Intellectual Property Law Commons^™

Valuing Intellectual Property: An Experiment, Christopher Buccafusco, Christopher Sprigman

Faculty Scholarship

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

Stealth Marketing And Antibranding: The Love That Dare Not Speak Its Name , Sonia K. Katyal

Faculty Scholarship

A difficult set of legal issues stem from the crossover between stealth marketing and user generated content in both real and digital space. Today, branding opportunities can be cloaked within ordinary noncommercial expression, as corporate sponsorship extends further and further toward resembling user generated content, making it difficult to discern when content is sponsored and when it is not. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the …

Reconciling Fair Use And Trademark Use, Margreth Barrett

Faculty Scholarship

No abstract provided.

A Cause Of Action For "Passing Off/Associational Marketing", Margreth Barrett

Faculty Scholarship

No abstract provided.

Losing My Edge: The Copyright Implications Of Audio Blogging And Why Blogs Matter To The Music Industry, Steven M. Reilly

Vanderbilt Journal of Entertainment & Technology Law

In the past decade, the information distribution channels for music have changed dramatically. Not only have they largely moved from radio and print to online sources, but many audioblogs have formed to cover various niches according to the individual tastes of bloggers. This democratization of music criticism has been popular with listeners, as the information is easily and immediately available as well as tailored to a particular interest.

A defining feature of the audioblog is the inclusion of a downloadable MP3 in each post. In some cases, especially for more popular audioblogs, the download is approved by the copyright holder. …

Unveiling The Distinction Between The University And Its Academic Researchers: Lessons For Patent Infringement And University Technology Transfer, Jennifer Carter-Johnson

Vanderbilt Journal of Entertainment & Technology Law

This Article explores the idea that a faculty member acting in the role of an academic researcher in the scientific disciplines should be viewed in the context of patent law as an autonomous entity within the university rather than as an agent of the university. The structure of the university laboratory within the university and the social norms associated with the activities that members of the research laboratory conduct supports such a view. Additionally, the data from the implementation of the Bayh-Dole Act reveal that universities and faculty scientists have different goals and motivations regarding the transfer of new technology …

Promoting Creativity Through Copyright Limitations: Reflections On The Concept Of Exclusivity In Copyright Law, Christophe Geiger

Vanderbilt Journal of Entertainment & Technology Law

Do copyright limitations have the ability to promote creativity and innovation in an effective way? This question may initially sound astonishing because this incentive function is traditionally attributed to the exclusive rights and not to their limitations. However, it should not be forgotten that innovation often builds on existing creations. As a consequence, by depriving the copyright holder of the right to consent to certain acts, one might in turn encourage creative uses. In addition, it is possible for legislatures to draft limitations in order to guarantee that the permitted uses are not for free by providing for a just …

Guerrilla Radio: Has The Time Come For A Full Performance Right In Sound Recordings?, Lauren E. Kilgore

Vanderbilt Journal of Entertainment & Technology Law

Musicians and songwriters occupy a unique place in society as purveyors of composition and expression that impart an intangible benefit to society. Understanding the value of "Science and useful Arts," the Founders provided Constitutional protection for individuals spending time, money, and energy pursuing creative endeavors. Music defines generations and pivotal moments in history, and has rightfully taken its place at the forefront of human expression. When music began reaching the masses in the early twentieth century, both record labels and radio, even in its infancy, helped propel artists to the national spotlight. Johnny Cash, Ray Charles, and Pearl Jam all …

Libraries, Digital Content, And Copyright, Laura N. Gasaway

Vanderbilt Journal of Entertainment & Technology Law

Libraries use, acquire, create and host generate digital content. They digitize their existing collections of works such as letters, diaries and manuscripts and post them on library websites. Increasingly, libraries are utilizing digital technology to preserve library works which may or may not be made available to the public. Libraries also create, manage and host user generated content such as posts on discussion boards, blogs, wikis, RSS feeds, social bookmarking, tagging, and social networks. Libraries use user generated content for internal library purposes, such as displays and events and for teaching. Further, libraries often are asked to assist users who …

A Preliminary First Amendment Analysis Of Legislation Treating News Aggregation As Copyright Infringement, Alfred C. Yen

Vanderbilt Journal of Entertainment & Technology Law

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to stories posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy.

Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, …

Beyond Creativity: Copyright As Knowledge Law, Michael J. Madison

Vanderbilt Journal of Entertainment & Technology Law

The Supreme Court's copyright jurisprudence of the last 100 years has embraced the creativity trope. Spurred in part by themes associated with the story of "romantic authorship" in the 19th and 20th centuries, copyright critiques likewise ask, "Who is creative?" "How should creativity be protected (or not) and encouraged (or not)?" and "Why protect creativity?" Policy debates and scholarship in recent years have focused on the concept of creativity in framing copyright disputes, transactions, and institutions, reinforcing the notion that these are the central copyright questions. I suggest that this focus on the creativity trope is unhelpful. I argue that …

When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng

Vanderbilt Journal of Entertainment & Technology Law

This Article explores what authorship and creative production mean in the digital age. Notions of the author as the creator of the work have, since the passage of the Statute of Anne in 1710, provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author as both the creator and the producer of a work has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author's rights in his creation, and provide the incentive to create. They …

A Generation Of Racketeers? Eliminating Civil Rico Liability For Copyright Infringement, Julie L. Ross

Vanderbilt Journal of Entertainment & Technology Law

This article addresses questions raised in recent years by the increasingly severe penalties for copyright infringement, focusing on potential civil RICO liability as illustrated by a hypothetical peer-to-peer file-sharing example. Because civil litigation has been, by a wide margin, the favored means for pursuing copyright violators, the criminal copyright infringement statute remains largely untested, and the few cases that address its provisions offer conflicting interpretations. Now that RICO penalties are available in civil copyright infringement cases, courts faced with resolving the ambiguities in the application of the criminal copyright infringement provisions will need to reconcile divergent policies. To effectuate its …

Copyright As Censorship - Part Ii, James Gibson

Law Faculty Publications

2010 marks the 300th anniversary of the Statute of Anne, the English legislation that ushered in the modern era of copyright law. The Statute of Anne is celebrated for a number of reasons, and perhaps foremost among them is its rejection of copyright as an instrument of censorship. In a previous essay in this series, I discussed one way in which copyright law historically acted as an instrument of censorship: its refusal to grant protection to works that courts judged immoral. In this essay, I discuss copyright’s role in facilitating a different kind of censorship: lawsuits in which a copyright …

Formalities And Tiered Copyright Protection, James Gibson

Law Faculty Publications

In my last IP Issues entry, I discussed the advantages of reinstating formalities as prerequisites to copyright protection. In this entry, I will suggest one way in which this reinstatement might take place.

For most of modern copyright law’s existence, a work of expression received copyright protection only if the author complied with several formalities, such as registering the work with a government agency and placing a copyright notice on each copy of the work (the ubiquitous C-in-a-circle).

These formalities served two functions. The first is what I call the “threshold” function: They gave the author a chance to demonstrate …

Reproduction, Distribution, And "Making Available", James Gibson

Law Faculty Publications

When an individual makes a music or movie file available for downloading by others, without the permission of the copyright owner, is that an infringing act? Or does infringement take place only when the file is actually downloaded?

This thorny copyright issue is at the heart of much of the controversy over file-sharing. It’s relatively simple for a copyright owner to prove that a file has been made available for download, but it’s much harder to prove that a download has actually occurred. So if liability attaches to the mere act of “making available,” record labels and movie studios will …

A Training Ground For Contemporary Art: Massachusetts Museum Of Contemporary Art V. Biichel's Overly Broad Exclusion Of Artistic Collaborations, Sarah Louise Rector

University of Colorado Law Review

In 2007, the Massachusetts Museum of Contemporary Art sought a declaratory judgment permitting it to display an unfinished installation artwork by artist Christoph Buchel without Buchel's permission. Bchel attempted to stop the display by arguing that it violated his moral rights under the Visual Artists Rights Act ("VARA'). The United States District Court for the District of Massachusetts ruled in favor of the museum, holding in part that the "collaborative" nature of the installation's construction precluded VARA protection. The court analogized the artwork to a motion picture, which the Act's legislative history characterized as the type of collaborative effort VARA …

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

Publications

For centuries, the fair use doctrine has been the main--if not the exclusive--bastion of user rights. Originating in the English courts of equity, the doctrine permitted users, under appropriate circumstances, to employ copyrighted content without the rightsholder's consent. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of technological protection measures even for fair use purposes, has diminished the ability of fair use to counterbalance a copyright …