Intellectual Property Law Commons^™

Artistic Control After Death, Eva E. Subotnik

Washington Law Review

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of …

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Ryan T. Holte, Christopher B. Seaman

Washington Law Review

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first …

Show Me The Money: Determining A Celebrity’S Fair Market Value In A Right Of Publicity Action, Cody Reaves

University of Michigan Journal of Law Reform

As the power of celebrity continues to grow in the age of social media, so too does the price of using a celebrity’s name and likeness to promote a product. With the newfound ease of using Twitter, Facebook, and even print media to use a celebrity’s identity in conjunction with a product or company, right of publicity concerns arise. When a company uses a celebrity’s name and likeness without the celebrity’s authorization to market or sell a product, companies open themselves up to right of publicity suits. Many of these cases settle out of court. But when these cases do …

What Do Traditional Knowledge And Traditional Cultural Expressions Have To Do With Intellectual Property Rights, J. Janewa Osei-Tutu

Articles

No abstract provided.

Indefiniteness As An Invalidity Case, Janet M. Smith

William & Mary Law Review

No abstract provided.

The Field Of Invention, Saurabh Vishnubhakat

Faculty Scholarship

Federal courts can ill afford to ignore, assume, or improvise a pervasively important administrative power that the Patent Office exercises regularly and effectively: technology classification. This agency-court asymmetry has persisted for decades but has now become unmanageably problematic for two related reasons. First, Supreme Court guidance, patent reform legislation, and academic commentary have all broadly rejected long-standing patent exceptionalism in administrative law, while making the Patent Office a major substitute for federal courts in resolving patent disputes. Still, patent doctrine has been slow to correct, particularly in judicial deference to agency action. Second, criticisms of the patent system are highly …

Institutional Regime Shift In Intellectual Property Rights And Innovation Strategies Of Firms In China, Kenneth G. L. Huang, Xuesong Geng, Heli Wang

Research Collection Lee Kong Chian School Of Business

This study develops a novel conceptual framework to understand the differential impact of formal institutional regime shift in intellectual property rights on the innovation and patenting strategies of Chinese and Western firms operating in China. We argue that to the extent that Chinese firms have been deeply embedded in China’s informal institutions,they are less responsive to formal institutional changes than Western firms operating in China. Using the major China patent law reform of 2001 as an exogenous event, we find results consistent with our key arguments: With the strengthening of the previously weak (utility model) patent protection, Chinese firms are …

Tort Vision For The New Millenium: Strengthening News Industry Standards As A Defense Tool In Lawsuits Over Newsgathering Techniques, Michael W. Richards

Fordham Intellectual Property, Media and Entertainment Law Journal

“A Generation of Vipers,” proclaimed the cover story in The Columbia Journalism Review, as the nation’s most esteemed voice of media criticism evaluated the journalistic landscape of the mid- 1990s. The healthy skepticism that prompts journalism professors to instruct: “if your mother says she loves you, get a second source,” has been replaced by wholesale cynicism, suggests this critique. “It’s worth noting that, in several dozen interviews, no journalist reported becoming less cynical over a lifetime of reporting.” If cynicism has infected contemporary journalists, then it ap- pears the public has responded with cynicism of its own— apparently viewing the …

Biovail V. Hoechst Aktiengesellschaf, Inc: An Analysis Under The Sherman Act And The Noerr-Pennington Doctrine, John F. Resek Ph.D.

Fordham Intellectual Property, Media and Entertainment Law Journal

The Hatch-Waxman Act of 1984 regulates approval by the Food and Drug Administration (“FDA”) of generic counterparts to patented drugs. In a series of recent cases, large pharmaceutical companies have been accused of exploiting Hatch-Waxman in violation of the antitrust laws. In essence, the allegations are concerned with the large pharmaceutical companies that have paid manufacturers not to market inexpensive generic versions of patented drugs, thereby restraining trade and maintaining a monopoly. In the case of Biovail v. Hoechst Aktiengesellschaf, Inc., the generic drug manufacturer, Biovail, sued Hoechst Aktiengesellschaf (“Hoechst”), a pharmaceutical company, for antitrust violations resulting from Biovail’s effort …

The Nba’S Deal With The Devil: The Antitrust Implications Of The 1999 Nba-Nbpa Collective Bargaining Agreement, Dan Messeloff

Fordham Intellectual Property, Media and Entertainment Law Journal

A frigid dawn had not yet begun to rise when a group of weary negotiators concluded an eleven-hour, eleventh-hour meeting high above the streets of midtown Manhattan. At 7:00 p.m. on January 6, 1999, six men gathered to decide the fate of what had become, essentially over the course of the previous decade, an immensely successful element of American popular culture – professional basketball. At approximately 5:30 a.m. on January 7, 1999, an agreement was finally reached between the representatives of the National Basketball Association (“the NBA” or “the league”) and of the National Basketball Players’ Association (“the NBPA” or …

Rio Grande: The Mp3 Showdown At Highnoon In Cyberspace, Paul Veravanich

Fordham Intellectual Property, Media and Entertainment Law Journal

As the new millennium dawns, a battle is shaping up in cyber- space that may redefine the manner in which many people obtain copies of their favorite music. In one corner stands the record and music industry, seeking to protect their current distribution channels and to control the dissemination of their intellectual property over the Internet. In the other corner, a group consisting of Inter- net mavens, some musical artists, including acts ranging from in- dependent bands to well-established headliners, and the ever present cyberpirates, stand ready to exploit the Internet as a means to quickly and cheaply distribute and …

The Rational Basis Of Trademark Protection Revisited: Putting The Dilution Doctrine Into Context, Mathias Strasser

Fordham Intellectual Property, Media and Entertainment Law Journal

The adoption of the Federal Trademark Dilution Act (the “FTDA”) in 1995, which incorporated a federal dilution clause into the Lanham Act, was preceded by a great deal of debate. The question lying at the heart of the discussion was whether the dilution doctrine is consistent with sound trademark policy or whether the far-reaching entitlements that the FTDA affords the owners of famous marks have instead created “dilution” of a kind that Congress may not have envisaged: a blurring of the conceptual boundaries of trademark law. It turns out that this question has important implications on a number of trademark …

Trademark Practice In A Dynamic Economy: More Deals, More Laws, More Resources Than Ever For The Trademark Practitioner, Jill C. Greenwald, Richard Buchband, Brian S. Mudge, Susan Douglass

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Inter Partes Patent Reexamination Essay, Mark D. Janis

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Ieee-Sa Revised Patent Policy And Its Definition Of “Reasonable” Rates: A Transatlantic Antitrust Divide?, Nicolas Petit

Fordham Intellectual Property, Media and Entertainment Law Journal

The Institute of Electrical and Electronics Engineers Standards Association’s (“IEEE-SA”) updated patent policy and a business review letter issued by the United States Department of Justice (“DOJ”) have caused much discussion in the United States. The purpose of this Article is to assess whether a similarly lenient antitrust approach to Standard Setting Organizations’ (“SSOs”) rate-setting policies would prevail under the European Union’s (“EU”) competition rules. Recent EU competition case law has promoted a very hard line in the area of coordinated conduct. Cases such as Dole Food Company, Inc. v. European Commission, T-Mobile Netherlands BV v. Raad van bestuur van …

The Time Is Now: Why The United States Should Adopt The British Model Of Sports Betting Legislation, Zach Schreiber

Fordham Intellectual Property, Media and Entertainment Law Journal

Gambling has been the subject of controversy since its inception. While some claim that it is a “gentleman’s game” and a means of social entertainment, others argue that it is a sinful endeavor that enables corruption, scandal, and addiction. Today, there are several different types of gambling that occur in the United States—all with varying degrees of legality and regulation. For example, betting on horse racing is legal throughout the United States, and state-sanctioned lotteries are present in forty-four of fifty states.3 Commercial casinos, like those in Las Vegas and Atlantic City, are regulated on a state-by-state basis, and gambling …

Liar! Liar? The Defamatory Impact Of “Liar” In The Modern World, Roy S. Gutterman

Fordham Intellectual Property, Media and Entertainment Law Journal

Calling someone a liar is an age-old epithet. Depending on the context, calling someone a liar could be defamatory, causing harm to a reputation. But, more often than not, calling someone a liar may be simply an expression of opinion. In some settings, litigation surrounding the publication also implicates the First Amendment. In recent years, several courts have weighed in on this issue, some with conflicting outcomes. This Article examines whether accusations of dishonesty or lying in a modern media world has a defamatory impact.

The Split On The Rogers V. Grimaldi Gridiron: An Analysis Of Unauthorized Trademark Use In Artistic Mediums, Anthony Zangrillo

Fordham Intellectual Property, Media and Entertainment Law Journal

Movies, television programs, and video games often exploit trademarks within their content. In particular, various media often attempt to use the logos of professional sports teams within artistic works. Courts have utilized different methods to balance the constitutional protections of the First Amendment with the property interests granted to the owner of a trademark. This Note discusses these methods, which include the alternative avenues approach, the likelihood of confusion test, and the right of publicity analysis. Ultimately, many courts utilize the framework presented in the seminal Rogers v. Grimaldi decision. This test analyzes the artistic relevance of the trademark’s use …

Real Resources For Researching Ip Law, Anne Burnett

Presentations

A presentation on strategies for researching intellectual property law in classroom L. Sponsored by the Alexander Campbell King Law Library and the Intellectual Property Law Society.

Recreating Copyright: The Cognitive Process Of Creation And Copyright Law, Omri Rachum-Twaig

Fordham Intellectual Property, Media and Entertainment Law Journal

Copyright law reflects the intuitive understanding of creativity in the eyes of the law. This is because copyright law’s primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology’s understanding of the creative process? This Article examines whether copyright law is harmonious with cognitive psychology’s understanding of creativity. Some scholars posit that theories of creativity fit well with current copyright law. In an article published in the Harvard Law Review, Joseph Fishman, a scholar studying the relationship between intellectual property and creativity, argued that, based upon some ac- counts of creativity, copyright …

Open-Source Licensing And Business Models: Making Money By Giving It Away, Andrew J. Hall

Santa Clara High Technology Law Journal

Open-Source Licensing and Business Models: Making Money by Giving it Away

The New Foundations Of Open Source, Heather Meeker, Stephanie Petit

Santa Clara High Technology Law Journal

The New Foundations of Open Source

Software As Text, John Shaeffer

Santa Clara High Technology Law Journal

Software as Text

Trending @ Rwu Law: Professor Niki Kuckes's Post: 'Disparaging' Trademarks Meet The First Amendment 02-07-2017, Niki Kuckes

Law School Blogs

No abstract provided.

What's In A Name: Cable Systems, Filmon, And Judicial Consideration Of The Applicability Of The Copyright Act's Compulsory License To Online Broadcasters Of Cable Content, Kathryn M. Boyd

Duke Law & Technology Review

The way we consume media today is vastly different from the way media was consumed in 1976, when the Copyright Act created the compulsory license for cable systems. The compulsory license allowed cable systems, as defined by the Copyright Act, to pay a set fee for the right to air television programming rather than working out individual deals with each group that owned the copyright in the programming, and helped make television more widely accessible to the viewing public. FilmOn, a company that uses a mini-antenna system to capture and retransmit broadcast network signals, is now seeking access to the …

Legal And Ethical Issues Around Incorporating Traditional Knowledge In Polar Data Infrastructures, Teresa Scassa, Fraser Taylor

Copyright, Fair Use, Scholarly Communication, etc.

Human knowledge of the polar region is a unique blend of Western scientific knowledge and local and indigenous knowledge. It is increasingly recognized that to exclude Traditional Knowledge from repositories of polar data would both limit the value of such repositories and perpetuate colonial legacies of exclusion and exploitation. However, the inclusion of Traditional Knowledge within repositories that are conceived and designed for Western scientific knowledge raises its own unique challenges. There is increasing acceptance of the need to make these two knowledge systems interoperable but in addition to the technical challenge there are legal and ethical issues involved. These …

The Universal Destination Of Pharmaceutical Patents: Reflecting On Trips Through The Lens Of Aquinas, Sam Castree, Iii

Journal of Catholic Legal Studies

No abstract provided.

Copyright And Distributive Justice, Justin Hughes, Robert P. Merges

Notre Dame Law Review

Is our copyright system basically fair? Does it exacerbate or ameliorate

the skewed distribution of wealth in our society? Does it do anything at all

for disempowered people, people at the bottom of the socio-economic hierarchy?

In this Article we engage these questions. Our goal is to begin a more

comprehensive discussion of the effect the copyright system has on the allocation

of wealth in our society.

Scholarly Communication And The Dilemma Of Collective Action: Why Academic Journals Cost Too Much, John Wenzler

Copyright, Fair Use, Scholarly Communication, etc.

Why has the rise of the Internet—which drastically reduces the cost of distributing information—coincided with drastic increases in the prices that academic libraries pay for access to scholarly journals? This study argues that libraries are trapped in a collective action dilemma as defined by economist Mancur Olson in The Logic of Collective Action: Public Goods and the Theory of Groups. To truly reduce their costs, librarians would have to build a shared online collection of scholarly resources jointly managed by the academic community as a whole, but individual academic institutions lack the private incentives necessary to invest in a shared …

Future Of Innovation In Medicine: Incentives For New Medical Treatments And Global Health, Anon

Washington Journal of Law, Technology & Arts

A transcript of the symposium's proceedings.