Intellectual Property Law Commons^™

Intellectual Heirs Property: Why Certain Musical Copyrights Should Be Included In The Heirs Property Reform Movement, Austin Weatherly

Georgia Journal of Law & Technology

The modern heirs property reform movement seeks to ameliorate the issues caused by the procedures governing the inheritance of real property from landowners who die intestate. This procedure can have a negative impact on heirs and the value of their inherited property. The reform movement, as it stands, only seeks to resolve the issues created by these procedures in the real property context. The rhetorical basis for the modern heirs property reform movement largely focuses on closing the racial wealth gap in the United States and slowing the wealth bleed from one black generation to the next. Many of the …

The Construction And Defense Of Artistic Authorship In Contemporary Copyright Disputes, Sophie Bell

Theses and Dissertations

Through the lens of three contemporary copyright infringement cases, this thesis examines topics in the field of art law, each grounded in the recent history of art and its controversies, in order to illuminate the unique set of legal conditions shaping contemporary artmaking, sale, and exhibition in the United States.

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law School Faculty Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

The Chinese Copyright Dream, Sean A. Pager, Eric Priest

Pepperdine Law Review

Chinese President Xi Jinping’s vision of the “Chinese Dream” has captured the popular imagination. As a slogan, the Chinese Dream is intentionally broad. Intended to inspire rather than prescribe, it captures diverse aspirations including dreams of material prosperity, environmental sustainability, national rejuvenation, and global leadership. The Dream’s ramifications continue to ricochet through state policy echelons and lend themselves to competing interpretations. In that spirit, we advance a modest suggestion: that the Chinese Dream should be, at least in part, a dream about copyright law. A more effective copyright system would bolster China’s creative industries, generating a diverse supply of high-quality …

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Pepperdine Law Review

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu

Pepperdine Law Review

In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This Amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent Amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process. This Article begins by mapping the long and winding road …

Thieves In The Temple: The Scandal Of Copyright Registration And African- American Artists, Kevin J. Greene

Pepperdine Law Review

Copyright registration is the currency of copyright transactions in music, film, and television and is essential for pursuing infringement claims and ownership disputes. Despite copyright registration’s outsized reach across the copyright spectrum and importance to the copyright industries, the U.S. Copyright Office does not verify claims of copyright authorship or ownership. No express mechanism exists to challenge false copyright registrations in the Copyright Office, and the penalties for falsely claiming copyright authorship are paltry in comparison to the potential gains. This Article contends that lax copyright registration standards call into question the legitimacy of the registration system and that the …

The Fiction Of Nfts And Copyright Infringement, Emily T. Behzadi

Faculty Scholarship

In the first quarter of 2021, the sales of art in the form of Non-Fungible Tokens (“NFTs”) reached over $200 billion dollars. The arrival of NFTs in the mainstream art market has profoundly shaped the way artists exploit their works. This sensational boom has attracted some of the world's biggest names across pop culture and sports, including celebrities such as Snoop Dogg, Paris Hilton, Post Malone, Tom Brady and Rob Gronkowski, to create their own NFT art. Director Quentin Tarantino has also capitalized on this craze through the creation of an NFT collection based on the film Pulp Fiction. However, …

Hip Hop And The Law : Presented By Intellectual Property Law Association 03/31/2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Copyright's Deficit: Technology, Modern Consumer Preferences, And The Music Marketplace, Taylor A. Collins

Pace Intellectual Property, Sports & Entertainment Law Forum

While it is clear, and arguably has been for the last five years, that paid subscription streaming is the future of the music industry, the law has failed to keep pace with “modern consumer preferences and technological developments in the music marketplace.” The Music Modernization Act of 2018 (MMA), which amends the U.S. copyright law, 17 U.S.C., is Congress’s effort to keep pace with the music industry by fixing our cumbersome and inefficient music licensing system. The MMA is a step in the right direction, but it falls short of Congress’s goal. Focusing on Title I of the MMA—the Music …

Overdressed & Underprotected: The Not-So Glamorous Side Of The United States Fashion Industry Without Explicit Copyright Protection, Anna Huttner

Cleveland State Law Review

The complexity of fashion designs goes far beyond what is currently trending in Vogue. Intellectual property laws should seek to provide designers with an opportunity to completely protect their work, as well as ensure that fashion designers’ designs will not be replicated and sold for a fraction of the price. Inherent limitations with alternate forms of intellectual property protection emphasize the need for a bright-line rule for copyright protection over fashion designs. To best protect new designers and small brands within the U.S. fashion industry, there must be a standard that explicitly includes and defines accessibility to copyright protection …

Best Practices For Oer In Canada: A Fresh Look At Fair Dealing For Educational Use, Carys Craig

Conference Papers

This presentation was delivered online as part of an event held on 23 February 2022 as part of Fair Dealing Week 2022. This event was co-hosted by the Alberta Copyright Consortium (The University of Alberta, the University of Calgary, Mount Royal University and the Northern Alberta Institute of Technology) and the Lower Mainland Copyright Consortium (Capilano University, Douglas College, the Justice Institute of BC, Simon Fraser University, and the University of British Columbia), along with the participation of the Canadian Association of Research Libraries.

Muddy Waters: Fair Use Implications Of Google Llc V. Oracle America, Inc., Gary Myers

Northwestern Journal of Technology and Intellectual Property

Ooh

In the muddy water we’re falling

Ooh In the muddy water we’re crawling

Holds me down

Hold me now

Sold me out

In the muddy waters we’re falling

— Laura Pergolizzi (LP) - “Muddy Waters,” Lost On You (Vagrant Records 2016)

The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately …

A Musical Cue For Fashion: How Compulsory Licenses And Sampling Can Shape Fashion Design Copyright, Caroline Olivier

Northwestern Journal of Technology and Intellectual Property

The fashion industry is the Wild West of intellectual property law. Fashion design protection is essentially non-existent, and designers take what they want when they want in the form of inspiration or complete copying. As technology advances and enables fashion designs to disseminate at high-tech speeds, there is no longer room for an apathetic approach to fashion intellectual property. If the law is a means for protecting the hard work of up-and-coming artists and providing incentives for innovation, changes must be made.

This note demonstrates how the fashion industry can adopt a copyright and licensing scheme similar to that of …

Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson

William & Mary Law Review

Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.

In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …

Ruth Bader Ginsburg’S Copyright Jurisprudence, Ann Bartow, Ryan G. Vacca

Law Faculty Scholarship

[Excerpt} "When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This Article discusses one of the most interesting: copyright law. During her time as a jurist on …

Technologies Of Servitude Understanding Firmware Tpms As Interests In Personal Property, Anthony D. Rosborough

Canadian Journal of Law and Technology

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks …

After Copyright: Pwning Nfts In A Clout Economy, Brian L. Frye

Law Faculty Scholarly Articles

Copyright is a means to an end, not an end in itself. We created copyright because we wanted to encourage the creation and distribution of works of authorship, not because we wanted to enable copyright owners to control the use of the works they own. We stuck with copyright because it was the best tool we had, despite its flaws. Was copyright ever efficient? No. But marginal improvements matter.

Technology has changed the copyright calculus. Distribution of works of authorship gradually got cheaper and cheaper. And then the Internet made it free. But creation remained costly, even though technology helped …

Are Cryptopunks Copyrightable?, Brian L. Frye

Law Faculty Scholarly Articles

Larva Labs’s CryptoPunks NFTs are iconic. Created in 2017, they were among the first NFTs on the Ethereum blockchain. Four years later, they are among the most valuable, selling for anywhere from $200,000 to millions of dollars.

The CryptoPunks collection consists of 10,000 NFTs, each of which is associated with a unique CryptoPunks image. Everyone knows who owns each CryptoPunks NFT. The Ethereum blockchain provides indelible proof. But people disagree about who owns - and who should own - the copyright in the CryptoPunks images. Most CryptoPunks NFT owners believe they should own the copyright in the image associated with …

Character Copyrightability In Chaos: How Unclear Character Copyrightability Tests Lead To Improper Result, Kathleen Hanley

American University Law Review

Copyright law for fictional characters has been inconsistent since the first character copyright case in 1930. The lack of explicit statutory protection for fictional characters has led circuit courts to develop varying tests to determine character copyrightability. Several of these tests stray from the well-established constitutional principle that copyright protection is available for any work that exhibits a minimal level of originality and creativity. This Comment analyzes three different character copyright tests: (1) the “distinctly delineated” test, (2) the Towle test, and (3) the “stock character” test and argues that the “stock character” test is the appropriate test for courts …

The Subject Strikes Back: Intellectual Property Law, Visual Pleasure, And Resistance In The Arts, John Tehranian

American University Law Review

In which we discuss self-infringement, monkey selfies, wildlife, Oscar Wilde, (Richard) Prince, Prince (Rogers Nelson), kissing sailors, the metaphor of the hunt, fatwās, the Masters, the male gaze, revenge porn, peeping Toms, surveillance art, nudes at the Met, Rastafarians, celebutantes, Andy Warhol, Jeff Koons, Rockwellian tranquility, and the Three Stooges.

Spider-Man: Work From Home And Retain No Copyright Under The Instance And Expense Test, Shahnoor Kamal Khan

American University Law Review

From Spider-Man to Ms. Marvel, superheroes are beloved by many, but owned by the few. Marvel Entertainment retains the copyright to iconic characters such as these, despite the fact that Marvel’s employees did not create them. These characters were created by freelance artists Jack Kirby, Steve Ditko, and Lawrence Lieber, among others. Yet, the Second Circuit ruled in Marvel Characters v. Kirby that these freelance artists have no claim of copyright over their own masterful works. The Second Circuit relied on the instance and expense test for copyright, as opposed to the Supreme Court’s leading copyright decision, Community for Creative …

Authoring Prior Art, Joseph P. Fishman, Kristelia A. García

Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

When Copyright Law Meet Anonymous Street Art, Breanna M. Moe

Marquette Intellectual Property & Innovation Law Review

None

Justice Breyer And Intellectual Property Law, Daniel Sievert

Marquette Intellectual Property & Innovation Law Review

None

When Love Ends: The Division Of Copyright Between Spouses, Tal Itkin

Marquette Intellectual Property & Innovation Law Review

None

The Supreme Court’S Chief Justice Of Intellectual Property Law, Bob Gomulkiewicz

Articles

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

The Ai-Copyright Challenge: Tech-Neutrality, Authorship, And The Public Interest, Carys Craig

All Papers

Many of copyright’s core concepts—from authorship and ownership to infringement and fair use—are being challenged by the rapid rise of generative AI. Whether in service of creativity or capital, however, copyright law is perfectly capable of absorbing this latest innovation. More interesting than the doctrinal debates that AI provokes, then, is the opportunity it presents to revisit the purposes of the copyright system in the age of AI. After introducing the AI-copyright challenge in Part 1, Part 2 considers the guiding principles and normative objectives that underlie—and so ought to inform—copyright law and its response to AI technologies. It proposes …

Culture And Fair Use, Michael Goodyear

Articles & Chapters

The intersections of race and copyright have been underexamined in legal scholarship, despite repeated calls for further scrutiny. The scholarship has so far focused primarily on identifying where copyright has fallen short in protecting the creative works of artists of color. This Article, instead, hopes to offer one viable solution for creating more inclusivity of different cultures in copyright: the approval of cultural adaptations under fair use.
Cultural adaptations—the transforming of preexisting works to reflect the cultural and social mores and norms of a different group—would appear on first glance to be prohibited as derivative works, which, under the Copyright …