Intellectual Property Law Commons^™

A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary

Publications

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

Cracking The Copyright Dilemma In Software Preservation: Protecting Digital Culture Through Fair Use Consensus, Peter Jaszi, Patricia Aufderheide, Brandon Butler, Krista L. Cox

Scholarly Articles in Law Reviews & Journals

Copyright problems may inhibit the crucially important work of preserving legacy software. Such software is worthy of study in its own right because it is critical to accessing digital culture and expression. Preservation work is essential for communicating across boundaries of the past and present in a digital era. Software preservationists in the United States have addressed their copyright problems by developing a code of best practices in employing fair use. Their work is an example of how collective action by users of law changes the norms and beliefs about law, which can in turn change the law itself insofar …

Trends In Fashion Law: Striking The Proper Balance Between Protecting The Art Form And Sustaining A Thriving Online Market, Elisabeth Johnson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Sample Solution: How Blockchain Technology Can Clarify A Divided Copyright Doctrine On Music Sampling, Angelo Massagli

University of Miami Business Law Review

This article will examine how blockchain technology can clarify the complex and inconsistent judicial approach to the copyright doctrine regarding music sampling. As it stands today, circuit courts are divided over how to handle copyright infringement stemming from unlicensed music sampling. The first approach is simple: if you want to sample, get a license. The second approach is more lenient and applies a de minimis standard that forces courts to make fact sensitive, case–by–case decisions regarding whether or not the sample of the original work is sufficient enough to be defined as an infringement. The reason for this split in …

Freebooting On Facebook -- Should The Social Media Giant Face Liability?, Nicholas J. Tait

Journal of Intellectual Property Law

No abstract provided.

The Curious Case Of Cady Noland And The Disappearing Cabin, Amanda Hoefer

Journal of Intellectual Property Law

No abstract provided.

Location Unaware: Developing A Standard Of Secondary Liability For Location-Aware Technology Developers, Joseph Phillip Sklar

Journal of Intellectual Property Law

No abstract provided.

Ereserves, Annotations, And Registration: Copyright At The 11th Circuit, Stephen Wolfson

Presentations

This presentation discusses eReserves, the 11th circuit and copyright issues surrounding the Georgia State University case heard by Judge Evans in 2008.

The Costs Of Trademarking Dolls, Jessica Silbey

Faculty Scholarship

Professor Curtin’s article, Zombie Cinderella and the Undead Public Domain, takes a recent case from the Trademark Trial and Appeal Board (TTAB) as the basis for an argument that trademark doctrine needs stronger protection against the exclusive commercial appropriation of characters that are in the public domain. In that case, a doll manufacturer sought to register the term “Zombie Cinderella” for a doll that was zombie-ish and princess-like. The examiner refused registration because the term “Zombie Cinderella” for this kind of doll was confusingly similar to the mark for Walt Disney’s Cinderella doll. Although the TTAB overturned the examiner’s …

Intellectual Property In Experience, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

In today’s economy, consumers demand experiences. From Star Wars to Harry Potter, fans do not just want to watch or read about their favorite characters— they want to be them. They don the robes of Gryffindor, flick their wands, and drink the butterbeer. The owners of fantasy properties understand this, expanding their offerings from light sabers to the Galaxy’s Edge®, the new Disney Star Wars immersive theme park opening in 2019.

Since Star Wars, Congress and the courts have abetted what is now a $262 billion-a-year industry in merchandising, fashioning “merchandising rights” appurtenant to copyrights and trademarks that …

Equitable Resale Royalties, Brian L. Frye

Journal of Intellectual Property Law

A “resale royalty right” is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. Many countries have created a resale royalty right, but the United States has not, and a federal court recently held that a resale royalty right created by California was preempted by federal law.

Commentators disagree about the justification of the resale royalty right. Supporters argue that equity entitles artists to a resale royalty right, which also encourages the production of artwork and protects artists from exploitation. Opponents argue that the resale royalty right …

Playing To Their Passion: A Legal Research Course That Resonates With Law Students, Susan Drisko Zago

Law Faculty Scholarship

The first year of law school is chock-full of new experiences. Students can become overwhelmed in the face of so much change that they forget why they chose law school as a career path. They often lose sight of their end goal and need a touchstone to ground them back to their initial interests. Legal Research is the ideal first-year class to connect the acquisition of legal skills with interesting topics in a way that encourages students’ engagement in their present and future learning. By adding a student-selected subject context to their class, Legal Research instructors can incorporate contextualized learning …

The User Rights Database: Measuring The Impact Of Opening Copyright Exceptions, Sean Flynn, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

International and domestic copyright law reform around the world is increasingly focused on how copyright exceptions — a.k.a. “user rights” —should be expanded to promote maximum innovation, creativity, and access to knowledge in the digital age. These efforts are guided by a relatively rich theoretical literature. However, few empirical studies explore the social and economic impact of expanding user rights in the digital era. One reason for this gap has been the absence of a tool measuring the key independent variable – changes in copyright user rights over time and between countries. We are developing such a tool, which we …

"Distinctive Sounds": A Critique Of The Transformative Fair Use Test In Practice And The Need For A New Music Fair Use Exception, Kristin Bateman

Seattle University Law Review

The Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts,” resulting in our modern regime of patent, trademark, and copyright law. Over time, however, this artistic tradition of copying has collided with more modern concepts of intellectual property rights, especially copyright protections. The advent of the internet as well as state-of-the-art recording and mixing software has vastly increased opportunities to copy, remix, sample, parody, and otherwise alter the work of other artists, particularly musicians. More than twenty years after Campbell v. Acuff-Rose Music, transformative fair use has become the predominant test courts have used to …

The Lost Tort Of Moral Rights Invasion, Patrick R. Goold

Akron Law Review

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply …

Super Bowl I, Jazz Radio, And The Glass Menagerie: Copyright, Preservation, And Private Copies, R. Anthony Reese

Akron Law Review

Copyright law is often described as providing incentives to make and disseminate creative works. Copyright law should also seek to foster the preservation of creative works so that people can enjoy, use, study, critique, and build upon them long after they are first created. Traditionally, copyright law fostered preservation largely because most copyright owners principally exploited their works by making and distributing many tangible copies of those works. Those copies could end up in many different hands, and each copy could potentially survive into the future. Some kinds of works, though, were disseminated principally by performance, and as a result, …

Marching To The Beat Of The Eu's Drum: Refining The Collective Management Of Music Rights In The United States To Facilitate The Growth Of Interactive Streaming, Gary W. Hunt Iii

Indiana Journal of Global Legal Studies

In the digital era, interactive streaming is now the preferred method for music consumers to access their favorite albums and songs. The traditional copyright system used to administer music rights and royalties has not evolved accordingly, which not only impedes progress by music platform innovators, but also frustrates artist, labels, and composers who are unable to reap the benefits of their music rights. This Note examines the complex process interactive streaming services undergo to obtain the rights necessary to stream music through their platforms, which involves a discussion of collective rights organizations. This Note then argues that the European Directive …

Revoking The "Get Out Of Jail Free Card": How Mavrix Photographs, Llc V. Livejournal, Inc. Could Revolutionize User-Generated Safe Harbor Protections Under § 512(C) Of The Digital Millennium Copyright Act, Caitlin Oswald

Loyola of Los Angeles Law Review

No abstract provided.

Copyright And Underwater Cultural Heritage, Tyler T. Ochoa

Faculty Publications

This article will focus on three aspects of copyright law as it applies to the photography of underwater cultural heritage. First, to what extent can a salvor claim exclusive rights to photograph a particular site? Second, who is the author (or who are the authors) of such underwater photography, which increasingly involves the use of remote-controlled robotic drones? Third, to what extent can a State control the use of underwater photography that falls within its territorial waters?8 All three of these aspects have been the subject of lawsuits and judicial opinions in the United States; and those opinions shed light …

Who's Afraid Of Swiss Cheese? Resolving The Copyright Claims Of Non-Coauthors, D. Sean West

Seattle University Law Review Online

No abstract provided.

Transformed, I'M Sure: A (Polite) Introduction To Fair Use In Dh, Jill Cirasella

Publications and Research

This presentation looks at how the words "including" and "such as" in the fair use section of United States copyright law (i.e., Section 107 of Title 17 of the United States Code) allow for unforeseen fair uses, including transformative works made by digital humanists.

Illustrating A Technical Manual: Copyright And Fair Use In A Real World Professional Context, Karyn Hinkle

Library Faculty and Staff Publications

This lesson was developed for students preparing to enter professional practice who were assigned to write and/or illustrate a technical howto manual on a topic of their choice (how to put on ski boots, draw blood, use a fitness tracking app, etc.). The teaching librarian conducts a class session on finding and creating images to illustrate the manuals and teaches differences between using copyrighted and non-copyrighted images. The students work on finding images in the public domain, creating their own images, and incorporating copyrighted images via Creative Commons licenses and the principle of fair use. Librarians can teach this lesson …

Linking On The Internet And Copyright Liability: A Clarion Call For Doctrinal Clarity And Legal Certainty, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions: 1. Do these forms of online activity constitute acts of communication (or making available) in the first instance? 2. Should they fall within the purview of Art. 3(1) of the EU Information Society Directive and be subject to potential primary/direct liability (as opposed to accessory/indirect liability)?It …

How Copyright Law Can Fix Artificial Intelligence's Implicit Bias Problem, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

As the use of artificial intelligence (AI) continues to spread, we have seen an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing. These biases threaten to overshadow AI’s technological gains and potential benefits. While legal and computer science scholars have analyzed many sources of bias, including the unexamined assumptions of its often homogenous creators, flawed algorithms, and incomplete datasets, the role of the law itself has been largely ignored. Yet just as code and culture play significant roles in how AI agents learn about and act in the …

Linking On The Internet And Copyright Liability – A Clarion Call For Doctrinal Clarity And Legal Certainty, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions:1.Do these forms of online activity constitute acts of communication (or making available) in the first instance?2.Should they fall within the purview of Art. 3(1) of the EU Information Society Directive and be subject to potential primary/direct liability (as opposed to accessory/indirect liability)?It is hoped that this …

The Blessing Of Talent And The Curse Of Poverty: Rectifying Copyright Law's Implementation Of Authors' Material Interests In International Human Rights Law, Saleh Al-Sharieh

Notre Dame Journal of International & Comparative Law

The International Covenant on Economic, Social and Cultural Rights (ICESCR) grants authors the right to the protection of the material interests resulting from their intellectual works. The Committee on Economic, Social and Cultural Rights interpreted these interests to comprise the ability to achieve an adequate standard of living (as a minimum). This paper argues that copyright law provides a useful yet incomplete model for the protection of authors’ material interests. Copyright creates the legal environment necessary for establishing a market for intellectual works but does not guarantee its benefits to authors. Therefore, States Parties to the ICESCR should …

“Wake Up, Mr. West!”: Distinguishing Albums And Compilations For Statutory Damages In Copyright Within A Streaming–Centric Music Economy, Tyler Laurence

University of Miami Business Law Review

The concept of the music album has been a vital cornerstone of the recorded music industry since its adoption in the form of the long–play vinyl record in 1948. For over sixty years, the ability for artists to package a cohesive collection of performances has remained of paramount priority and an art within itself, notwithstanding the flurry of technological innovations that have altered the album’s size, shape, length, and interactivity. These collections of songs have even withstood the so–called “era of unbundilization,” as digital music services declared a new piecemeal distribution standard of albums through the turn of the century. …

Music As A Matter Of Law, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where typically multiple features of eligible subject matter are eligible for protection. Yet things are now changing. Recent judicial decisions are beginning …

The Battle To Define Asia’S Intellectual Property Law: From Tpp To Rcep, Anupam Chander, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

A battle is under way to decide the intellectual property law for half the world’s population. A trade agreement that hopes to create a free trade area even larger than that forged by Genghis Khan will define intellectual property rules across much of Asia and the Pacific. The sixteen countries negotiating the Regional Comprehensive Economic Partnership (RCEP) include China, India, Japan, and South Korea, and stretch to Australia and New Zealand. A review of a leaked draft reveals a struggle largely between India on one side and South Korea and Japan on the other over the intellectual property rules that …

Oops!... I Infringed Again: An Analysis Of U.S. Copyright And Its Intended Beneficiaries, Gabriele A. Forbes-Bennett

Student Theses and Dissertations

This paper seeks to establish the reasons why federal copyright protection was created, discuss the shifts in reasoning behind major amendments, and explore its effects on copyright holders and the public, with a slight focus on the music industry. Federal copyright has existed in the United States since the late 1700s, with the creation of the Copyright Act in 1790. Adopted from the first copyright law ever created, the English Statute of Anne (1710), the Copyright Act was meant to protect citizens from piracy in a world where the risk of such a thing was rapidly increasing. The stated objective …