Intellectual Property Law Commons^™

Caging Songwriters In The Compulsory Licensing Framework: A Battle Of Fairness And Equity, Maria Kaganis

St. John's Law Review

(Excerpt)

Imagine it is November 2023, and you log onto Spotify to stream your favorite music. As you do, you notice you now have access to up to fifteen hours of the most popular audiobooks. You really enjoy the addition of audiobooks to Spotify and have used the new feature for months. Come March of 2024, however, you get an email stating that Spotify will be introducing a . . . music-audiobook bundle as part of your current subscription? Is that not what you already had? Shrugging it off, you move on and continue enjoying your music, audiobooks, and podcasts …

Chopped And Screwed: How The Soundexchange V. Sirius Xm Decision Remixes Section 114 Of The Copyright Act, Cat Wood

Georgia Journal of Law & Technology

In SoundExchange, Inc. v. Sirius XM Radio Inc. (S.D.N.Y. 2025), the court held that SoundExchange—the congressionally designated nonprofit that collects and distributes statutory digital performance royalties under 17 U.S.C. § 114—lacks authority to bring suit to recover alleged underpayments. That ruling creates an enforcement paradox at the center of the section 114 statutory-license ecosystem: SoundExchange is the entity built to receive royalty reports, audit compliance, and distribute payments at scale, yet it cannot directly compel payment through litigation when the system fails. This Note argues that the decision misreads statutory structure by treating SoundExchange as a mere administrative clearinghouse rather …

Skin In The Game: The Case For Statutorily Excluding Tattoos From Copyright Protection, Emily Gamble

Georgia Journal of Law & Technology

The growth of social media, AI-generated imagery, and name, image, and likeness (NIL) licensing has exponentially increased the reproduction of tattoos, yet their status under the Copyright Act remains unsettled. While tattoos arguably satisfy the threshold requirements of Title 17, their fixation on human skin challenges the definition of a "material object" and raises unique conflicts regarding bodily autonomy and publicity rights. Currently, courts address these disputes largely through equitable doctrines like implied license and fair use to avoid public policy failures, resulting in an unpredictable and incoherent legal framework.

This Note argues that judicial improvisation is insufficient to resolve …

Posts, Not Personae: Why Influencer Personae Fall Outside The Doctrine Of Character Copyright, Abbey Brantley

Georgia Journal of Law & Technology

Over the past decade, social media has enabled an increasing number of people to pursue influencing as a full-time career on platforms such as TikTok, Instagram, and YouTube. To succeed commercially, these creators make repeated stylistic choices that both conform to online trends and project a carefully curated persona. As these personae become profitable, however, they also become susceptible to imitation. This dynamic raises the question whether copyright law, specifically the doctrine of character copyright, can protect influencers from unauthorized copying of their online identities. This Note argues that influencer personae do not and should not qualify for such protection, …

Separation Of Copyright Powers, Blake Reid

Seattle University Law Review Online

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 Runyon

Seattle University Law Review Online

In May 2025, President Trump's removal of the Librarian of Congress and attempted removal of the Register of Copyrights precipitated a constitutional crisis that exposed fundamental structural vulnerabilities in the nation's knowledge infrastructure. This Article argues that the Library of Congress faces a dual threat: a constitutional breach of separation of powers and a cultural threat to the preservation of America's intellectual heritage. The Library's structural ambiguity — its simultaneous identity as a legislative library, national library, and copyright agency — has left it vulnerable to executive overreach that threatens both constitutional integrity and its role as custodian of national …

Leveraging Technology, Copyright, And Libraries To Benefit The Public Interest, Michelle Wu

Seattle University Law Review Online

Rapid developments in technology have radically changed the practice of copyright; however, this revolution has provided disproportionate, lopsided advantages to corporate interests over public ones. For example, publishers today can charge the same buyer for the same e-book many times over while simultaneously depriving them of the rights normally conveyed with purchase, such as the rights to resale, donation, lending, and bequeathing. Technology itself is a neutral tool, so there is no reason that the current landscape must be so unbalanced. This Article explores two ways in which libraries can both maximize the public benefits of knowledge and provide added …

The Judicial Subjectivity In The Fair Use Analysis Of Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith And Its Implications, Donna Khademi

Theses

The case of Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith demonstrates the subjective nature of the fair use doctrine. Scholars suggest that judges are often forced to interpret expressive works without specialized training in art, leading to inconsistent rulings. These discrepancies can lead to legal ambiguity and potentially weaken First Amendment protections. A deeper understanding of authorship, appropriation, and contemporary art highlights their crucial role in evaluating expressive works. By examining current legislation and judicial precedents, this paper shows the subjective and inconsistent nature of the present legal framework and offers a set of related proposals. It …

That Song Sounds Familiar: An Analysis Of U.S. Copyright Considerations In Popular Music, Jessica Johnson

Honors Theses

Much of popular music has started to bear resemblance to songs of the past as artists rely on techniques, including sampling and interpolations, to ensure their song is a guaranteed hit. But what are the legal implications behind that, and is the line between inspiration and copying getting blurred? This thesis aims to consider the precedent of copyright law as applied to modern musical works and how the landscape of popular music has evolved over time to raise more copyright concerns. It also looks at two modern case studies of musical inspiration that have resulted in legal claims: the song …

Copyright On Stage: Protecting The Directions Behind The Performance, Eliana Sakin

The Journal of Business, Entrepreneurship & the Law

In this comment, the author argues that theatrical stage directions should be recognized as copyrightable material under the U.S. Copyright Act, primarily by categorizing them as "choreographic works". Sakin highlights that while the 1976 Copyright Act explicitly protects choreography and pantomimes, stage directions—which serve as the "blueprints" for a production's blocking, technical cues, and artistic mood—currently exist in a legal gray area. Through an analysis of historical context and industry disputes, such as the Urinetown and The Most Happy Fella settlements, the author illustrates a growing industry recognition of a director’s staging as a protectable, original contribution, despite the lack …

Public Means Public: A Call For Amendment Of The Copyright Act Of 1976'S Public Display Right To Immunize Private Businesses From Unintentional Infringement, Lucy Greaney

Et Cetera

Private businesses increasingly face copyright liability and burdensome licensing fees under the Public Display Provision of the Copyright Act of 1976, despite engaging in activities that cannot be truly considered public. This Note examines the historical development of the Public Display Provision, analyzes case law involving public accommodations and semi-private entities, and explores the intersection between copyright enforcement and U.S. antitrust principles. It argues that Congress did not intend for private, employee-only business settings to fall within the scope of the Public Display Provision and that the current enforcement regime enables anticompetitive licensing practices by performing rights organizations. To resolve …

From Software To Models: Rethinking Open Source In The Age Of Generative Ai, Dana Beldiman

Washington Journal of Law, Technology & Arts

Open-source software (OSS), a form of distributed and collaborative software development rooted in the ethos of early computer science, has evolved into an essential component of modern digital infrastructure. This article asks whether open source will assume a similarly transformative role within the emerging technological paradigm of generative artificial intelligence (AI).

Generative AI differs fundamentally from software: its constituent artifacts, architectures, generative capacities, and deployment contexts are distinct and substantially more complex. Despite these differences, foundation models continue to be released under licenses originally designed for software, which may not constitute a valid transfer of rights in the generative AI …

Cardozo Law Introduces New Course On Theatre Law, Benjamin N. Cardozo School Of Law

Cardozo Law News Archive

Cardozo School of Law introduced Theatre Law, the first law school course devoted entirely to the legal framework of the live stage industry. Taught by Adjunct Professor Ben Feldman, the course explores contracts, intellectual property, labor relations, licensing, financing, and other legal issues unique to theatrical productions, providing students with specialized training in entertainment law.

The Mark Of Confusion: Untangling The Circuit Split In Trademark Infringement Jurisprudence, Amilcar Torres

University of Cincinnati Law Review

No abstract provided.

Brief Of Copyright Scholars As Amici Curae In Support Of Respondent In Emmerich Newspapers, Inc. V. Particle Media, Inc., Jess Miers, Mark A. Lemley, Rebecca Tushnet

Akron Law Faculty Publications

The server test has served us well for nearly two decades. It matches the language of the statute, the well-settled distinction between direct and secondary liability, and the nature of the technology. The copyright owner here makes the work available freely to every site visitor, and may stop embedding with a few clicks on the keyboard. There is no need to strain the law of direct liability to protect any legitimate interests it might have.

This Court should decline the invitation to create a circuit split that would upset settled expectations and turn millions of online posters into infringers overnight.

Shutting Pandora's Box: A Legal, Economic, And Miscellaneous Meditation Of The Copyrightability Of Ai-Generated Music, Nathan Oddi

Akron Law Review

No abstract provided.

Fight For Your Right: An Analysis Of A Musician’S Ability To Terminate A Copyright Assignment Of A Music Recording, Ian Waldron

Georgia Journal of Law & Technology

In 2019, musicians joined together to launch two separate lawsuits against Sony Music Entertainment (“Sony”) and Universal Music Group (“UMG”) after the record labels ignored the musicians’ copyright termination notices. Copyright termination is a powerful tool that allows the original owner of a work, under some circumstances, to regain possession years after they have assigned it to another party. To defend their actions, UMG and Sony countered that since the recordings were created under a record deal, they were works for hire and the musicians acted as employees. Therefore, under the record label’s theory, the musicians would have no ownership …

Unplugging The Federal Right Of Publicity: Why Existing Laws Can Protect Artists Without A Federal Right Of Publicity, Ashley L. Burgess

Georgia Journal of Law & Technology

The rapid rise of artificial intelligence(AI)in music creation has sparked concern over how the rights of artists can remain adequately protected from unauthorized uses of their voices, likeliness, and stylistic elements. A popular proposed solution to this complex problem is the creation of a federal right of publicity. Proponents of this solution stress that it would provide artists with a unified legal framework to better protect the commercialized use of their identity.

This paper argues that a federal right of publicity is neither necessary nor the most efficient solution to address the challenges posed by AI music. A federal right …

Toward A Transformative Fair Use Standard After Warhol, Sangwook Park

Georgia Journal of Law & Technology

The Supreme Court’s 2023 decision in Andy Warhol Foundation v. Goldsmith narrowed the transformative fair use inquiry but left unresolved where derivative adaptation ends and genuine transformation begins. This article proposes that the Purpose-Expression Shift (PES) Framework can supply that missing line, a dual-pronged standard rooted in § 107(1) that asks (1) whether the secondary work serves a purpose meaningfully different from the original and (2) whether its expressive alterations are tailored to realize that new purpose. Mapping two decades of case law onto a four-quadrant matrix, this article shows how the PES Framework can predict outcomes under first factor …

The Free Content Illusion, Jonathan M. Barnett

Georgia Journal of Law & Technology

Conventional scholarly wisdom tends to discount the importance of copyright as a tool for delivering remuneration to the artists that sustain the digital creative ecosystem or as an enabling mechanism that facilitates the licensing, distribution, and financing transactions that constitute the economic infrastructure of the media and entertainment industries. This position runs counter to the evolution of digital content markets, which have experienced renewed investment and growth concurrently with the development of technological tools that have enabled content owners to correct for the “copyright deficit,” regulate access, and extract payment from platforms and users. This result conforms to standard economic …

A Case Comment On Cryogas Equipment V. Inox India, Eashan Ghosh

Indian Journal of Law and Technology

Composite claims for copyright and design have long posed conceptual difficulties under Indian law. A pointed attempt by the Supreme Court in Cryogas Equipment v Inox India (‘Cryogas’) to resolve these difficulties, therefore, is of considerable interest.

In this Comment, I examine Cryogas in detail. I find that, despite adopting a schematic approach that is promising on the surface, Cryogas offers little assistance in untangling the constituent portions of copyright-design claims. For one, its test for telling apart artistic works from designs is entirely self-referential and requires a pre-existing understanding of what outputs statutorily constitute ‘artistic works’ and …

A Human Enablement Theory Of Copyright, Akshat Agrawal

Indian Journal of Law and Technology

Copyright policy, designed to protect creators and disseminators from market imperatives, has ironically deepened their market dependency. This transformation stems from two critical theoretical errors: first, the “incentives”/“reward for labour” story that mistakes protection from market pressures for market encouragement; second, market fundamentalism that treats exclusionary rights as natural and as the source of “liberty”. These misconceptions, reinforced by fallacies about pre-social creativity and physicalism, have transformed copyright from an enabler in a market society into one that commodifies creative expression itself, intensifying rather than ameliorating the economic vulnerability of cultural producers.

This theoretical misunderstanding has produced three interlocking harmful …

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

Washington Journal of Law, Technology & Arts

Modern artificial intelligence (AI) systems lack human-like consciousness or culpability, yet they exhibit fluid agency: behavior that is (i) stochastic (probabilistic and path-dependent), (ii) dynamic (co-evolving with user interaction), and (iii) adaptive (able to reorient across contexts). Fluid agency generates valuable outputs but collapses attribution, irreducibly entangling human and machine inputs. This fundamental unmappability fractures doctrines that assume traceable provenance—authorship, inventorship, and liability—yielding ownership gaps and moral “crumple zones.”

This Article argues that only functional equivalence stabilizes doctrine. Where provenance is indeterminate, legal frameworks must treat human and AI contributions as equivalent for allocating rights and responsibility—not as a claim …

Ai Pirated My Art And Birthed Infringing Works, And Other Metaphors That Confound Copyright Law, Michael D. Murray

Akron Law Review

No abstract provided.

Ai Training Is Fair Use: The Beginning Of The End Of The Copyright Assault On Gen Ai, Michael D. Murray

Journal of Law, Technology, & the Internet

Two federal courts overseeing claims against the developers of generative artificial intelligence (GenAI) have pointed the way to resolving these infringement actions by finding that the training of GenAI models is a transformative fair use under copyright law. While the two opinions differed in tone and scope, this article takes these rulings as the starting point for a discussion on resolving the ongoing copyright claims against AI developers, signaling what may be the beginning of the end of the copyright assault on GenAI.

The goal of this article is to inject urgency into resolving these matters. It asserts that uncertainty …

Fair Use In The Supreme Court: A Peek Behind The Scenes, Jonathan Band

Joint PIJIP/TLS Research Paper Series

Between 1975 and 1994, the Supreme Court considered five cases that involved fair use: Williams & Wilkins v. United States; Sony v. Universal City Studios; Harper & Row v. Nation Enterprises; Stewart v. Abend; and Campbell v. Acuff-Rose. The papers of the Supreme Court Justices that decided these cases show the Court as a profoundly human institution with the Justices often struggling to fashion opinions that could gain the support of a majority. The Justices clearly cared about the copyright merits, but they were also willing to compromise to achieve a certain result. In several …

Friday Night Rights: Ornamental Use In Collegiate Sports Merchandising, Isabel Mury Carvalho

Law Student Publications

University logos and insignias—once limited to athletic uniforms and official stationery—now appear on everything from high-end apparel to mass-produced mugs. Collegiate merchandising is a massive industry, generating $14.8 billion in 2023 alone. Infringers have followed close behind, producing look-alike goods that blur the line between authorized merchandise and unauthorized imitation. ...

Ai Can't Adlib: Theorizing An Improvisation Carveout In The Work For Hire Doctrine, Audrey Pope

IP Theory

AI-generated actors and digital replicas are an increasingly pressing concern in the filmmaking industry. While this technology is only one of the myriad ways that generative AI is set to change Hollywood, debates about its use reflect a throughline in debates about AI generally: Can this technology do a convincing, much less desirable, job of what humans have done before? This Article argues that, at least in one particular context, the answer is no. It focuses on the art of adlibbing. It explains the unique position of improvisation within copyright law and proposes one mechanism—a carveout in the work for …

Recentering Creativity In Copyright Law Discourse, Joshua Yuvaraj

IP Theory

Copyright discourse often centers around creativity; as a rationale for copyright, and as a threshold for copyright to subsist in songs, books, art and other creative works. Yet creativity remains an ethereal concept: if we do not know what it means, we cannot evaluate whether copyright law is promoting it, nor can we properly understand what it means for a work to be "creative" where that is required for copyright to subsist. An emerging strand of copyright discourse seeks to respond by examining scientific insights into the cognitive process of creativity to highlight how copyright law should be reshaped to …

Caught In The Web: The Resolution Of The Internet Service Provider Contributory Copyright Infringement Split, Olivia F. Johnson

Cybaris®

No abstract provided.