Intellectual Property Law Commons^™

Provisional Injunctive Relief Under The Utsa And The Dtsa In Federal Court New Product Cases, Richard F. Dole Jr.

SMU Science and Technology Law Review

No abstract provided.

When Miracle Cures Go Bad: Regulators’ Responses To Unproven Direct-To-Consumer Stem Cell Therapies, Sydney Hope

SMU Science and Technology Law Review

No abstract provided.

Fair Use And Machine Learning, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

There would be a beaten path to the maker of software that could reliably state whether a use of a copyrighted work was protected as fair use. But applying machine learning to fair use faces considerable hurdles. Fair use has generated hundreds of reported cases, but machine learning works best with examples in greater numbers. More examples may be available, from mining the decision making of web sites, from having humans judge fair use examples just as they label images to teach self-driving cars, and using machine learning itself to generate examples. Beyond the number of examples, the form of …

Vaccines And Ip Preparedness In The Coronavirus Outbreak, Ana Santos Rutschman

All Faculty Scholarship

The COVID-19 pandemic has shed renewed light on the importance of research and development (R&D) on biopharmaceutical products needed to prevent or lessen the burden posed by outbreaks of infectious diseases. Among these, the need for new vaccines has become of paramount importance. While a race to develop different types of vaccines unfolds at unusual speed, there are still significant shortcomings in the ecosystem that leads to the production and dissemination of vaccines targeting infectious diseases like COVID-19.

The Intellectual Property Of Vaccines: Takeaways From Recent Infectious Disease Outbreaks, Ana Santos Rutschman

All Faculty Scholarship

This Essay examines the ways in which intellectual property regimes influence incentives for the development of new vaccines for infectious diseases. Charting the tension between market forces and public health imperatives, the Essay considers an emerging solution to the long-standing problem of insufficient incentives for vaccine research and development: the rise of public-private partnerships in the health space. The Essay provides a short case study on CEPI, a large-scale public-private partnership dedicated exclusively to funding research on vaccines for infectious diseases. In exploring how the interaction between intellectual property rules and practices affect vaccine innovation, the Essay offers illustrations from …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

People Not Machines: Authorship And What It Means In International Copyright Law, Jane C. Ginsburg

Faculty Scholarship

This chapter recapitulates Professor Ricketson’s analysis in his 1992 Manges Lecture at Columbia Law School, presciently titled 'People or Machines: The Berne Convention and the Changing Concept of Authorship'. As Ricketson systematically developed the inquiry, it became clear that ‘People or Machines’ in fact meant ‘People Not Machines’. This chapter considers whether, more than twenty-five years later, subsequent technological developments warrant reconsideration of the human authorship premise underlying the Berne Convention. If that premise holds firm, the next question is whether non-human-generated outputs require some form of intellectual property protection. Any such regime, it should be noted, would fall outside …

Who’S Afraid Of Section 1498? A Case For Government Patent Use In Pandemics And Other National Crises, Christopher J. Morten, Charles Duan

Faculty Scholarship

COVID-19 has created pressing and widespread needs for vaccines, medical treatments, PPE, and other medical technologies, needs that may conflict – indeed, have already begun to conflict – with the exclusive rights conferred by United States patents. The U.S. government has a legal mechanism to overcome this conflict: government use of patented technologies at the cost of government-paid compensation under 28 U.S.C. § 1498. But while many have recognized the theoretical possibility of government patent use under that statute, there is today a conventional wisdom that § 1498 is too exceptional, unpredictable, and dramatic for practical use, to the point …

Letter To Council Members Regarding Council Draft 4, Jane C. Ginsburg

Faculty Scholarship

We understand that the ALI Council will consider Council Draft 4 (CD4) of the Restatement of the Law, Copyright (Copyright Restatement) project at its meeting on January 16-17, 2020. We appreciate the opportunity to provide comments on CD4. We hope that you will give careful consideration to these comments and send CD4 back to the Reporters to address the problems we describe below.

Super-Statutory Contracting, Kristelia García

Publications

The conventional wisdom is that property rules induce more—and more efficient—contracting, and that when faced with rigid property rules, intellectual property owners will contract into more flexible liability rules. A series of recent, private copyright deals show some intellectual property owners doing just the opposite: faced with statutory liability rules, they are contracting for more protection than that dictated by law, something this Article calls “super-statutory contracting”—either by opting for a stronger, more tailored liability rule, or by contracting into property rule protection. Through a series of deal analyses, this Article explores this counterintuitive phenomenon, and updates seminal thinking on …

Privative Copyright, Shyamkrishna Balganesh

Faculty Scholarship

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Common Interest Doctrine In Ip Transactions, John C. Reich, Sangki Park

Cybaris®

No abstract provided.

The Power Of Social Media As An Evolving Force And Its Impact On Intellectual Property, Whitney N. Alston

Cybaris®

No abstract provided.

Creation, Destruction, And The Future Of Fashion, Susan Scafidi

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Fashion(Ing) A Political Statement: A Review Of The Legal & Social Issues That Arise From Banned Political Clothing And Other Controversial Fashion Items In Light Of The U.S. Supreme Court’S Decision In Minnesota Voters Alliance V. Mansky, Joyce Boland-Devito

Fordham Intellectual Property, Media and Entertainment Law Journal

Does the U.S. Supreme Court believe that the Free Speech Clause of the First Amendment includes freedom of expression in our clothing? The answer is yes! This Article will show that fashion can make a strong political statement (or misstatement) in the court of law as demonstrated by the U.S. Supreme Court’s recent decision striking down Minnesota’s ban on wearing “political apparel” to vote in Minnesota Voters Alliance v. Mansky. The discussion of this case will include quotes from J. David Breemer, Esq., the attorney who represented the Minnesota Voters Alliance. This Article will examine related U.S. Supreme Court …

Ai-Generated Fashion Designs: Who Or What Owns The Goods?, Caen A. Dennis

Fordham Intellectual Property, Media and Entertainment Law Journal

As artificial intelligence (“AI”) becomes an increasingly prevalent tool in a plethora of industries in today’s society, analyzing the potential legal implications attached to AI-generated works is becoming more popular. One of the industries impacted by AI is fashion. AI tools and devices are currently being used in the fashion industry to create fashion models, fabric designs, and clothing. An AI device’s ability to generate fashion designs raises the question of who will own the copyrights of the fashion designs. Will it be the fashion designer who hires or contracts with the AI device programmer? Will it be the programmer? …

Substantial Similarity And Junk Science: Reconstructing The Test Of Copyright Infringement, Robert F. Helfing

Fordham Intellectual Property, Media and Entertainment Law Journal

As the standard of copyright infringement, “substantial similarity” is an ambiguous concept that produces unpredictable decisions often inimical to the purposes of copyright law. This Article explains the deficiencies of infringement tests based upon that standard. It also provides an innovative interpretation of copyright protection and presents a new test of infringement designed to directly determine whether that protection has been violated.

Tear Down This Wall?: The Destruction Of Sanctioned Street Art Under U.S. And Italian Law, Sara Rosano, Birgit Kurtz

Fordham Intellectual Property, Media and Entertainment Law Journal

The United States and Italy are important countries for art and artists, including “street art”—also known as “aerosol art.” How does the law treat street artists in the two countries? Specifically, what are the legal consequences if an artist creates aerosol art on a wall or building with the property owner’s permission, and the property owner tears down the wall or building, thus destroying the artwork? In the United States, the 2018 decision in the 5Pointz case provided a detailed analysis of the applicable law; the court found in favor of a group of aerosol artists against the property owner. …

Caveat Vendor: A Call To Reform The Scope Of Rights Of Withdrawal For Off-Premises Contracts Under U.S. Consumer Protection Laws With Respect To The Auction Of Art, Sarah Fabian Maramarosy

Fordham Intellectual Property, Media and Entertainment Law Journal

As sales of art at auction become increasingly popular and accessible, an overlooked consumer right may cause sellers of art to get “burned.” At its core, the auction process is intended to establish the price of a difficult-to-value object of art, therefore, the underlying philosophy of an auction is that sales are final. However, cooling-off rules in U.S. off-premises contracts are broad enough that auction house contracts can potentially fall within the ambit of these rules, giving rise to the consumer’s right to cancel the contract.

Arguably, permitting consumers to cancel in remorse undermines the premise of an auction and …

Anything You Can Use, I Can Use Better: Examining The Contours Of Fair Use As An Affirmative Defense For Theatre Artists, Creators, And Producers, Benjamin Reiser

Fordham Intellectual Property, Media and Entertainment Law Journal

Broadway is booming. In a post-Hamilton world, ticket sales and attendance records for the commercial theatre industry continue to break season after season. At the same time (and perhaps not so coincidentally), litigation against theatre artists, creators, and producers has surged, especially in the realm of copyright infringement. Many theatre professionals accused of infringement in recent years have employed the doctrine of fair use—codified at 17 U.S.C. § 107—as an affirmative defense against such claims. This Note explores cases involving theatre professionals in which fair use was examined and contends that they collectively reflect broader historical trends in fair …

The Prison Of Convenience: The Need For National Regulation Of Biometric Technology In Sports Venues, Kirsten Flicker

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, biometric data has crept its way into sports venues. In 2015, Major League Baseball began to use fingerprinting at stadium entrances. More recently, reporters have alerted spectators to the use of facial recognition technology in arenas such as Madison Square Garden. Proponents of these developments insist that the technology conveniences spectators, increases venue security, and enhances the overall spectator experience. Yet these claims fail to take into account the possibility of irremediable data breaches, the inaccuracies in facial recognition technology, and the privacy and unfair and deceptive trade practice concerns this technology raises. Further, there is an …

The All Substantial Rights Doctrine: A Second Look, Mark J. Abate, James Breen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Trademark Vigilance In The Twenty-First Century: An Update, Peter S. Sloane

Fordham Intellectual Property, Media and Entertainment Law Journal

The trademark laws impose a duty upon brand owners to be vigilant in policing their marks, lest they be subject to the defense of laches, a reduced scope of protection, or even death by genericide. Before the millennium, it was relatively manageable for brand owners to police the retail marketplace for infringements and counterfeits. The Internet changed everything.

In ways unforeseen, the Internet has unleashed a tremendously damaging cataclysm upon brands—online counterfeiting. It has created a virtual pipeline directly from factories in China to the American consumer shopping from home or work. The very online platforms that make Internet shopping …

Fre-Bird: An Evidentiary Tale Of Two Colliding Copyrights, Daniel Abowd

Fordham Intellectual Property, Media and Entertainment Law Journal

Sound recordings are not musical compositions. Sound recordings embody musical compositions. Thus, when sound recordings appear in musical composition infringement trials, they do so as an imperfect facsimile of the composition they actualize. As a result, they can confuse and mislead juries tasked only with evaluating the similarity of the underlying composition. On the other hand, music is an aural medium: how can juries be expected to compare two songs without listening to their commercial embodiments?

Several recent cases have hinged on the admissibility of sound recordings in composition infringement trials. In doing so, they have implicated three fundamental questions: …

Protectable “Art”: Urinals, Bananas, And Shredders, Richard H. Chused

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative souls have long played with our imaginations, as well as our tastes, about what art may be. The resulting absurdist, dada, and everyday object art forces us to step back and ask a few intellectual property questions about what this art has done, undone, or reconstructed in the copyright world. The Copyright Act grants protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This Article explores how pranksterism, eccentricity, …

Introduction: What Is Real? Authenticity, Transparency, And Trust In The Digital Age Of Fashion, Joseph M. Forgione

NYLS Law Review

No abstract provided.

Towards Truth In Influencing: Risks And Rewards Of Disclosing Influencer Marketing In The Fashion Industry, Megan K. Bannigan, Beth Shane

NYLS Law Review

No abstract provided.

The Copyrightability Of Fictional Characters: Why Harry Potter, Arya Stark, And Matrim Cauthon Are Copyrightable, Justin Scharff

Touro Law Review

No abstract provided.

Copyright And Economic Viability: Evidence From The Music Industry, James Hicks, Kristelia García, Justin Mccrary

Scholarship@WashULaw

Copyright provides a long term of legal excludability, ostensibly to encourage the production of new creative works. How long this term should last, and the extent to which current law aligns with the economic incentives of copyright owners, has been the subject of vigorous theoretical debate. We investigate the economic viability of content in a major creative industry—commercial music—using a novel longitudinal dataset of weekly sales and streaming counts. We find that the typical sound recording has an extremely short commercial half-life—on the order of months, rather than years or decades—but also see evidence that subscription streaming services extend the …

The Hidden Transactional Wisdom Of Media Discrimination In Pre-Awcpa Copyright, Kevin Emerson Collins

Scholarship@WashULaw

Media neutrality in copyright’s subject matter means that works of authorship are protected against copying, or not, regardless of the tangible medium in which they are fixed. For example, the same features of a sculptural work are protected regardless of whether they are fixed in a statue or a photograph of a statue. Media neutrality in subject matter is a fundamental and largely unquestioned copyright principle with a firm policy basis under copyright’s dominant incentive-to-create theory. Media discrimination in subject matter undermines in arbitrary ways authors’ ability to recoup their creativity costs over the sale of multiple copies.

This Article …