Intellectual Property Law Commons^™

Says Who?: The Futility Of Authenticating Art In The Courtroom, Valerie Medelyan

UC Law SF Communications and Entertainment Journal

In a 1993 case involving the authenticity of a mobile by sculptor Alexander Calder, Judge Louis F. Oberdorfer bitterly conceded that if a prominent art expert testified that a work was a forgery, it would become so in the eyes of the market and its value would be destroyed. However, the judge went on to say, "this is not the market, but a court of law, in which the trier of fact must make a decision based upon a preponderance of the evidence." While acknowledging that the opinion of the more respected expert (that the Calder mobile was a fake) …

The Sound Recording Performance Rights At A Crossroads: Will Market Rates Prevail?, Jeffrey A. Eisenach

CommLaw Conspectus: Journal of Communications Law and Technology Policy (1993-2015)

Starting in the 1990s, Federal policy has moved in the direction of a market-oriented approach towards sound recording rights, beginning with Congress’ decision to create a sound recording performance copyright in 1995. In 1998, Congress provided that most statutory royalty rates, including the rates paid by webcasters like Pandora Radio, would be set using a market-based “willing buyer, willing seller” (“WBWS”) standard. Since then, the WBWS standard has been applied in several rate setting proceedings, but complaints from webcasters that the rates were “too high” have led to Congressional intervention and, ultimately, to adoption of rates below market levels. Now, …

Indistinguishable From Magic: A Wizard's Guide To Copyright And 3d Printing, James Grimmelmann

Faculty Scholarship

3D printing is a technology of such surprise and wonder that it verges on the magical. But what if 3D printers actually were magic? How would copyright law treat the wizards who used them? This Comment uses the magical analogy to make familiar doctrines strange, and a strange technology familiar.

This Comment was prepared as an invited comment on Kyle Dolinsky's "CAD’s Cradle: Untangling Copyrightability, Derivative Works, and Fair Use in 3D Printing" for the 2013 Washington and Lee Student Notes Colloquium.

League Ownership Of Teams, Conflicts Of Interest, And Personnel Exchanges, Lewis Kurlantzick, B.J. Pivonka

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Useful Articles In Copyright: Proposed Amendments To Section 101 And 114 - 2014, Wendy J. Gordon

Scholarship Chronologically

The origin of the definition probably lies with everyone's favorite protean decision, Baker v. Selden, 101 U.S. 99 (1879). For example, in 1924, the Second Circuit borrowed from Baker in upholding the copyright in 'Sparky,' a stuffed doll in the shape of a horse. The crucial distinction, which the court quoted from Baker, was the line between, on the one hand, "designs or pictorial illustrations addressed to the taste" whose "object [is] the production of pleasure in their contemplation," and, on the other hand, "methods of useful art [that] have their final end in application and use. "

Near-Field Communication Technology: Regulatory And Legal Recommendations For Embracing The Nfc Revolution, Allan Richarz

Canadian Journal of Law and Technology

Despite its ease and convenience, NFC technology raises a number of privacy issues. Chief among these concerns are the collection, retention, and usage of personally-identifying information contained within NFC-enabled devices by both private and public entities. Within that category, the most pressing privacy issues inherent in the collection and usage of such information relate to real-time tracking or after-the-fact habit profiling and identity theft. As well, privacy issues persist around the means used, if any, to secure and protect that information from unauthorized third parties both at the end-user and systemic database levels.

In light of these concerns, it is …

Design Law In The United States As Compared To The European Community Design System: What Do We Need To Fix?, Tiffany Mahmood

Fordham Intellectual Property, Media and Entertainment Law Journal

Now in their tenth year, European community designs were created to enhance harmonization in design protection across the Member States of the European Union (“EU”). The United States (“US”), in contrast, has only once expanded its protection for designs during that time, namely for vessel designs. Pushes have been made for further sui generis protection for Fashion law, but it is unclear why the US has not adopted a system similar to that of Europe, particularly taking into consideration the general uniformity between the two regions’ systems in other intellectual property areas. This Note looks to answer that question by …

Copyright Cowboys: Bringing Online Television To The Digital Frontier, Daniela Cassorla

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Worry Wort: A Path To Acquiring Trademark Rights In The Craft Brewing Industry, Ross Appel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Tarantino V. Gawker: The News, Hyperlinking, And Contributory Infringement Liability, Victoria Geronimo

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The New Era Of Biologic Regulation And Patenting Under The America Invents Act, David I. Rucker

Marquette Intellectual Property Law Review

None.

Revenge Porn And Freedom Of Expression: Legislative Pushback To An Online Weapon Of Emotional And Reputational Destruction, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Anti-Economy Of Fashion; An Openwork Approach To Intellectual Property Protection, Amy L. Landers

Fordham Intellectual Property, Media and Entertainment Law Journal

Fashion’s cultural connections provide the groundwork for a theory to resolve the critical questions of protection for works that draw strongly on exogenous inputs. This article proposes that narrow protection for fashion is both economically justified, theoretically sound, and beneficial to the field because it facilitates spillovers in a manner that allows others to create the endless variations that are the lifeblood of this vibrant industry. Such protection relies on a theory of openworks, which applies to designs that have a high level of input from outside of the creator’s realm of activity. In fashion, inspiration that derives from the …

Models Of Confusion: Strutting The Line Between Agent And Manger, Employee And Independent Contractor In The New York Modeling Industry, Ariel Sodomsky

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Taxonomy Of Borrowing, Jacqueline D. Lipton Ph.D.

Fordham Intellectual Property, Media and Entertainment Law Journal

While copyright infringement is a legal wrong, plagiarism is a breach of academic and market practices. However, few authors of literary works truly understand the difference between the two. Copyright law seeks to protect economic interests in an underlying work, while plagiarism—and in countries where moral rights are robust, associated legal rights—protect the integrity of the work and the author’s claim to the work. The digital age has refocused attention on the kinds of claims an author or copyright holder might make with respect to unauthorized uses of a literary work. The ease with which a digital work may be …

Food Art: Protecting "Food Presentation" Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L. 1 (2014), Cathay Smith

UIC Review of Intellectual Property Law

In 2006, a scandal broke in the culinary world. It was alleged that Robin Wickens, chef at (now closed) Interlude restaurant in Melbourne, Australia, had copied dishes by renowned American chefs Wylie Dufresne, Jose Andres, and Grant Achatz. It is not uncommon for chefs to borrow recipes from other chefs, and there has been a long culture of sharing in the cuisine industry. However, what made Wickens’ actions scandalous was that he had purportedly copied the artistic presentation and plating of other chefs’ dishes, not just their recipes.

This Article examines whether chefs can protect the artistic presentation or plating …

3(D) View Of India’S Patent Law: Social Justice Aspiration Meets Property Rights In Novartis V. Union Of India & Others, 13 J. Marshall Rev. Intell. Prop. L. 719 (2014), Saby Ghoshray

UIC Review of Intellectual Property Law

Not many constitutional decisions from developing countries find themselves at the center of global debate like the Indian Supreme Court’s Novartis decision invalidating the Gleevec patent. The patent was invalidated under amended Section 3(d) of the Indian Patents Act, which was amended to address some of the concerns of imbalance between the maximalist and minimalist cultures in the pharmaceutical context. Section 3(d) of the Indian Patent Act introduced a new threshold of patent eligibility for pharmaceutical innovation that requires applicants to demonstrate enhanced efficacy of their products. The objective of this Article is to get beyond the reactionary reviews of …

A Comparative Study Of Patent Infringement Remedies Related To Non-Practicing Entities In The Courts Of Canada, The United Kingdom, And The United States, Aleksandar Nikolic

LLM Theses

This work examines the scope of non-practicing entity behavior and whether the debate on remedies can lead to changes that encourage the goals behind a patent system. Innovation is often the stated goal but the significance of innovation commercialization is often ignored. Furthermore, there has been an increase in business models that involve alternate means of monetizing patents, not all of which were contemplated in the purpose of the patent system. Using the goals of the patent system as a backdrop, this work provides an overview of the impact of remedies available to courts in Canada, the United Kingdom, and …

In Re Mstg And The Shifting Role Of Litigation-Related Patent Licenses In Reasonable Royalty Rate Determinations, Whitney Levandusky

Journal of Business & Technology Law

No abstract provided.

The Infringement Continuum, Bernard Chao

Sturm College of Law: Faculty Scholarship

For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations, suggesting a relatively narrow invention. But claims are drafted far more broadly. They frequently encompass unforeseen variations and even cover after-arising technology.

Although there are numerous existing doctrines that try to prevent claims from straying too far from their specification, these doctrines offer binary outcomes ill suited for patent law. Under these doctrines, as a claim encompasses subject matter further …

A Case Study Of Patent Litigation Transparency, Bernard Chao, Derigan Silver

Sturm College of Law: Faculty Scholarship

By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …

Patent Imperialism, Bernard Chao

Sturm College of Law: Faculty Scholarship

With a few narrow exceptions, U.S. patent law concerns itself with activity that either occurs within this country’s borders or crosses its borders. In the typical case, that means that a patentee can recover lost profits or reasonable royalties based on the domestic sales of infringing products. However, patentees have begun to successfully advance a new and creative approach that this Essay labels the “worldwide causation” theory. So long as some domestic infringement can be said to cause sales overseas, patentees argue that there should be no territorial limitation on their recovery, allowing recovery for damages suffered anywhere in the …

Shutting Down The Ex Parte Party: How To Keep Bittorrent Copyright Trolls From Abusing The Federal Court’S Discovery System, 31 J. Marshall J. Info. Tech. & Privacy L. 105 (2014), Jennifer L. Hunter

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Right To Be Forgotten: Forced Amnesia In A Technological Age, 31 J. Marshall J. Info. Tech. & Privacy L. 133 (2014), Robert Bolton

UIC John Marshall Journal of Information Technology & Privacy Law

In the modern era, the connection between technology and one’s personal life has increased the number of moments recorded for posterity. While in many circumstances this is an ideal opportunity for fond recollection, it has the downside of displaying for others our less flattering moments. Because the Internet has such a wide scope, once something has entered its domain, it is virtually impossible to permanently remove. With a public increasingly perceiving this winnowing of privacy as a negative tendency, legislators both at home and abroad have made proposals that attempt to place restrictions on what content social media is allowed …

Repurposing - Finding New Uses For Old (And Patented) Drugs: Bridging The "Valley Of Death," To Translate Academic Research Into New Medicines, Daniel S. Sem

Marquette Intellectual Property Law Review

None.

Ip Policy Forum: Foreword From The Editors

Marquette Intellectual Property Law Review

None.

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Marquette Intellectual Property Law Review

None.

Diagnostic Patents At The Supreme Court, Arti K. Rai

Marquette Intellectual Property Law Review

None.

Trademarks Under The North American Free Trade Agreement (Nafta), With References To The Current Mexican Law, Roberto Rosas

Marquette Intellectual Property Law Review

None.

Territoriality Challenges In Protecting Trademark Interests In The System Of Generic Top-Level Domains (Gtlds), Jesse Kim

Marquette Intellectual Property Law Review

None.