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Articles 1 - 30 of 185
Full-Text Articles in Intellectual Property Law
Digital Reuse And Online Availability Of Visual Artworks, Paul J. Heald, Matthias Sahli, Alexander Cuntz
Digital Reuse And Online Availability Of Visual Artworks, Paul J. Heald, Matthias Sahli, Alexander Cuntz
Scholarly Works
We study how copyright impacts the distribution and reuse of images in the visual arts sector, exploiting the discontinuity at the 1926 US public domain cutoff together with cross-country variation between US and European museums. We find that public domain status raises artist-level image availability on Useum, a major image aggregator, by approximately 19 percent relative to comparable copyrighted artworks. Onward reuse of Useum images across the web is substantial - an artwork image appears on 76 additional web pages on average - and is higher for public domain artworks, though estimates are statistically significant only in some specifications. Moreover, …
Brief For Amici Curiae Brian L. Frye, Jess Miers, And Mateusz Blaszczyk In Support Of Appellant, Bryan L. Frye, Jess Miers, Mateusz Blaszczyk
Brief For Amici Curiae Brian L. Frye, Jess Miers, And Mateusz Blaszczyk In Support Of Appellant, Bryan L. Frye, Jess Miers, Mateusz Blaszczyk
Scholarly Works
This is an amicus curiae brief filed by Brian L. Frye, Jess Miers, and Mateusz Blaszczyk in support of ROSS Intelligence, Inc., arguing that Thomson Reuters's claim for copyright infringement should be dismissed.
Copyright, Ebooks, And The Future Of Digital Lending, Mary Lafrance
Copyright, Ebooks, And The Future Of Digital Lending, Mary Lafrance
Scholarly Works
Public libraries face a digital lending crisis. Even as library patrons demand greater access to digital materials, eBook publishers have subjected libraries to onerous licensing terms. These include prices substantially higher than those charged to the general public, as well as stringent constraints on license duration and/or loan volume, forcing many libraries to repurchase their eBooks every one or two years. Some publishers are releasing new books only in digital formats, making it even more costly for libraries to maintain robust collections. eBook publishers also compel libraries to use specific digital lending platforms which pose risks to patron privacy. At …
Cross-Border Limitations And Exceptions To Copyright: “Powered By Ai”, Marketa Trimble
Cross-Border Limitations And Exceptions To Copyright: “Powered By Ai”, Marketa Trimble
Scholarly Works
Businesses and institutions that wish to utilize copyright protected works in multiple countries face a multiplicity of national copyright laws; although national copyright laws have been harmonized in accordance with several international treaties and harmonized even more in the European Union member states by European Union legislation, countries’ copyright laws continue to vary. The multiplicity of national copyright laws raises costs of transnational operations, including for businesses and institutions that rely on limitations and exceptions to copyright (“L&Es”) in multiple countries. For example, AI companies might want to rely on L&Es to train and deploy their AI in multiple countries, …
Copyright, Creativity, And Skill: Authorship And Ai-Assisted Works, Lucas S. Osborn
Copyright, Creativity, And Skill: Authorship And Ai-Assisted Works, Lucas S. Osborn
Scholarly Works
Generative artificial intelligence ("Al") has increasingly become a focal point in legal discussions, raising complex issues across multiple domains, including algorithmic bias, defamation, intellectual property, and privacy. This Article specifically examines the implications of Al-assisted works, with a focus on text-to-image generators, such as Midjourney, that possess the ability to create detailed visual art from simple text prompts. The tools are not, however, limited to simple prompts. Users retain the ability to introduce greater complexity by specifying a host of variables that define the resulting image. Al-assisted art implicates significant legal rights and responsibilities. As to responsibilities: Can the image …
The Law Of Digital Resurrection, Victoria J. Haneman
The Law Of Digital Resurrection, Victoria J. Haneman
Scholarly Works
The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the …
Ai Artists On The Stand: Bias Against Artificial Intelligence-Generated Works In Copyright Law, W. Michael Schuster, Joseph J. Avery
Ai Artists On The Stand: Bias Against Artificial Intelligence-Generated Works In Copyright Law, W. Michael Schuster, Joseph J. Avery
Scholarly Works
Generative artificial intelligence (AI) is revolutionizing the creation of art, literature, and music, challenging the boundaries of intellectual property law. To date, scholars have primarily focused on AI's authorship/entity status and the regulation of its use, overshadowing a critical issue: how AI's involvement in creative processes influences legal judgments in copyright disputes. Our empirical research reveals systemic bias against AI-generated works in such legal matters. In our studies, participants read about a company that had hired either a human designer (condition one) or a generative AI art system (condition two) to produce works of art, and those works of art …
Values-Ambiguous Clinics, Willow Tracy
Values-Ambiguous Clinics, Willow Tracy
Scholarly Works
As law school clinical programs have grown in recent decades, many of the newer offerings focus on business law, entrepreneurship, intellectualproperty, and technology. It is commonly presumed that social justice values, such as the amelioration ofpoverty or theprotection offundamental rights, are notfoundational goals of these non-traditional clinics. This Article calls these clinics "values-ambiguous" to highlight the frequent uncertainty and skepticism about their relationship to traditional clinical social justice values. Importantly, "values-ambiguous"does not describe a quality of the clinic itself it describes a quality ofperception of the clinic. In other words, "values-ambiguous clinics" are clinics that are typically not perceived as …
Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Mateusz Blaszczyk
Copyright Doctrine Before The Tribunal Of Science: A Response To Professor Silbey, Mateusz Blaszczyk
Scholarly Works
In an important new Article, titled A Matter of Facts: The Evolution of the Copyright Fact-Exclusion and Its Implications for Disinformation and Democracy, Professor Jessica Silbey argues provocatively that we “‘only” know that facts are excluded from copyright protection because Feist Publications v. Rural Telephone Service “says so.” She argues that both the nature and importance of facts has been underdefined and is in flux, nonetheless tracing it to the foundational cases of United States (U.S.) copyright law, and argues for a stronger exclusion of facts, which are publici juris, and belong in the public domain. This central …
Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley
Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley
Scholarly Works
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 …
Impossibility Of Artificial Inventors, Mateusz Blaszczyk
Impossibility Of Artificial Inventors, Mateusz Blaszczyk
Scholarly Works
Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many of the courts all over the world. This Article analyzes these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. This Article challenges the intellectual property (IP) post-humanists, exposing the analytical and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans …
Section 230 Reform, Liberalism, And Their Discontents, Mateusz Blaszczyk
Section 230 Reform, Liberalism, And Their Discontents, Mateusz Blaszczyk
Scholarly Works
The Section 230 debate is a proxy for reevaluating constitutional fundamentals. The modern right and the modern left, both attacking Section 230, have abandoned liberalism, together with free speech, public private divide, and the politics of neutrality. Instead of believing in First Amendment value pluralism, each side of the spectrum wishes to realize their own positive normative vision for the political community which, today, is largely defined in the realm of digital culture. Each side recognizes the political other as an enemy to their own utopia, wishing to control, censor, or simply become sovereign thereover. These existential politics of the …
Artificial Intelligence And Mediation Ethics, Zachary R. Calo
Artificial Intelligence And Mediation Ethics, Zachary R. Calo
Scholarly Works
No abstract provided.
Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley
Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley
Scholarly Works
Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the …
What Is The Territorial Scope Of The Lanham Act?, Marketa Trimble
What Is The Territorial Scope Of The Lanham Act?, Marketa Trimble
Scholarly Works
Since Steele v. Bulova Watch Co., 344 U.S. 280 (1952), the Supreme Court has not addressed the territorial scope of the Lanham Act. Abitron Austria GmbH v. Hetronic International, Inc. is an opportunity for the Court to clarify how its RJR Nabisco extraterritoriality framework applies to the Lanham Act, whether and how current circuit court tests fit into the framework, and whether any of the tests should apply in the second step of the framework.
Of Marks And Markets: An Empirical Study Of Trademark Litigation, Jessica M. Kiser, Sean P. Wright, Benjamin P. Edwards
Of Marks And Markets: An Empirical Study Of Trademark Litigation, Jessica M. Kiser, Sean P. Wright, Benjamin P. Edwards
Scholarly Works
Trademarks are increasingly valuable assets, and some companies aggressively enforce and protect these assets. Such aggressive tactics can harm small businesses and chill creativity and speech, but trademark owners are routinely told that the law requires them to stop all similar third-party trademark usage or risk abandonment of their rights. While prior scholarship has discussed how the risk of trademark abandonment is quite low, incentives built into trademark law still push companies to court. This Article presents the results of an event study utilizing an established database of trademark infringement cases to provide insight to decisionmakers on whether the stock …
Impossibility Of Emergent Works’ Protection In U.S. And Eu Copyright Law, Mateusz Blaszczyk
Impossibility Of Emergent Works’ Protection In U.S. And Eu Copyright Law, Mateusz Blaszczyk
Scholarly Works
Protection of emergent works is impossible. Without an author, there is no expression of ideas which can be original, and thus no copyrightable work. Indeed, the whole system of copyright law, its conceptual building blocks of idea-expression dichotomy, originality, authorship, and the concept of a protectable work operate in the notation of human creativity. Emergent works fall outside of copyright’s positive ontology, being akin to ideas, facts, or subject-matter predicated by technical considerations, rather than authorial creativity. In other words, they do not exist as things in law and thus cannot as such be owned. Rather, like any idea, they …
Unjustly Vilified Trips-Plus?: Intellectual Property Law In Free Trade Agreements, Marketa Trimble
Unjustly Vilified Trips-Plus?: Intellectual Property Law In Free Trade Agreements, Marketa Trimble
Scholarly Works
Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning …
Joint Authorship And Dramatic Works: A Critical History, Mary Lafrance
Joint Authorship And Dramatic Works: A Critical History, Mary Lafrance
Scholarly Works
This Article examines the evolution of copyright law pertaining to collaborative authorship and finds that much of the core legal doctrine in this area arose from disputes involving dramatic works. This fresh look at theatrical collaborations reveals a rich history that calls into question the modem judicial presumption that dramatic writing is the product of individual genius. Examining the history of Anglo- American law's response to collaboration in dramatic works offers valuable insight into the development of multiple concepts related to authorship-in particular, the rules governing derivative works, works made for hire, and joint works. It also demonstrates that the …
Apportioning Authorship, Mary Lafrance
Apportioning Authorship, Mary Lafrance
Scholarly Works
Part II of this Article introduces the restrictive joint authorship tests created by federal courts, and the courts' reliance on the equal ownership principle as a justification for those tests. Part III examines the relevant case law and other authorities addressing the rights of tenants in common under both copyright law and the general law of property, and concludes that, contrary to the views expressed by many courts and commentators, historical precedent and legislative history strongly favor an interpretation of the copyright statutes that apportions joint authorship shares according to the collaborators' respective contributions. Part IV examines the decision of …
Against Progress: The Value Of Distributive Justice In Intellectual Property, Leah Chan Grinvald
Against Progress: The Value Of Distributive Justice In Intellectual Property, Leah Chan Grinvald
Scholarly Works
No abstract provided.
Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley
Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley
Scholarly Works
This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, …
The Public Policy Exception And International Intellectual Property Law, Marketa Trimble
The Public Policy Exception And International Intellectual Property Law, Marketa Trimble
Scholarly Works
No abstract provided.
International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble
International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Recognition And Enforcement, Pedro De Miguel Asensio, Marketa Trimble
Scholarly Works
This section of the the chapter "Recognition and Enforcement" of the International Law Association's Guidelines on Intellectual Property and Private International Law ("Kyoto Guidelines") establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of …
Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald
Repairing Medical Equipment In Times Of Pandemic, Ofer Tur-Sinai, Leah Chan Grinvald
Scholarly Works
The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other healthcare providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and …
Smart Cars, Telematics, And Repair, Leah Chan Grinvald, Ofer Tur-Sinai
Smart Cars, Telematics, And Repair, Leah Chan Grinvald, Ofer Tur-Sinai
Scholarly Works
Recent years have seen a surge in the use of automotive telematics. Telematics is the integration of telecommunications and informatics technologies. Using telematics in cars enables transmission of data communications between the car and other systems or devices. This opens up a wide range of possibilities, including the prospect of conducting remote diagnostics based on real-time access to the vehicle. Yet, as with any new technology, alongside its potential benefits, the use of automotive telematics could also have potential downsides. This Article explores the significant negative impact that the growing reliance on telematics systems could have on competition in the …
Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald
Trademark Enforcement And Statutory Incentives, Leah Chan Grinvald
Scholarly Works
The combination of the recent U.S. Supreme Court case, Romag Fasteners v. Fossil Group, Inc., and the diamond anniversary of the Lanham Act provides good grounds to reflect on how trademark enforcement and statutory incentives have evolved through the years. Although enforcement of one’s trademarks through the use of the courts can be traced back to England in the 1790s, trademark litigation and other enforcement activities have exploded, in relative terms, since the enactment of the Lanham Act in 1946. Although not subject to an easy empirical correlation, this trend suggests that the statute has had an impact on …
A Quarter Century Of International Copyright On Software, Marketa Trimble
A Quarter Century Of International Copyright On Software, Marketa Trimble
Scholarly Works
No abstract provided.
Public Art, Public Space, And The Panorama Right, Mary Lafrance
Public Art, Public Space, And The Panorama Right, Mary Lafrance
Scholarly Works
When art is installed in public spaces in the United States, the public's right to capture and share images for commercial or noncommercial purposes is not clearly defined by federal copyright law. This has led to both actual and threatened litigation. In the absence of a specific copyright rule designed to address these disputes, they must be resolved under a patchwork of other doctrines that are uncertain in scope, including fair use, de minimis use, and the statutory exception for images of architectural works, but none of these provide predictable results. In contrast, many foreign jurisdictions have enacted 'freedom of …
U.S. Supreme Court I.P. Cases, 1810-2019: Measuring & Mapping The Citation Networks, Joseph S. Miller
U.S. Supreme Court I.P. Cases, 1810-2019: Measuring & Mapping The Citation Networks, Joseph S. Miller
Scholarly Works
Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …