Intellectual Property Law Commons^™

Adapting Indian Copyright: Bollywood, Indian Cultural Adaptation, And The Path To Economic Development, Michael Goodyear

Articles & Chapters

Bollywood and the Indian film industry have enjoyed enormous success as one of the largest producers of movies in the world. Yet despite the bright image of Indian cinema producing over a thousand movies a year and selling billions of tickets, the industry has faced controversy over the practice of copying expression, sometimes practically scene for scene, in U.S. and other films and adapting them into a version that reflects Indian social and cinematic customs and mores (“Indian cultural adaptation”). A long-standing practice, Indian cultural adaptation in Bollywood has only attracted the attention of Hollywood studios in the past twenty …

Retelling Copyright: The Contributions Of The Restatement Of Copyright Law, Jessica Silbey, Jeanne Fromer

Faculty Scholarship

This Article was written for a special issue on the American Law Institute’s (ALI) Restatement of Copyright Law.

Since the American Law Institute (ALI) launched in the early twentieth century, its mission has been “the clarification and simplification of the law and its better adaptation to social needs ... [and] to secure the better administration of justice.” A principal way it has pursued that mission has been through its Restatements of Law project. By their nature, Restatements of Law reflect tensions between what it means to “restate” and reform the law. As the ALI has grown and the legal profession …

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Music Industry: Drowning In The Stream, Jonathan Croskrey

Journal of the National Association of Administrative Law Judiciary

The Department of Justice is reviewing two of it's oldest consent decrees, which were entered into with ASCAP and BMI. ASCAP and BMI are the two original performing rights organizations and existed well before streaming. This article analyzes copyright and antirust law through the lens of modern technology and the current landscape of the music industry. It examines whether the consent decrees should be removed or modified and what the consequences of each would be.

The Right Of Copying Of Protected Works For Personal Use; The Fact And The Law: A Comparative Study., Samer Mahmoud Al-Dalalaa

UAEU Law Journal

As the copyright legislations have been adopting Exceptions on the Financial Rights of copyright holders and related rights as a cornerstone of the cultural development in order to enable the public to exploit these works, especially when it becomes difficult to get these works in a traditional way, the misunderstanding of the personal copy for the most of the copyright corporation researchers created a gap between the reality of this copy and its justifications on one side, and the different practicing which might be justified by different means on the other side. Basically the legislation should be the mechanism which …

Platform Liability Under Article 17 Of The Copyright In The Digital Single Market Directive, Automated Filtering And Fundamental Rights: An Impossible Match, Christophe Geiger, Bernd Justin Jütte

Joint PIJIP/TLS Research Paper Series

The Directive on Copyright in the Digital Single Market (CDSM Directive) introduced a change of paradigm with regard to the liability of some platforms in the European Union. Under the safe harbour rules of the Directive on electronic commerce (E-Commerce Directive), intermediaries in the EU were shielded from liability for acts of their users committed through their services, provided they had no knowledge of it. Although platform operators could be required to help enforce copyright infringements online by taking down infringing content, the E-commerce Directive also drew a very clear line that intermediaries could not be obliged to monitor all …

The Internet Archive’S National Emergency Library: Is There An Emergency Fair Use Superpower?, Aaron Schwabach

Northwestern Journal of Technology and Intellectual Property

On March 24, 2020, the Internet Archive announced that it would create a National Emergency Library offering no-waitlist borrowing of all of the books in its collection. In effect, this allowed unlimited, if temporary, downloads of copyrighted works. The National Emergency Library was presented as a response to the current national and global public health crisis; however, nothing in either the Copyright Act, 17 U.S.C. § 108 or the aspirational documents of ControlledDigitalLending.org provides a legal basis for a library to lend out more copies of a work at one time than it actually owns. Nor does the case law …

You Belong With Me: Recording Artists’ Fight For Ownership Of Their Masters, Ann Herman

Northwestern Journal of Technology and Intellectual Property

Copyright law, governed by the Copyright Act, is based on utilitarian theory, which balances artists’ interests in ownership of theircreations with the public’s interest in accessing and enjoying such creations. Copyright law provides for rights for creators of sound recordings, which include master rights—the recording artist’s copyright in the recording. Taylor Swift has brought the concept of master rights into the forefront of pop culture. In June 2019, Swift’s masters—the original sound recordings of her songs—were sold, and she publicly aired her dissatisfaction with the sale, as well as with overall premise that artists do not have a complete right …

A License To Plagiarize, Brian L. Frye

University of Arkansas at Little Rock Law Review

No abstract provided.

Code Of Best Practices In Fair Use For Open Educational Resources: A Guide For Authors, Adapters & Adopters Of Openly Licensed Teaching And Learning Materials, Meredith Jacob, Peter Jaszi, Prudence S. Adler, William Cross

Copyright, Fair Use, Scholarly Communication, etc.

This code of best practices includes descriptions, hard cases, principles, and considerations for fair uses of materials in open educational resources with respect to United States copyright law, and with some discussion of copyright outside the United States context.

Open Educational Resources and Fair Use

Educators, librarians, and institutions have invested in the creation of openly licensed, freely distributed open educational resources (OER) to advance a wide range of goals within the educational system. Open educational resources enable flexible and open pedagogy; increase access to authorship and facilitate representation of different student experiences; and increase equity by reducing the barriers …

So You Want To Be An Author: A Comparative Analysis Of The Authorial Rights Awarded To Performers, Daniel Gomez

St. John's Law Review

(Excerpt)

In his classic 1980 song “On the Road Again,” Willie Nelson articulates that “the life [he] love[s] is making music with [his] friends.” This affinity for the life of a traveling performer likely has little to do with his authorial rights under the Copyright Act. However, as this Note demonstrates, Mr. Nelson indeed benefited from favorable authorial rights when compared to other types of performers, beyond the rights he acquired as the song’s writer. Specifically, the current law around the default authorial rights of performers provides greater protection to performers of sound recordings than it affords to visual and …

Maximizing Intellectual Property: Optimality, Synchronicity, And Distributive Justice, David Blankfein-Tabachnick

St. John's Law Review

(Excerpt)

This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves …

The Extent To Which The Recitation Of The Holy Quran Is Protected According To The Law Of Copyright And Neighboring Rights And The Nature Of The Pertinent Right: Study Under The Jordanian And The Emirati Laws, Firas Kasassbeh

UAEU Law Journal

This study examines to which extent the reciting of the holy Quran is protected by the copyright and neighboring rights laws and the nature of the Quranic reader’s right according to Jordanian & UAE copyright laws. At the judicial and jurisprudential levels, this issue is still controversial. Such controversy may refer to the legislative ambiguity surrounding this issue, which agitates the debate over whether there is innovation in the recitation of the holy Quran.

The study showed that there is innovation in the recitation of the holy Quran. This innovation appears through the distinguished style of the recitation and the …

Library Of Congress [Docket No. 2021-1] Announcement Of Copyright Public Modernization Committee, Carla D. Hayden

Copyright, Fair Use, Scholarly Communication, etc.

Action: Notice of convening of IT modernization public stakeholder committee.

Summary: The Library of Congress is convening a public committee to enhance communication and provide a public forum for the technology-related aspects of the U.S. Copyright Office's modernization initiative. At this time, the Library is announcing that it will accept applications from qualified members of the public to serve on this committee. The scope of contributions made by the committee are limited to the specific topics set forth in this notice. Membership will be on a volunteer basis, with the expectation of in-person or virtual participation at two open forums …

From Blurred Lines To Blurred Law: An Assessment Of The Possible Implications Of "Williams V. Gaye" In Copyright Law, Hannah Patton

Georgia Journal of Law & Technology

In December 2018, panic spread throughout the music industry in light of headlines reporting that the Ninth Circuit Court of Appeals upheld the lower court’s verdict that the 2013 hit song “Blurred Lines” by Robin Thicke and Pharrell Williams infringed Marvin Gaye’s “Got to Give it Up,” released in 1977. In addition to the tremendous $5.3 million award ordered for the Gaye estate, the Blurred Lines Case resulted in fear that the holding could create precedent for allowing the “style” or “groove” of a song to be considered subject to copyright. Since then, industry insiders, lawyers, and commentators have feared …

John Hemings' Monticello And Poplar Forest, J. Wesley Giglio

Georgia Journal of Law & Technology

A discussion of John Hemings' creative architectural contributions to Monticello and Poplar Forest, Thomas Jefferson's Virginia Estates. Author argues that Hemings, an enslaved person and a master carpenter, made vital and creative contributions to the building of the two estates which merit legal recognition. Author discusses how legal ideas about moral rights and statutory protections in the Architectural Works Copyright Protection Act could be adapted to cure a historica and representative injustice.

The Best Laid Plans: How Dmca Sec. 1201 Went Awry, Smothering Competition And Creating Giants,And Where We Go Now, Tyler Fabbri

Georgia Journal of Law & Technology

In 1998, Congress passed the Digital Millennium Copyright Act with the express intention of protecting the intellectual property of copyright holders from the growing threats of digital piracy and information sharing brought about by an increasingly digital society.

Among the law’s many provisions is §1201, which works to prohibit circumnavigation of digital protections copyright holders may put on protected works—in essence, innovators or competitors would be unable to develop technology or programs to bypass security measures put into place by primary creators. While this provision seems facially reasonable, it has effectively served as a means to quash adversarial interoperability.

Adversarial …

Cross-Jurisdictional Analysis Of Damage Awards In Copyright Infringement Cases, Ioana Vasiu, Lucian Vasiu

Georgia Journal of Law & Technology

Copyright infringement is a widespread phenomenon that produces massive financial losses to stakeholders. Based on an extensive examination of damage awards in copyright infringement cases from the United States, Canada, Singapore, and Italy, this article proposes a comprehensive cross-jurisdictional analysis. The analysis regards types, factors, methodologies, and arguments. This article's findings can be used to adjust the provisions regarding damage awards, to improve the litigation of such cases, to elaborate educational materials, for professional programs or law school clinics, and to develop better prevention policies. The proposed improvements could lead to a more unified approach to damage awards, increase the …

The Impact Of Implementing A 25-Year Reversion/Termination Right In Canada, Paul J. Heald

Georgia Journal of Law & Technology

No abstract provided.

Pgs, I Love You: Rebuilding Copyright For Architecturally-Situated Pictorial, Graphic, And Sculptural Works, Llewellyn Kittredge Shamamian

Washington and Lee Law Review Online

Over twenty years ago, in Leicester v. Warner Bros., the Ninth Circuit limited copyright protection for a certain sculptural complex located within a downtown Los Angeles high‑rise. The court determined that the sculpture, otherwise protected from pictorial reproduction, could be visually replicated without infringing on the artist’s copyright because it was part of its architectural context.

This Note explores two recent copyright cases where companies capitalized on painted street art, using the works as backdrops for social media advertising. The resulting litigation calls into question Leicester’s holding and the extent to which it may allow visual reproduction of …

Is There A New Extraterritoriality In Intellectual Property?., Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

Intellectual property rights are territorially limited. In the main, these rights do not extend outside of the country who has afforded parties the intellectual property. Instead, they are limited to activities within the country. Or so the theory goes. In the global marketplace, such territorial rights do not map well onto the commercial realities of many companies. Given the global marketplace and the intangible-yet-territorial nature of intellectual property rights, IP has sat squarely in the middle of concerns about extraterritoriality.

The Supreme Court has long articulated the presumption against the extraterritorial application of U.S. law. This is not to say …

Introducing The Copyright Anxiety Scale, Amanda Wakaruk, Céline Gareau-Brennan, Matthew Pietrosanu

Copyright, Fair Use, Scholarly Communication, etc.

Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with …

Copyright Fair Use And The Digital Carnivalesque: Towards A New Lexicon Of Transformative Internet Memes, David Tan, Angus J. Wilson

Fordham Intellectual Property, Media and Entertainment Law Journal

The influence of social media in the 21st century has led to new social norms of behavior with individuals presenting themselves to others, whether physically or virtually, on various social media platforms. As a result, these new trends have led recent society to be characterized as a “presentational cultural regime” and a “specular economy.” In a Bakhtinian digital carnivalesque, internet memes present a feast of challenges to exceptions and limitations in copyright law. Memes encompass a wide range of expression about the human experience, while also existing as a playful mode of culturally permissible expression in online social communications rather …

Pausing The Game: Esports Developers’ Copyright Claims To Prevent Or Restrict Tournament Play, Alexander Tu

Vanderbilt Journal of Entertainment & Technology Law

Unlike traditional sports, esports are-—at their core—-video games, which must be designed and programmed by a game company. These video game developers are the copyright owners of the esports titles they create, which, in turn, results in continued developer control even after a player has purchased or downloaded the game. Because there is no relevant court precedent that is directly applicable to the world of esports, game developers unimpededly exert their copyright authority in order to restrict third-party tournaments that utilize their games, and in some cases, prevent those events from occurring altogether. This use of copyright authority is an …

Saving Substantial Similarity, Daryl Lim

Faculty Scholarly Works

Substantial similarity, an analysis of the similarity between two works, is the fulcrum of copyright infringement. Recent cases involving Led Zeppelin's signature song “Stairway to Heaven,” the award-winning movie “The Shape of Water,” and Google and Oracle's dispute over computer code all required courts to grapple with this fundamental analysis. This Article reveals that today's copyright plaintiffs have only a one-in-ten chance of winning--the worst in a century--and also discusses the cause of this trend--defendants' devastatingly effective use of pretrial motions and the rise of lawsuits against nonrival defendants. Scholarly debates on substantial similarity typically revolve around the works of …

Golan V Holder’S Impact On Orchestra Performance Programming: Annotated Bibliography, Craig M. Winston

Musicology and Ethnomusicology: Student Scholarship

This project will examine how changes in copyright law enacted with the Supreme Court’s 2012 decision on Golan v Holder affect the performance programming of American symphony orchestras. The court’s decision brought many previously public-domain, foreign works under copyright protections in accordance with the Uruguay Rounds Agreement Act; among the musical works were frequently performed pieces by composers such as Prokofiev, Rachmaninoff, and Stravinsky. The result is that previously free or low-cost works would now have to be licensed or rented for performance at great expense to the performing group. I will seek to test a hypothesis proposed by legal …

Creating An Open Works Workshop, Jenelys Cox, Nicolas Parés

University Libraries: Staff Scholarship

Learn how to use Creative Commons licensing, choose a hosting platform, and remix open resources. This workshop explores open resource repositories, examines Creative Commons licenses, remixes materials into a group creative work, and walks participants through considerations when hosting works. This workshop supplies valuable, hands-on experience for participants.

Fairness, Copyright, And Video Games: Hate The Game, Not The Player, Shani Shisha

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of literature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has explored the social norms that pervade the world’s largest content microcosm—the sprawling video game community.

Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture industries. But despite its meteoric rise, the video game industry has provoked little attention from copyright scholars. This Article is the first to explore the shifting …

The Right Of Reattribution, Brian L. Frye

Law Faculty Scholarly Articles

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …

Who Killed The Radio Star? How Music Blanket Licensing Distorts The Production Of Creative Content In Radio, Ariel Katz, Eden Sarid

American University Law Review

According to popular and scholarly belief, video killed the radio star. The golden age of radio, culminating in the 1930s and 1940s, was gone with the rise of television in the 1950s and 1960s. In this Article, we advance the claim that television’s role in the “death” of the radio star has been more limited than commonly believed. A major culprit, we argue, is the common licensing practice of musical content for broadcasting, or more precisely, the blanket license issued by copyright collective management organizations (CMOs). By setting a zero marginal price for broadcasting additional songs from the CMO’s repertoire, …