Intellectual Property Law Commons^™

Termination Rights And The Real Songwriters, Geoffrey P. Hull

Vanderbilt Journal of Entertainment & Technology Law

Collaboration--the act of more than one songwriter writing a song--has seldom, if ever, been more popular or prevalent in popular music. A perusal of a recent Billboard Hot 100 singles chart revealed that 85 of the charted songs had more than one writer in their credits. Of the fifteen with single writer credits, thirteen were by the recording artists. The other two were remakes of decades-old hits. More often than not, especially on the pop charts, some of the co-writers are the recording artists or the producers of the recording. Many times these artist and producer co-writers have actually written …

When You Wish Upon Dastar: Creative Provenance And The Lanham Act, Mary Lafrance

Scholarly Works

This Article examines the application of section 43(a) of the Lanham Act to claims of reverse passing off through the lens of the Supreme Court's unpersuasive effort in Dastar Corp. v. Twentieth Century Fox Film Corp. to exclude a single class of reverse passing off-claims - those involving “expressive” works as opposed to physical commodities - from the scope of section 43(a). The Article critiques the Court's analysis of section 43(a) in light of case law and the pertinent legislative history, including, the Trademark Law Revision Act of 1988, the Berne Convention Implementation Act of 1988, and the Visual Artists …

Legal And Practical Aspects Of Music Licensing For Motion Pictures, Vad Kushnir

Vanderbilt Journal of Entertainment & Technology Law

Most motion pictures contain both original music composed specifically for a particular film and preexisting music (usually popular songs). In order to use preexisting music in a motion picture, the movie studio must obtain the appropriate music licenses from the copyright proprietors. The process of licensing music for use in a motion picture can potentially involve three different types of music licenses. First, the movie producer must obtain a "synchronization license," which will allow the producer to synchronize the musical work with the on-screen visual images and to use the licensed musical work as part of the motion picture in …

A Proposed Quick Fix To The Dmca Overprotection Problem That Even A Content Provider Could Love . . . Or At Least Live With, Devon Thurtle

Seattle University Law Review

This article explains the evolution of the fair use doctrine, which historically prevented copyright holders from having too much control over their works by allowing certain legal and non-infringing fair uses of protected works. Part II explains how the United States Supreme Court developed the Betamax standard to apply the doctrine of fair use to a new technology: home video recorders. Part II also addresses how fair use and the Betamax standard might apply to digital technologies. Part III explains how the DMCA effectively abolished the defense of fair use and its application under the Betamax standard. Finally, Part IV …

Copyright Norms And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

Copyright policy must resolve intelligently the tension between upstream and downstream creators, between incentives to create and incentives to use. Downstream at1thors who copy and transform others' images or words as an input to new creativity have. obvious free speech concerns. So do simple copiers in those many instances where even non-creative copying is essential for expressing one's ideas or allegiances.

Part of the tension is economic. Because virtually every author :needs access to predecessor texts, a legislature that increases copyright protection for ·today's creators simultaneously increases tomorrow's costs of creation ¹ or use. But the issue goes far beyond …

Even Non-Extremists Get The Blues: The Rhetoric Of Copyright, Wendy J. Gordon, Lois Wasoff

Faculty Scholarship

The participants in this dialogue are Wendy Gordon and Lois Wasoff. Each is an intellectual property expert who has immersed herself in copyright law and policy for over twenty years. Neither sits at an extreme end of the policy spectrum, yet the two disagree over a wide range of issues. The editors of this volume thought their discussions could prove useful to others struggling with copyright dilemmas. Accordingly, Gordon and Wasoff sat down with a tape recorder for us. In edited form, their dialogue follows here.

Copyright Law And Subject Matter Specificity: The Case Of Computer Software, Stacey Dogan, Joseph Liu

Faculty Scholarship

Drawing on recent work by Dan Burk and Mark Lemley in the patent context, this paper explores the extent to which courts have adapted pre-existing copyright doctrines to the special case of computer software. We argue that a number of courts have, as has been widely recognized, significantly adapted copyright doctrines to deal with special features of the computer software market. We further argue that these adaptations have, by and large, positively sought to strike a balance between the copyright act's dual goals of incentive and access. Despite this general trend toward adaptation, however, we point to a handful of …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

God In The Machine: A New Structural Analysis Of Copyright's Fair Use Doctrine, Matthew Sag

Faculty Articles

Recognition of the structural role of fair use has the potential to mitigate some of the uncertainty of current fair use jurisprudence. The statutory framework for fair use both mitigates and causes uncertainty. It mitigates uncertainty by providing a consistent framework of analysis the four statutory factors. However, when judges apply the statutory factors without articulating or justifying their own assumptions, they increase uncertainty. The statutory factors mean nothing without certain a priori assumptions as to the scope of the copyright owner's rights. A more stable and predictable fair use jurisprudence would begin to emerge if those assumptions were made …

Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.

Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham

Suffolk University Law School Faculty Works

This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims …

The Downhill Battle To Copyright Sonic Ideas In Bridgeport Music, Matthew S. Garnett

Vanderbilt Journal of Entertainment & Technology Law

This Note argues that the bright-line rule announced in Bridgeport Music should not apply where the disputed digital sample appropriates only the "sonic" ideas of the original work. The main thrust of this argument is that the Sixth Circuit's holding in Bridgeport Music is inapplicable where the disputed copying is a protected exercise of "fair use" reverse engineering; that is, where copying is necessary to appropriate the "sonic" ideas embodied in the sampled work.

Part II of this Note presents a brief history of digital sampling, including its application in the Hip-Hop musical genre. Part III presents a walkthrough of …

Yours For Keeps: Mgm V. Grokster, Max Oppenheimer

All Faculty Scholarship

In MGM v. Grokster, now pending before the U.S. Supreme Court, all parties have made the assumption that most P2P file transfers infringe copyrights. Two theories contradict that assumption: a significant number of individuals who transfer files over P2P networks may have a license to do so, and the Copyright Act itself may exempt the transfer of certain categories of entertainment files over P2P networks from the definition of infringement.

Artists Don't Get No Respect: Panel On Attribution And Integrity, Rebecca Tushnet, Jonathan Band, Robert Clarida, Eugene Mopsik

Georgetown Law Faculty Publications and Other Works

When I was considering the question of the moral right to attribution and how unauthorized fan creativity relates to that concept, it struck me that there are two interesting issues from a theoretical perspective. The first is: who gets the credit? When I was in law school and discovered fan fiction, the reason why I got into intellectual property was because most of these stories had a disclaimer-no copyright infringement intended, these characters aren't mine, I'm not making any money, please don't sue. And as a student, my question was – does that work? Is that good enough? I was …

A Comparative Law Analysis Of The Retained Rights Of Artists, W W. Kowalski

Vanderbilt Journal of Transnational Law

This Article presents an analytical and theoretical discussion of how an artist's artwork should be treated once it enters the global marketplace. Considering only the visual arts, the answer is short and simple: this Author believes that all, or at least the better-known legal systems, uphold the rights granted to the artist when the work was created. Consequently, the artist retains some rights not only as the artist's intellectual property, but also in its tangible manifestation, for example, sculpture or painting--traditionally called corpus mechanicum--even though he does not own this particular sculpture or painting anymore. This, however, is only a …

Facing The Music: Traditional Knowledge And Copyright, Bryan Bachner

Human Rights Brief

No abstract provided.

Comment: Copyright's Public-Private Distinction, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman expresses a guarded optimism that in its forthcoming decision in MGM v. Grokster, I the Court will retain the staple article of commerce doctrine that it first articulated in Sony. She opines, however, that the user privacy strand of the Sony decision is a lost cause. I don't believe that it's possible to retain the staple article of commerce doctrine while abandoning user privacy. At least in the realm of networked digital technologies, the two concepts are inextricably …

The Place Of The User In Copyright Law, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Copyright doctrine . . . is characterized by the absence of the user. As copyright moves into the digital age, this absence has begun to matter profoundly. As I will show, the absence of the user has consequences that reach far beyond debates about the legality of private copying, or about the proper scope of user-oriented exemptions such as the fair use and first sale doctrines. The user's absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The resulting imbalance - empty space where one cornerstone of …

The Future Of Copyright, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig (2004).

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems--Napster, Gnutella, KaZaA, Grokster, and Freenet3--are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital …

Copyright Issues For Sound Recordings Of Volunteer Performers, Stephen Adams

Vanderbilt Journal of Entertainment & Technology Law

Is copyright jurisprudence ready to handle a situation where three and four hundred people own a copyright in a single work? The copyright code does provide solutions for this type of situation, but the solution provided may not be the best one. This Note discusses how this situation may arise, and it recommends possible solutions to alleviate it. The first section will present a brief history of copyright law. The second section will explain the purpose of the termination of transfers encoded in section 203 of the Copyright Act. The third section will discuss the importance of the employment relationship …

The Supreme Court's Mixed Messages On The Public Domain: Cases Interpreting Section 43 Of The Lanham Act, William Scott Hunt

Kentucky Law Journal

No abstract provided.

Judging Art, Christine Farley

Scholarly Articles in Law Reviews & Journals

What is art? Surprisingly, this question is addressed in various places in the law. At these junctures, courts typically attempt to avoid making a judgment. Indeed, the law generally resists any definition of art. The reasons given for this are that these determinations are too subjective for the courts and that judges lack proper training and expertise. Thus, the doctrine of avoidance is the most stable and explicitly stated proposition to be found in these encounters. However, the question of whether an object is a work of art for treatment under the law is often unavoidable. This question gets resolved …

The Struggle For Music Copyright, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Inspired by passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Ironically, although music publishers and recording companies are among the most aggressive advocates for strong copyright in music today, music publishers in eighteenth-century England resisted extending copyright to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was originally far more circumscribed than …

Why Intellectual Property Belongs In The First-Year Property Course, Roberta Rosenthal Kwall

Journal of Legal Education

No abstract provided.

Human Rights And Copyright: The Introduction Of Natural Law Considerations Into American Copyright Law , Orit Fischman Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Re-Reifying Data, James Gibson

Law Faculty Publications

There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …

Copyright's Communications Policy, Timothy Wu

Michigan Law Review

There is something for everyone to dislike about early twenty-first century copyright. Owners of content say that newer and better technologies have made it too easy to be a pirate. Easy copying, they say, threatens the basic incentive to create new works; new rights and remedies are needed to restore the balance. Academic critics instead complain that a growing copyright gives content owners dangerous levels of control over expressive works. In one version of this argument, this growth threatens the creativity and progress that copyright is supposed to foster; in another, it represents an "enclosure movement" that threatens basic freedoms …

Are Decss T-Shirts Dirty Laundry? Wearable, Non-Executable Computer Code As Protected Speech, Sara Crasson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Nickled And Dimed: The Dispute Over Intellectual Property Rights In The Bluenose Ii, Teresa Scassa

Dalhousie Law Journal

The Bluenose Schooner forms part of the folk history of Nova Scotia, and is a Canadian icon. Popular assumptions that Its name and image formed part of the public domain were put to the test in 2003 when the Bluenose II Preservation Trust Society brought suit against a Halifax business for Infringement of its official marks, trademarks and copyrights relating to the ship and its name. The litigation garnered local and national media attention, and the provincial government soon became involved in the dispute In this article, the author provides some background to the dispute before moving on to consider …