Intellectual Property Law Commons^™

Panel 2: Liability Issues And 3d Printing, Mark Bartholomew, Gianni P. Servodidio, Katherine Strandburg, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Disciplining The Right Of Publicity's Nebulous First Amendment Defense With Teachings From Trademark Law, Wee Jin Yeo

Cardozo Arts & Entertainment Law Journal

Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities 'publicity rights against the public's rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance.

This Article suggests that the core normative justification behind the right of publicity is the prevention of unjust enrichment. Thus, following recent developments …

The Trans-Pacific Partnership:The Death-Knell Of Generic Pharmaceuticals?, Alexander Stimac

Vanderbilt Journal of Transnational Law

As global commerce continues to expand, many states find international trade agreements to be a useful tool to facilitate this continued expansion. Trade agreements permit developing or poorer nations to establish robust, mutually beneficial trade relationships with powerful economies such as the United States. In the face of regional competition from China, several nations bordering the Pacific Ocean, including the United States, have reached a far-reaching trade agreement called the Trans-Pacific Partnership (TPP). This Note will focus on one particular piece of the TPP: the pharmaceutical trade and the international availability of generic medicines. The TPP has the potential to …

Reconsidering Copyright’S Constitutionality, Graham J. Reynolds

Osgoode Hall Law Journal

In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [Michelin], Justice Teitelbaum of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms and that, even if they did, these provisions could be justified under s 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these conclusions …

The Objectives And Principles Of The Wto Trips Agreement: A Detailed Anatomy, Alison Slade

Osgoode Hall Law Journal

Article 7 (Principles) and Article 8 (Objectives) are prominent within the text of the WTO TRIPS Agreement, yet have figured sparingly in the reasoning of the Dispute Settlement Body (DSB). This discrepancy is accentuated when considered in light of three key factors. First, the pioneering step taken by TRIPS negotiators to include broad declarations of intent within the operative text. Second, the 2001 reinforcement given to these provisions in the Doha Declaration on TRIPS and Public Health. Finally, the verbatim replication of these provisions within other international IP instruments, notably, the Trans-Pacific Partnership, the Anti-Counterfeiting Trade Agreement and the WIPO …

Unlock The Music: Replacing Compulsory Music Licenses With Free Market Negotiation, Karen (Kai-Wen) Hsieh

Cardozo Journal of Conflict Resolution

To understand the impact that compulsory licenses have on the music industry, Section II of this Note focuses on the three major licenses for music compositions-the mechanical license, the performing rights license, and the sync license. Section III discusses why compulsory licenses no longer benefit the music industry and why free market negotiation is the superior approach. This section will also address the potential problems arising from free market negotiation, such as the power imbalance in negotiations between major record labels and new artists. Finally, Section IV proposes online mediation to remedy the difficulties that may occur due to unrestricted …

Time To Pay College Athletes? Why The O'Bannon Decision Makes Pay-For-Play Ripe For Mediation, Andrew Steckler

Cardozo Journal of Conflict Resolution

Between the mounting pressure of public opinion, and continuing litigation in which various plaintiffs are seeking to take advantage of the player-friendly language in O'Bannon, the power dynamic in college athletics is shifting back towards the players. The previously uneven playing field is leveling. This Note examines how to inject mediation into the "pay-for-play" debate to better serve the interests of the NCAA, the major conferences (Big 10, SEC, ACC, Big 12, and Pac-12), and the student-athletes in the wake of O'Bannon. While litigation was necessary to start the process, ultimately, it will be up to the NCAA …

Did Vimeo Kill The Radio Star? Dmca Safe Harbors, Pre-1972 Sound Recordings & The Future Of Digital Music, Tatsuya Adachi

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Offensive Linemen: How Pro Football, Inc.'S Responses To The Cancellation Of The Redskins Registrations Should Be Incorporated Into The Uspto's Future Analyses Of Disparaging Trademarks, Stella Silverstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introductions, Matthew Diller

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Content Creators, Virtual Goods: Who Owns Virtual Property?, Kenneth W. Eng

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Copyright In Pantomime, Brian L. Frye

Cardozo Arts & Entertainment Law Journal

Why does the Copyright Act specifically provide for the protection of "pantomimes"? This Article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of "les pantomimes" and "entertainments in dumb show" in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to '"pantomimes " was forgotten. This Article argues …

Katherine Heigl V. Duane Reade: The Predicted Outcome And Insight Into New York Publicity Rights, Amy Delauter

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Biblical Fool And The Brander: The Law And Economics Of Propertization In American Trademark Law, William P. Kratzke

Cardozo Arts & Entertainment Law Journal

Isaiah 35:8, which tells of 'fools" upon a highway who shall not err, became authority for the position that the Federal Trade Commission (FTC) should protect fools from deception. This Article examines the biblical passage in context and concludes that it does not support protection of unthinking, credulous people. Ensuing FTC orders based on witnesses' speculation of how fools would construe particular claims actually harmed fools. The FTC retreated Unfortunately, the objective of protecting fools from deception has taken over § 43(a) Lanham Act jurisprudence-but now sellers speculate in competitor lawsuits how fools will construe competitors' claims and undertake to …

Copyright Piracy And The Indian Film Industry: A "Realist" Assessment, Arpan Banerjee

Cardozo Arts & Entertainment Law Journal

In India, the academic discourse surrounding intellectual property (IP) has been marked by great skepticism. Global IP laws have been viewed as a Western imposition detrimental to national interests. In this paper, I will make the case for a "realist" approach to film piracy in India, i.e., an approach that is rooted in legal pragmatism and draws from the New Legal Realism (NLR) movement. I will suggest a rough template for such an approach, referring to seven broad elements: a) international relations realism; b) contextualization of IP; c) contextualization of copyright; d) the views and interests of the film industry …

Patent System Manipulation: Hedge Funds Abusing Ipr, Poor Patent Quality & Pharmaceutical Monopolies, Kenneth J. Costa

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Facilitating Competition By Remedial Regulation, Kristelia A. García

Publications

In music licensing, powerful music publishers have begun—for the first time ever— to withdraw their digital copyrights from the collectives that license those rights, in order to negotiate considerably higher rates in private deals. At the beginning of the year, two of these publishers commanded a private royalty rate nearly twice that of the going collective rate. This result could be seen as a coup for the free market: Constrained by consent decrees and conflicting interests, collectives are simply not able to establish and enforce a true market rate in the new, digital age. This could also be seen as …

Trademark Exhaustion And The Internet Of Resold Things, Yvette Joy Liebesman

All Faculty Scholarship

Over the past ten years, casual resellers have migrated from garage sales, swap meets, and classified ads to eBay and Craigslist, turning side hobbies into lucrative businesses. Today, 30 million new ads are posted on Craigslist every month, and six million new listings are posted daily on eBay.¹ The explosive online market has affected the sales of new goods, troubling manufacturers² who seek to curtail the growth of this secondary market through several avenues—some legitimate, and others not so much. For example, to combat diversion to resellers outside of its official distribution chain, Tiffany, Inc., the well-known jeweler, …

Remuneration Of Authors Of Books And Scientific Journals, Translators, Journalists And Visual Artists For The Use Of Their Works, Europe Economics, Lucie Guibault, Olivia Salamanca, Directorate-General For Communications Networks, Content And Technology (European Commission)

Reports & Public Policy Documents

Europe Economics and the Institute for Information Law at the University of Amsterdam were commissioned by DG Connect to undertake a study on the remuneration of authors of books and scientific journals, translators, journalists and visual artists (all groups are hereafter referred to as “authors”) for the use of their freelance works. The overarching objectives of this study are to analyse the current situation regarding the level of remuneration paid to authors in order to compare the existing national systems of remuneration for authors and identify the relative advantages and disadvantages of those systems for them. We also aim to …

The Court And The Cannonball: An Inside Look, Stephen Wermiel, Lee Levine

Scholarly Articles in Law Reviews & Journals

As lawsuits over the right of publicity proliferate among athletes and other celebrities, there is renewed interest, by litigants and judges alike, in the one decision by the U.S. Supreme Court that addresses a tort action arising from a "publicity" related claim, Zacchini v. Scripps-Howard Broadcasting Co. Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court justices' available papers shows that the Court did not view the case as presenting the type of claim that has become …

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

Patent "Trolls" And Claim Construction, Greg Reilly

Faculty Scholarship

This Essay explores the largely overlooked relationship between claim construction and patent assertion entities (patent “trolls”), finding that claim construction problems and trends benefit patent assertion entities. First, the Federal Circuit is deeply divided as to the proper approach to claim construction. This split is a significant contributor to uncertain patent scope, which is widely-recognized as a core reason for the rise and success of patent assertion entities. Second, case law and commentary increasingly endorse an approach to claim construction that relies on the “general meaning” in the technical field with limited reliance on the patent itself. This approach increases …

3d Printing: Digital Infringement And Digital Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

3D printing is a rapidly-growing technology that enables creation of three dimensional solid objects made from a digital Computer Aided Design ("CAD") file. Patent law issues are particularly relevant and uncertain in the realm of 3D printing. Thus, analysis of the Patent Act is needed to better understand direct infringement (of either the use of a 3D printer, of a CAD file, or under the doctrine of equivalents), indirect infringement, and contributory infringement in the context of 3D printing. A key issue in this analysis is whether a CAD file should be viewed as making the object itself since 3D …

The More Copyright Laws Change, The More Digital Challenges Stay The Same, Peter K. Yu

Faculty Scholarship

This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades.

Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the …

Tagging The Lanham Act: Protecting Graffiti Art From Willful Infringement, Maribeth A. Smith

Brooklyn Law Review

Graffiti has transformed over the last several decades from a sign of urban blight to a sign of artistic expression. As a result of this shift, clothing designers and other players in fashion have begun to use images of “street art” as part of their lines. This leaves graffiti artists with no way of protecting their art, especially because of the illegal nature of graffiti. This note examines current sources of law that can be used to protect artists from this infringement. Artists have unsuccessfully argued under both moral rights and copyright theories. However, copyright and moral rights analyses do …

You(Tube), Me, And Content Id: Paving The Way For Compulsory Synchronization Licensing On User-Generated Content Platforms, Nicholas Thomas Delisa

Brooklyn Law Review

The changing landscape of digital media technology makes it increasingly difficult for owners of copyrighted music to monitor how their works are being exploited across the Internet. This is especially true of user-generated content (UGC) platforms—websites and applications such as Facebook, YouTube, and Snapchat, where content is created or uploaded predominantly by users. These services pose a special problem to copyright owners because, instead of content being uploaded from a single source that is easily sued and has deep pockets, content is uploaded by users. Users are a troublesome group because they are innumerable, sometimes anonymous, and mostly click on …

Public Interest Over Private Prejudice? The Public Interest Exception To The Defense Of Laches And The Fourth Circuit's Clean Slate, Christopher A. Mull

Brooklyn Law Review

The trademark cancellation petitions and subsequent appeals surrounding the Washington Redskins’ allegedly disparaging trademarks lay useful groundwork in determining the applicability of the equitable defense of laches in the face of a purported greater public interest. The Lanham Act gives individuals the power to petition to cancel federally registered marks that may be disparaging to a group of individuals, while also permitting trademark holders to assert the equitable defense of laches in the event of unreasonable delay and consequential prejudice. In Pro-Football, Inc. v. Harjo, the District Court for the District of Columbia and the D.C. Circuit held that …

Parody And The Fair Use Defense: The Best Way To Practice Safe Sex With All Your Favorite Characters, Jessica N. Schneider

Brooklyn Law Review

The copyright fair use test balances the copyright holder’s right to exclude others from using its work against the secondary user’s First Amendment right, yet this test is often too unpredictable and favors misappropriation, even the most commercial kind. The test is weakest when used to determine the legality of sexual parodies. The sexual nature of the parody should receive statutory consideration in the balancing test because vulgar and lewd speech is often deemed “low value” speech, and therefore the secondary user’s First Amendment right is weaker compared to the copyright owner’s right to exclude. Courts already consider the sexual …

Drugs, Drugs Everywhere But Just Not For The Poor, Srividhya Ragavan

Faculty Scholarship

The objective for this article is to understand the legitimacy and limitations of US involvement in another country’s sovereign actions taken expressly in the public interest, or to protect public health, such as the compulsory licensing of pharmaceuticals.

Five Decades Of Intellectual Property And Global Development, Peter K. Yu

Faculty Scholarship

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.

On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …