Intellectual Property Law Commons^™

Antitrust Regulation Of Copyright Markets, Jacob Noti-Victor, Xiyin Tang

Articles

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.

This Article examines …

Another Round For Petrella V. Mgm, Laches, And Raging Bull: Resolving The Circuit Split Over Copyright’S Statute Of Limitations, David E. Shipley

Scholarly Works

There is a split between the Second Circuit and the Ninth and Eleventh Circuits over the interpretation and application of the Copyright Act’s three-year statute of limitations. The disagreement is about whether it bars a copyright infringement plaintiff from recovering for infringing acts occurring outside the statute’s three-year window. The Second Circuit stated in 2020 in Sohm v. Scholastic that the U.S. Supreme Court explicitly delimited damages to the three years prior to the commencement of an infringement action. However, the Ninth Circuit in Starz Entertainment in 2022 and the Eleventh Circuit Nealy v. Warner Chappell Music in 2023 both …

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Artificial Intelligence And Transformative Use After Warhol, Gary Myers

Washington and Lee Law Review Online

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law’s fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to “train” AI programs—AI inputs—and the products of AI programs—AI outputs—are likely to found to be transformative in light of …

The Proof Is In The Data: How Ethereum And Efficient Audits Can Reduce Litigation In The Streaming Era, Keri Ogden

Loyola of Los Angeles Entertainment Law Review

No abstract provided.

That Thing Ain't Human: The Artificiality Of "Human Authorship" And The Intelligence In Expanding Copyright Authorship To Fully-Autonomous Ai, Ernest Oleksy

Cleveland State Law Review

The U.S. Copyright Review Board (the "Board") decided that works entirely created by fully-autonomous artificial intelligence ("AI") are not entitled to copyright protections. The Board based its decision on a copyrightability requirement referred to as “human authorship.” However, the Copyright Act of 1976 (the "Act") never mentions a “human” requirement to copyright authorship, nor do most of the Board’s cited authorities. Denying authorship to intellectually-impressive and economically-valuable works under a poorly-established legal subelement is antithetical to copyright law’s history and to Congress’s constitutional mandate to “promote . . . [the] useful [a]rts . . . .” It leaves creators who …

Defragging Feminist Cyberlaw, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

In 1996, Judge Frank Easterbrook famously observed that any effort to create a field called cyberlaw would be “doomed to be shallow and miss unifying principles.” He was wrong, but not for the reason other scholars have stated. Feminism is a unifying principle of cyberlaw, which alternately amplifies and abridges the feminist values of consent, safety, and accessibility. Cyberlaw simply hasn’t been understood that way—until now.

In computer science, “defragging” means bringing together disparate pieces of data so they are easier to access. Inspired by that process, this Article offers a new approach to cyberlaw that illustrates how feminist values …

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

Training Is Everything: Artificial Intelligence, Copyright, And “Fair Training”, Andrew W. Torrance, Bill Tomlinson

Dickinson Law Review (2017-Present)

In this Essay, we analyze the arguments in favor of, and against, viewing the use of copyrighted works in training sets for AI as fair use. We call this form of fair use “fair training.” We identify both strong and spurious arguments on both sides of this debate. In addition, we attempt to take a broader perspective, weighing the societal costs (e.g., replacement of certain forms of human employment) and benefits (e.g., the possibility of novel AI-based approaches to global issues such as environmental disruption) of allowing AI to make easy use of copyrighted works as training sets to facilitate …

One Test To Rule Them All: Retiring The Dual Standard For Fictional Character Copyrightability In The Ninth Circuit, Kiersten Daly

St. John's Law Review

(Excerpt)

From Captain Jack Sparrow sailing on the Black Pearl in Pirates of Caribbean to Frodo Baggins trekking through Mordor in Lord of the Rings, well-developed characters are vital to the success of a story. Iconic characters like Captain Jack and Frodo Baggins have each developed a cult following as a result of their interesting storylines and character development. The instant recognition and nostalgia associated with such iconic characters has motivated companies to monetize their likenesses. Whether it is car companies recreating the Batmobile or the recent trend in creating story-based pop-up shops, there is a lot of value …

Evaluating Copyright Protection In The Data-Driven Era: Centering On Motion Picture's Past And Future, Chieh-Li Pai

Maurer Theses and Dissertations

Since the 1910s, Hollywood has measured audience preferences with rough industry-created methods. In the 1940s, scientific audience research led by George Gallup started to conduct film audience surveys with traditional statistical and psychological methods. However, the quantity, quality, and speed were limited. Things dramatically changed in the internet age. The prevalence of digital data increases the instantaneousness, convenience, width, and depth of collecting audience and content data. Advanced data and AI technologies have also allowed machines to provide filmmakers with ideas or even make human-like expressions. This brings new copyright challenges in the data-driven era.

Massive amounts of text and …

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

The Library & Generative Ai, Nat Gustafson-Sundell, Mark Mccullough

Library Services Publications

A demonstration of several AI tools, including ChatGPT, ChatPDF, Consensus, and more. The focus of the session is on potential student uses of the tools and related library initiatives, so we address the limits of ChatGPT as an information source. Librarians can help students learn how to use these tools responsibly and provide leadership on campus as AI is integrated into assignments.

Choreography And Copyright: Why The Law Must Twist And Turn To Serve The Dancing Industry, Gabrielle Mix

The Journal of Business, Entrepreneurship & the Law

With so many hurdles to jump over for choreographers to earn simple rights, it is time to re-evaluate the process of copyright protection for dance. In part A, this comment will discuss the history of copyright law and choreography. Part B will analyze the requirements copyright has placed on choreography and the struggles courts face in applying them. Part C will discuss the spread of online choreography and the difficulties these choreographers face regarding copyright protection. Part D will discuss additional reasons why choreographers are not seeking copyright protection. Part E will discuss the barriers choreographers face in proving infringement, …

The Life Story Rights Puzzle, Jorge L. Contreras, Dave Fagundes

Utah Law Faculty Scholarship

The life story deal is a staple of Hollywood entertainment law practice. Studios seeking to make a docudrama (a feature based on real life facts but including dramatized elements) often do so only after securing life story rights from the subject of the production. Yet “life story rights” are a fiction. No source of law vests exclusive rights in the facts that comprise the narratives of our lives. Despite popular misconceptions, neither copyright, trademark, privacy, nor the right of publicity give individuals the exclusive right to exploit facts concerning their lives. On the contrary: in the United States, First Amendment …

Protection And Prevention: The Shortcomings Of U.S. Copyright Law In Combatting Cultural Appropriation In The Fashion Industry, Luke E. Steffe

IP Theory

American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their …

Fair Use Failing The First Amendment? How The Parody And Satire Dichotomy May Be Stunting Political Discourse, Megan L. Wheeler

IP Theory

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First …

Conquering Copyright: Why Copyright Needs To Be Modernized Based On Practical Illustrations Of Inconsistent Copyright Precedent, Saipranay Vellala

Akron Law Review

Copyright law establishes an author’s right to secure exclusive rights in their writings. If an author finds an infringing work, the author can file a copyright infringement suit to protect their original writings and stop an infringer from misappropriating their work. In analyzing copyright infringement, however, some legal theories, such as the Inverse Ratio Rule, mischaracterize the crux of the copyright infringement inquiry and complicate the infringement inquiry for judges and juries—adversely affecting authors. Using indie musicians as an exemplary embodiment of modern copyright jurisprudence’s adverse effects, indie musicians who merely have access to a more famous musician’s music may …

Problems In The Copyright Industry: Making The Case For A Corrected Case Act, Megan Grantham

Et Cetera

In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement Act, which established a small claims court system within the United States Copyright Office, called the Copyright Claims Board. This new board hears cases of copyright violations involving damages of $30,000 or less. President Donald Trump signed the bill into law on December 27, 2020, and the board officially began hearing claims in June 2022. This was meant to benefit smaller creators who do not have the means to pursue their copyright claims in costly federal court. While small or independent creators should indeed have access to a means of …

Copyright’S Law Of Dissemination, Jacob Noti-Victor

Cardozo Law Review

Intellectual property law generally rests on the assumption that markets will bring about an ideal allocation of resources. Nonetheless, United States copyright law remains riddled with regimes that bypass or restructure normal market licensing between copyright owners and distributors such as streaming services, radio stations, and libraries. This Article provides the first comprehensive account of this “law of dissemination,” examining how a range of seemingly unrelated judicial doctrines, statutory safe harbors, and regulatory institutions together affect the relationship between copyright owners and the entities that disseminate creative works to the public.

While these regimes are often treated as unintelligible historical …

Give Starving Artists A Piece Of The Ip Pie: Making Room At The Table For Performers’ Rights, Meagan A. Sharp

Georgia Journal of Law & Technology

Creators protect their valuable intellectual property interests through copyright. Historically, stage performers struggled to secure copyright ownership in their performances within a larger production. As the theatre landscape changes, however, trends indicate that producers will increasingly rely on performers to develop characters and shows. This reliance could prove to be an exploitative practice if performers do not receive additional compensation for their part in creating successful works. This Note first examines the meanings of authorship, fixation, and control under the Copyright Act of 1976, then widens its lens to consider alternate interpretations of these technical terms in light of an …

From America Online To America, Online: Reassessing Section 230 Immunity In A New Internet Landscape, Madeleine E. Blair

Georgia Journal of Law & Technology

In 1996, Congress passed the Communications Decency Act, a body of legislation aimed at regulating a nascent internet. Section 230 of the Act has become a subject of contention on both sides of the political aisle due to an immunity provision in the law barring private actions against online service providers for the conduct of those services’ users. Few lawsuits against online entities have survived this immunity provision. But two successful cases, Lemmon v. Snap, Inc. and A.M. v. Omegle.com, LLC, have used a products liability theory to overcome the limitation.

This Note examines Section 230 in light of these …

Measuring Change In Copyright Exceptions For Text And Data Mining, Michael Palmedo, Momina Imran, Miguel Alvarenga, Luca Schirru, Duc Le

Joint PIJIP/TLS Research Paper Series

Copyright exceptions for researchers are under debate at the World Intellectual Property Organization and within domestic governments, yet empirical research in this area is rare. In this early working paper, we aim to add to this nascent body of research. We expand PIJIP’s previous review and classification of copyright exceptions in WIPO Members’ laws by tracing changes in the laws over time. We find that most countries have copyright exceptions allowing some unauthorized uses for research purposes. However, most countries’ exceptions restrict some mix of the users, uses, or types of works that are allowed. High-income countries tend to be …

Compliance Of National Tdm Rules With International Copyright Law: An Overrated Nonissue?, Martin Senftleben

Joint PIJIP/TLS Research Paper Series

Seeking to devise an adequate regulatory framework for text and data mining (TDM), countries around the globe have adopted different approaches. While considerable room for TDM can follow from the application of fair use provisions (US) and broad statutory exemptions (Japan), countries in the EU rely on a more restrictive regulation that is based on specific copyright exceptions. Surveying this spectrum of existing approaches, lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure …

The Inherent Monetary Incentive Of Intellectual Property Rights And The Failure Of Intellectual Property Waivers To Recognize This Motive, Ellaheh D. Sims

Barry Law Review

No abstract provided.

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

William & Mary Law Review

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

The Perks Of Being Human, Max Stul Oppenheimer

Washington and Lee Law Review Online

The power of artificial intelligence has recently entered the public consciousness, prompting debates over numerous legal issues raised by use of the tool. Among the questions that need to be resolved is whether to grant intellectual property rights to copyrightable works or patentable inventions created by a machine, where there is no human intervention sufficient to grant those rights to the human. Both the U. S. Copyright Office and the U. S. Patent and Trademark Office have taken the position that in cases where there is no human author or inventor, there is no right to copyright or patent protection. …

Know When To Hold Them, When To Fold Them, And When To Walk Away: Tiktoks Are Professional Sports Franchises' Ace In Collective Bargaining Negotiations, Angelica Varona

Pepperdine Law Review

TikTok, the social media app, has become both a central force in entertainment, creating a slew of influencers and young celebrities, as well as an important tool in all things branding and marketing. Athletes have recognized the value of social media and fan engagement and have taken to becoming content-creators on the platform. The growing presence of professional athletes on the app brings up important issues of copyrightability and ownership of the content they are producing. This Comment considers the nature of athlete content-creation on TikTok as well as the employment scheme and contractual responsibilities that form a part of …