Intellectual Property Law Commons^™

Spotify's Bundle Battle: Uncovering The Flaws Of The Music Modernization Act And The Struggle For Fair Royalties In The Streaming Era, Jessica Jilla

Cardozo Arts & Entertainment Law Journal

The note argues that Section 115 of the Music Modernization Act (MMA) is fundamentally flawed and fails to protect songwriters and publishers from systemic inefficiencies and exploitation. It contends that the current framework is too rigid to address emerging digital business models, necessitating a hybrid restructuring of the Mechanical Licensing Collective (MLC) and the statutory licensing system to ensure equitable compensation.

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Power Play: The Battle For Copyright Control In Emulation, Ryan Borja

Cardozo Arts & Entertainment Law Journal

The note argues that the current legal framework prioritizes commercial interests and developer rights over the preservation of older video games. To reconcile the tension between copyright protection and the public interest in cultural preservation, the analysis proposes legislative solutions such as compulsory licensing schemes or the creation of a dedicated federal preservation agency.

Some Respect Reserved? Survey Experiment Insights On The Perception Of Creative Commons And Copyright Infringement, Thomas H. Rousse

Cardozo Arts & Entertainment Law Journal

Since its inception, Creative Commons has introduced new ways for creators to grant licenses to the public without cost or the need for negotiation by breaking up rights provided by copyright and making a subset of those rights available to anyone willing to abide by the conditions of the license. Its widespread adoption has democratized open licensing for creators beyond the software context these licenses originated within. Although the success of Creative Commons as a community is plain, relatively little information is available about its perception by the general public. Aggressive litigation by Creative Commons licensors has put the organization …

Separation Of Copyright Powers, Blake Reid

Publications

The United States Copyright Office’s multifarious roles in the U.S. copyright system have long prompted uncertainty about its position among the branches of the federal government. From its formal home in the Library of Congress, the chameleonic Office has accumulated a wide range of advisory, rulemaking, adjudicative, and administrative functions that have long prompted questions about both agencies’ exercise of dueling legislative and executive powers.

Despite its increasingly sprawling portfolio and unusual configuration, the Office has never faced a serious separation-of-powers reckoning—until now. In the span of just five days in May 2025, Donald Trump fired the Librarian of Congress …

The Library Of Congress At A Crossroads: Executive Overreach And The Future Of Public Knowledge, Leslie A. Street, Amanda M. Runyon

Library Staff Publications

This Article argues that the removal of the Librarian of Congress and the Register of Copyrights exposed a dual vulnerability: a constitutional breach of the separation of powers and a cultural threat to the nation’s knowledge infrastructure. The Library’s structural ambiguity—its simultaneous identity as a legislative library, national library, and copyright agency—has left it vulnerable to executive overreach. By asserting control over an institution designed to serve Congress and safeguard America’s intellectual heritage, the President destabilized a statutory framework that has endured for over two centuries. To protect both constitutional integrity and the Library’s role as custodian of national memory, …

Source & Solidarity, Sari Mazzurco

Faculty Journal Articles and Book Chapters

Trademark law has become the new frontier of unionbusting. Companies like Trader Joe's, Starbucks, and Medieval Times have brought unprecedented suits against their employee unions for trademark infringement in relation to their organizing activities. This sort of litigation puts courts in the difficult position of reconciling trademark protection with unionization rights. Their attempts to apply standard trademark doctrines in this context reveal a deeper problem: Current trademark law is incoherent when applied to labor unions.

This incoherence stems from a disconnect between current trademark law and the original purpose behind its application to labor unions. This Article recovers that basis …

Copyright Eligibility For Ai Works Under United States Law, Roger V. Skalbeck

Law Faculty Publications

This article examines copyright eligibility for works that incorporate generative AI elements under United States law, explaining that such works may be protected only to the extent they contain human-authored expression.  This expression can appear as creative selection, arrangement, editing, or other expressive contributions, while unedited or autonomously generated AI output is not copyrightable. The article highlights how the U.S. Copyright Office’s registration and review system, through disclosure requirements, refusals, and public registration records, creates meaningful evidence about boundaries of copyright protection for AI-assisted works. The article contrasts this U.S. registration framework with other legal systems, including European jurisdictions such …

Two Cheers For Cox V. Sony, James Gibson

Law Faculty Publications

There’s a lot to dislike about the Supreme Court’s opinion in Cox Communications, Inc. v. Sony Music Entertainment. It mischaracterizes, oversimplifies, and ignores precedent. It fails to engage with important arguments. It mangles the meaning of “intent.” And it introduces uncertainty into the workings of secondary liability across other intellectual property regimes.

For these reasons, the decision doesn’t deserve three cheers. But it deserves two. Because in two important ways, the Supreme Court has succeeded. First, the opinion fixes some misguided appellate court holdings by articulating a relatively workable standard for future copyright cases involving secondary liability. Second, despite …

Dancing On The Edge Of Copyright: Why Copyright Law Should Protect Short Dance Routines, Tianai Song

Cardozo Arts & Entertainment Law Journal

The note argues that the Copyright Act should be amended to extend legal protection to short dance routines, regardless of their complexity or duration. This expansion aims to prevent the unauthorized appropriation of distinctive movements and ensure that creators, particularly those from Black and marginalized communities, are fairly recognized and compensated.

Digital Reuse And Online Availability Of Visual Artworks, Paul J. Heald, Matthias Sahli, Alexander Cuntz

Scholarly Works

We study how copyright impacts the distribution and reuse of images in the visual arts sector, exploiting the discontinuity at the 1926 US public domain cutoff together with cross-country variation between US and European museums. We find that public domain status raises artist-level image availability on Useum, a major image aggregator, by approximately 19 percent relative to comparable copyrighted artworks. Onward reuse of Useum images across the web is substantial - an artwork image appears on 76 additional web pages on average - and is higher for public domain artworks, though estimates are statistically significant only in some specifications. Moreover, …

Ticking Toward Reform: Rethinking The Material Difference Exception In The Luxury Watch Resale Market And Beyond, Mallory K. Hogan

American University Law Review

The rapid growth of the luxury resale market has heightened tension between trademark holders and secondary-market sellers. Courts are increasingly left to apply the material difference exception to first sale doctrine defenses, to find trademark infringement when resold goods differ from the original product, even in de minimis ways. Originally designed to protect consumers from confusion where post-sale modifications affected product quality or safety, the exception has evolved into a broad enforcement tool that luxury brands leverage to challenge resellers over minor or cosmetic alterations. In the luxury watch and accessories markets in particular, courts have deemed even minimal differences …

By Design, Roger Allan Ford

American University Law Review

In recent years, scholars and policymakers have increasingly embraced regulation “by design” to address new problems, especially those caused by new technologies. These approaches go by various names, like privacy by design, security by design, even the rule of law by design. Despite the popularity of these approaches, though, describing what goes into regulation “by design” is surprisingly challenging. Different speakers use the term in strikingly different ways, with little consensus about why design is important, how design and new technologies interact, or how design can be harnessed to deliver policy results.

Design exists along multiple dimensions: process versus result, …

The Painted Ones’ Fine Line: Batok As A Protectable Form Of Traditional Knowledge Under Trade Secret Jurisprudence, Kathleen M. Dinoso

American University Law Review

For centuries, the ancestral tattooing practice of batok has served not as mere ornamentation but as a visual archive of Indigenous Filipinos’ history and identity. In 2021, a digital creator invited the public to learn batok online for merely fifteen dollars. Soon after, many discovered that the renown instructor, Apo Whang-Od, may not have agreed to take part. The resulting discourse exposed a broader issue: Indigenous customs and creations become increasingly vulnerable to misappropriation and improper commodification as they enter global markets and multimedia platforms. Though this event occurred abroad, it highlights how U.S. law is poorly designed to protect …

The Trademark Bargain: Registration As Disclosure, Dustin Marlan

American University Law Review

This Article highlights the central—and under-theorized—role that disclosure plays within trademark law. By loose analogy, the patent disclosure requirement is a cornerstone of patent law, embodying the “patent bargain” where an inventor must disclose their invention in exchange for a twenty-year monopoly. This quid pro quo is believed to stimulate the progress of science and technology, making patent disclosure the very pulse of the patent regime. However, the fundamental importance of disclosure in trademark law remains underexplored. Like patents, trademark law imposes a rigorous bargain—to obtain the enhanced rights granted by federal registration, trademark owners must first make significant disclosures …

Patenting The Unexpected, Sean B. Seymore

American University Law Review

Unexpected discoveries have transformed human existence. They’ve revolutionized science and spawned entire new fields of research. While unexpected discoveries seem inventive and worthy of patent protection, they don’t formally align with traditional patent theory. The bedrock principle that an invention begins with the conception of an idea in the inventor’s mind and ends with implementation doesn’t apply to unexpected discoveries. This misalignment is most acute for pharmaceuticals, where the discovery of new uses for old drugs has tremendous social and economic importance. Since a drug can inherently treat multiple conditions in a patient—even those unknown to the patient, doctor, or …

Copyright Protection Or Media Suppression? The Digital Millennium Copyright Act's Impact On News Media And Journalism, Alenis Olivera

FIU Law Review

When copyright law collides with press freedom, which one survives the takedown? The Digital Millennium Copyright Act (DMCA) was once hailed as a necessary adaptation to copyright protection issues in the digital age. But now, nearly three decades since its incorporation into the Copyright Act, the DMCA has continued to cast a shadow over the journalism industry. The DMCA’s notice-and-takedown system, originally designed to protect copyright owners by allowing for quick removal of infringing content, has become a mechanism that risks suppressing lawful reporting and undermines the First Amendment’s guarantee of a free press. This Comment will explore how the …

Digital Dialectic: Why Every “Ai-Generated” Work Has A Human Author, Lea Bishop

FIU Law Review

Are ChatGPT and Midjourney tools or creators? Ownership of billions of AI-assisted creative outputs hangs in the balance. Copyright scholars have long debated whether an autonomous artificial intelligence could qualify as an author, but this remains a hypothetical question. Despite widespread application of the term “AI” to software products of the 2020s, autonomously creative artificial intelligence still does not exist. Today’s commercial AI products—such as ChatGPT, Midjourney, Dall-E, Copilot, Gemini, Claude, Suno, Perplexity, and Lumo—are simply the newest generation of computer software. They do not qualify as “artificial intelligence” in either the scientific or science fiction senses. They are mere …

Owning Data: Semantic Control As Inaccess To Information, Zvikomborero Chadambuka

FIU Law Review

This Article discusses the impacts of the introduction of a data ownership scheme on access to information. It does so with reference to the distinction between data, defined as some representation of information by a specific medium (the syntactic level), and the information itself (the semantic level). With respect to data, it then looks at the difference between standard property rights and intellectual property (IP) rights, similarly assessing impacts on access to information. Private control at the semantic level is bad policy as it effects particularly serious limitations, relative to private control at the syntactic level, on the availability of …

The Protection Of Geographical Indications Under Comparative Lens: Whether Law Artificially Creates Scarcity Of Goods, Domenico Di Micco

FIU Law Review

The economic principles of supply and demand dictate that market prices are contingent on the conditions under which supply and demand converge. Within this theoretical framework, the concepts of scarcity and abundance assume paramount significance. When goods are scarce, prices tend to escalate, while in cases of abundant supply, prices tend to decline. But what factors determine scarcity and abundance? In many cases, scarcity is inherent to the nature of the commodity (for example, diamonds are rarer than common stones). In other cases, such as geographical indications, scarcity is constructed through the legal denomination associated with the commodity, thereby creating …

The New European Union Regulation On Geographical Indications For Craft And Industrial Products And The Protection Of "Lace Of Cantù": A Work In Progress, Barbara Pozzo

FIU Law Review

Regulation (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 has introduced the protection of geographical indications for craft and industrial products. The contribution aims at investigating how the Regulation may have implications in the fashion world. In particular, it will focus on a particular case study undertaken in Northern Italy, concerning the possibility of protecting the “Lace of Cantù” through a geographical indications for craft.

Ip Law: Ai And Cracks In The Foundation Of Ip, Robin C. Feldman

The Judges' Book

Our implicit image of progress, and the standards we use to calibrate the value of human contributions to that progress, are quietly at risk from the onslaught of AI. AI has the potential to significantly shrink the pool of information and creative work protected by IP, particularly shrinking the protectable space for the work of human contributors.

The changes wrought by AI raise existential questions for society’s conception of human invention. I use the term “existential” here not in the modern sense of threatening something’s existence, but rather in the broad sense of philosophical existentialism, as being concerned with exploring …

Designed Lands©Apes—Ar©Hitecture, Sculpture, Visual Art, Shape, Pi©Torial Work, Or . . . Nothing At All?, Richard H. Chused

Articles & Chapters

This article arises from the saga of the construction and eventual destruction of a landmark landscape architectural work by the well-known artist Mary Miss that was constructed adjacent to the Des Moines Art Center called Greenwood Pond: Double Site. The project’s demise is emblematic of the remarkably ambiguous copyright problems that surround such artistic creations. They do not neatly fit into any category of copyrightable works. Though they may contain sculptural works, their overall designs are rarely totally sculptural. While architects typically draw plans and “sculpt” a landscaped space, the results usually are not “buildings,’ as required by the definition …

Distillation Laundering: Regulatory Arbitrage And A Potential Beijing Effect In Ai, Laura Edelson, Filippo Lancieri

Georgetown Law Faculty Publications and Other Works

This essay introduces distillation laundering, a new form of regulatory arbitrage. Distillation, a technique for training large language models based on the outputs of other models instead of from scratch, is generally prohibited by the terms of service of closed-weight frontier models. However, it is economically efficient and has been key to the success of the cheap, distilled (largely Chinese) open-weight models, which have reshaped the global political economy of AI regulation. US companies have now begun to re-import the effects of distillation through various means—a process we call distillation laundering. We also discuss how attempts to lobby these models …

Open Secrets, Robin C. Feldman, Vaughn Goehrig

Faculty Scholarship

Patents and trade secrets were never intended to meet, but in the world of biologic drugs, they've become as thick as thieves. Patent law's disclosure requirement has demanded far too little of biologics manufacturers-allowing them to keep vital manufacturing details under trade secret lock and key. This intellectual property patchwork has been devastating for drug affordability: Because the most critical manufacturing information remains hidden, makers of follow-on biologics (called biosimilars) are often stuck reinventing the wheel, even after the original patents have expired.

This Article makes two principal contributions to illuminating this problem. First, it presents, for the first time …

Fluid Agency In Ai Systems: A Case For Functional Equivalence In Copyright, Patent, And Tort, Anirban Mukherjee, Hannah H. Chang

Research Collection Lee Kong Chian School Of Business

Modern Artificial Intelligence (AI) systems exhibit fluid agency in multi-step workflows: lacking human-like consciousness or culpability, yet they display behavior that is (i) stochastic (probabilistic and path‑dependent), (ii) dynamic (co‑evolving with user interaction), and (iii) adaptive (able to reorient across contexts). These properties generate valuable outputs but collapse attribution, irreducibly entangling human and machine inputs. Doctrines that assume traceable provenance—authorship, inventorship, and liability—fracture under this unmappability, yielding ownership gaps and moral “crumple zones.”This Article argues that only functional equivalence stabilizes doctrine under unmappability: Where provenance is indeterminate, legal frameworks should treat human and AI contributions as equivalent for allocating rights …