniels’ Decision On Ip Owners, Creatives, And Self-Parody In The Post-Jack Daniel’S Era, Allison Richards

Georgia Journal of Law & Technology

This Note explores the blurred lines that now exist at the intersection of safeguarding trademark owners’ rights and protecting the public interest in freedom of expression, with a specific focus on the recent and unprecedented Supreme Court ruling in the ‘Bad Spaniels’ dog chew-toy trademark infringement case. The Supreme Court’s June 2023 decision in Jack Daniel’s v. VIP Products prompts a critical analysis of the once-dominant Rogers v. Grimaldi test, questioning its applicability in determining fair use and parody within the realm of trademark infringement. In examining what lies ahead for the evolving world of trademark law post-‘Bad Spaniels’, this …

Slowing Down Fast Fashion: How Improved Intellectual Property Law Can Protect Designers And Promote Sustainability, Julia Krzeminski

Georgia Journal of Law & Technology

Fast fashion, characterized as clothing made quickly and cheaply, can be seen as a solution for consumers who want to participate in current fashion trends at price points they can afford. While creating a solution for consumers, fast fashion creates even greater problems for both the environment and the designers responsible for creating the clothing everyone wants to wear.

In order to keep up with consumer demand for low-cost, trendy items, many fast fashion retailers look to the work of other designers to determine what to create and sell. In doing so, the line between inspiration and imitation may be …

Commerciality & Originality: Andy Warhol’S Impact On Analyzing Fair Use On Social Media, Bob Anderson

Georgia Journal of Law & Technology

This Note creates a three-bucket commerciality approach for noncommercial content, advertisements, and monetized content to answer how copyright’s fair use protects social media content. To demonstrate its application, the bucket approach is applied to current discussions surrounding social media including video thumbnails, memes, reaction and commentary videos, music in videos, and news reporting. While there is no definitive answer to fair use, this Note attempts to provide clearer guidance using Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith’s lessons.

With the amount of social media content growing exponentially, copying of original content has become rampant. Though many …

Eliminating Ghostwriters: How A Federal Right Of Publicity Can Save The Music Industry From Generative Artificial Intelligence, Ikram Ali Mohammed

Georgia Journal of Law & Technology

Copyright law is currently incapable of resolving challenges introduced by the use of generative artificial intelligence, or generative AI, in the music industry. This technology is being adopted by both copyright holders and licensees, as well as independent artists and third-party applications. In 2023, online producer Ghostwriter created a song (Heart on My Sleeve) directly influenced by copyrighted materials from global artists Drake and The Weeknd using AI technology. The composition garnered millions of listeners across social media and streaming platforms. However, neither the original artists nor their music group (i.e., Universal Music Group) provided Ghostwriter a license …

Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley

Georgia Journal of Law & Technology

There is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both …

Table Of Contents, Hunter Payne

Georgia Journal of Law & Technology

No abstract provided.

Trial By Trademark: Why The Trademark System Needs To Stand On Its Own Two Marks, Ben Siegel

Georgia Journal of Law & Technology

While IP-intensive industries continue to produce a significant portion of the American economy, trademarks consistently remain a substantial portion. Given trademarks’ increasingly pivotal role in the global economy, the complexities and nuances of trademark law demand a specialized approach. In examining the current trademark landscape, many scholars have underscored the paradox of its fractured nature, despite its fundamental role in the economy. Currently, trademark law suffers from a lack of uniformity across the various circuits in critical areas of the law itself, as well as vulnerabilities in forum shopping and confusion for businesses.

Rather than endorsing the conventional approach to …

The Unregulated Digital Playground: Why Kids Need Right Of Publicity Protections From Their Parents, Sophie Polo

Georgia Journal of Law & Technology

As social media continues to become more prevalent in society, profitability on social media platforms continues to increase. Parents have discovered ways to profit online by using their children in content to gather views, therefore taking advantage of their children's right of publicity. While some parents use this profit to raise their children, there is no guarantee that children benefit from their parent's use of their name, image, or likeness. Since social media is still a relatively new space, there are not many protections for the interests of children on social media compared to other areas such as child acting. …

"Cheer Is A Sport": The Ncaa, Title Ix Compliance, And Nil, Mary Kate Mclean

Georgia Journal of Law & Technology

Over fifty years have passed since the famous women’s rights Title IX legislation was enacted. Equal opportunity for women in education, and specifically in colligate athletics, has been an ongoing game since 1972 and while drastic improvements have been made, the playing field is still not even for female student-athletes. Many universities continue to struggle with Title IX Compliance and recent events and trends including the Covid-19 pandemic and the increasing female undergraduate population have dramatized the problems. In the wake of the Name, Image, and Likeness era, a solution to compliance is more important now than ever where a …

Leveling Up Fair Use: The Ultimate Cheat Code For Video Game Modders In The Wake Of Google V. Oracle, Parker G. Furman

Georgia Journal of Law & Technology

Video game modifications, or "mods," made by third parties or fans of a video game, have reached the limelight of mainstream video game popularity. The internet has become a space for mod makers to share their creations with any user, without the need for physical modifications to a game cartridge or circuit board. Instead, mod software allows a player to install mods with ease and is extremely accessible, yet under the law, the legal status of video game mods remains uncertain. Video game mods are seen as infringing the copyright of the original game. This Note examines the application of …

Marking The Metaverse: The Implication Of Nfts On Trademark Law, Hanna Esserman

Georgia Journal of Law & Technology

Within the last decade, internet users have witnessed the birth, rise, and mainstream popularity of the Non-Fungible Token, or “NFT.” Nearly ten years after the creation of the first NFT, there is now a wave of first impression litigation surfacing which questions the implications of NFTs on intellectual property law. This Note analyzes the intersection of Non-Fungible Tokens and trademark law in the United States.

Until recently, it has been unclear whether Non-Fungible Tokens are eligible to be protected under long-standing federal trademark laws. This includes allegations of NFTs infringing upon existing trademarks, as well as trademarked NFTs being infringed …

The "Wild West" Of State Nil Laws: Asking For Congress To Bail Out The Ncaa, Evan Crowder

Georgia Journal of Law & Technology

This Note explores the evolution of the amateur status in college athletics, particularly the absence of a consistent definition for “amateur collegiate athlete” by the NCAA over the years. The traditional demarcation between amateur and professional athletes blurred significantly, particularly with the exponential growth of college football revenues, leading to indistinguishable time commitments for both categories. The landmark case of NCAA v. Alston marked a pivotal moment as the Supreme Court ruled in favor of allowing college athletes to earn compensation for the use of their name, image, and likeness ("NIL"). This decision overturned decades of prohibiting such practices in …

Public Domain And Access To Knowledge, Faith O. Majekolagbe

Georgia Journal of Law & Technology

In a world where truth is behind paywalls and lies are free, the importance of a realm of works that are free from copyright protection becomes even more important for access to knowledge and information. This Article considers a thriving and accessible public domain a key mechanism for engendering access to knowledge and propelling human development globally. The copyright public domain as a realm of freely accessible and usable works and elements of works is under immense threat due to the constant extension of the term of copyright protection, disparities in the scope of the public domain globally, the absence …

Ip Protection For Love: Dating App’S Feuds And Foes, Meredith Williams

Georgia Journal of Law & Technology

A new method of meeting others and dating online has emerged amid today’s age of technology. Online dating, now largely facilitated through apps, has grown exponentially since its genesis. With this growth, online dating services have sought intellectual property protection. This Note examines the patentability of dating app features, primarily the digital user interface through the backdrop of a recent dispute between Tinder and Bumble. It begins with a history of online dating and analysis of why apps have become a popular tool to launch a business. The Note then delves into a new dating app concept and accompanying patent …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Georgia Journal of Law & Technology

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

Transparency Is The Best Policy: The Case For Georgia To Allow Access To The Source Code Of Proprietary Voting Software, Grace Repella

Georgia Journal of Law & Technology

Within the past century, electronic voting systems have become common place. Most states hold their elections via electronic voting machines. These voting machines require software, and that software is built out of source code. Most states, including the state of Georgia, use voting machines with proprietary software made by private companies to run their elections. These companies have pushed back against access to the source code of their software because of intellectual property issues related to trade secret and copyright law. Nonetheless, states have an interest in guaranteeing their elections are not vulnerable to attack or hacking, and voters want …

Architectural Copyrights: The Eighth Circuit's Structurally Sound Interpretation Of 17 U.S.C. § 120, Hunter T. Payne

Georgia Journal of Law & Technology

The Eighth Circuit expanded architectural copyright protection in Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., by interpreting § 17 U.S.C. 120(a) consistent with both its plain meaning and legislative intent. In doing so, the court took a pivotal step in protecting architects’ copyright interest in floorplans posted on virtual real estate websites without consent. The National Association of Realtors quickly took offense, declaring this an invitation to waves of litigation, hindering the current state of real estate transactions that often occur via websites like Zillow or Redfin. However, as highlighted by the Eighth Circuit, copyright fair use …

To "The" Or Not To "The"? The Question Has Been Answered: An Examination Of Trademark Bullying In The Context Of The Ohio State University's Recent Trademark Registration, Jennifer M. Danker

Georgia Journal of Law & Technology

This Note examines the growing concern in the legal community around trademark bullying by specifically focusing on the registration of the word mark “THE” by The Ohio State University (“OSU”) and its potential for abuse and overreach in trademark enforcement. By carefully analyzing relevant legal precedent, statutory provisions, and USPTO administrative procedures, this Note critically considers the offered justifications for and likely consequences of the trademark’s registration.

By exploring the historical progression of trademark law, including its purpose and underlying principles, this Note provides a framework for evaluating the merits and potential concerns associated with the recent registration. Additionally, it …

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Georgia Journal of Law & Technology

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …

Rethinking "Reasonableness": Implementation Of A National Board To Clarify The Trade Secret Standard Now That The Work-From-Home Culture Has Changed The Rules, Hannah E. Brown

Georgia Journal of Law & Technology

Under the federal Defend Trade Secrets Act (“DTSA”), almost any type of information can qualify as a trade secret but only if the owner has taken “reasonable measures” to keep such information secret. Under case law, what is “reasonable” varies and may differ based on the court, the company size, and the particular facts of each situation. The interpretation of what is “reasonable” must change with the times, specifically, to take into consideration the sharp increase in remote work that accompanied the COVID-19 pandemic. The rise in remote work necessarily means more servers accessing data and more remote transmission of …

Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly

Georgia Journal of Law & Technology

The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …

Exposing The “Folklore” Of Re-Recording Clauses (Taylor’S Version), Justin Tilghman

Georgia Journal of Law & Technology

Many artists believe that their significance, power, or notoriety comes from how many GRAMMY awards they have won or how well their albums sales do the first week. However, very few artists recognize that the true power comes in the form of owning the rights to their master recordings. Given how difficult it is to achieve commercial success as an independent artist, many artists will turn to major record companies to help with their music production and distribution. This help, however, is not unconditional. The artist will sign over the master recording rights to the song or album to the …

Greasing The Wheels Of Patent Law: Clarifying The Judicial Exceptions Via American Axle & Manufacturing, Inc. V. Neapco Holdings Llc, Michael Oliver

Georgia Journal of Law & Technology

Patents stimulate the economy, they give inventors (and investors in the patent) confidence that their work will be protected. You have never been able to patent laws of nature, natural phenomena or abstract ideas. These combine to create the judicial exceptions. The issue is that these terms are so broad that it is difficult to determine when a patent is connected to a judicial exception. The Supreme Court created the Alice test, a two-part test to determine whether a claim is tied to a judicial exception. That was back in 2014 and is the last time the Supreme Court has …

When A “+” Doesn’T Add Anything In The Equation: Analyzing The Effect Of The “+” On Trademark Law, Vasilios Nasoulis

Georgia Journal of Law & Technology

In the past decade, there has been a growing trend where companies use the plus sign, “+”, in their branding. From industry titans like Google and Apple to smaller, niche companies like World Champ Tech, there has been an increased use of the + in product and service names. This raises trademark questions about how the mark should be protected and how does the + change the meaning of a name. Trademarks are designed to protect producers as well as consumers from deceit, miscommunication, and misunderstanding. The + potentially denies producers and consumers these protections.

Another trend in the past …