Intellectual Property Law Commons^™

Copyright And Distributive Justice, Justin Hughes, Robert P. Merges

Notre Dame Law Review

Is our copyright system basically fair? Does it exacerbate or ameliorate

the skewed distribution of wealth in our society? Does it do anything at all

for disempowered people, people at the bottom of the socio-economic hierarchy?

In this Article we engage these questions. Our goal is to begin a more

comprehensive discussion of the effect the copyright system has on the allocation

of wealth in our society.

The Threat Of Termination In A Dematerialized Art Market, Peter J. Karol

Law Faculty Scholarship

Conceptual and video artworks generally resist reduction to a single, material object. Nevertheless, there remains a robust market for them. Buyers of conceptual pieces will often acquire plans and certificates of authenticity, essentially instructions for realizing the work, rather than a particular physical article. Collectors of video art, for their part, generally attain a copy of the video embedded in a disc or file of some sort. In other words, they attain digital information. Because these artworks lack a core tangible object, however, they depend heavily on copyright licenses to be realized, performed or shown. This, in turn, makes them …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Oseitutu

Faculty Publications

This Article compares the natural rights property framework with the human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition, but they appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Advocates of a human rights approach to intellectual property contend, however, that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

A Cure For Twitch: Compulsory License Promoting Video Game Live-Streaming, Yang Qiu

Marquette Intellectual Property Law Review

New technology always bring challenges to Chinese legislation. In recent years, based on technological development of network transmission, video game streaming platforms like “Twitch.tv” have made “big” money. The problem, however, is that the streaming content on those platforms involve copyrightable video games, which infringe game publishers’ copyright, if the streaming platform lacks authorization. And only a few of the streaming platforms and streamers have licenses from game publishers. Nowadays, most game publishers allow streaming to exist because they view the streaming as free advertisement for their games. By making these allowances, the game publishers stay in their fans’ good …

Keinitz V. Sconnie Nation, Llc: The Seventh Circuit's Necessary Resistance To Defining The Fair Use Doctrine Solely In Terms Of Transformativeness, Alexander Perwich

Marquette Intellectual Property Law Review

Under the fair use doctrine, use of a copyrighted work is not an infringement on a copyright if, after consideration of four factors, a court considers the use to be fair. The four factors courts are required to consider are: (1) “the purpose and character of the use;” (2) “the nature of the copyrighted work;” (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;” and (4) the effect the use has on “the potential market for or value of the original copyrighted work.” A circuit split exists between the Second and …

Copyright Without Copying, Christina Mulligan

Cornell Journal of Law and Public Policy

Digital media and software have broken copyright law. Although a consumer experiences the same work when reading a book printed on paper or copied onto an e-reader, the applications of copyright law to traditional and digital media usage have diverged dramatically because digital works are frequently copied in the course of their use. Copyright theorists have struggled with how to craft legal rules that would align rights in traditional and digital works, frequently proposing new exceptions for digital uses or interpretations of fair use. But there is a more elegant path forward, which has been too difficult to contemplate seriously …

"Free Speech, First Amendment, And New Media For Cons And Festivals" From Pop Culture Business Handbook For Cons And Festivals, Jon Garon

Faculty Scholarship

This article is part of a series of book excerpts from The Pop Culture Business Handbook for Cons and Festivals, which provides the business, strategy, and legal reference guide for fan conventions, film festivals, musical festivals, and cultural events.Although most events are organized by private parties, the location of these events in public venues and the crowd management issues involving free speech make First Amendment and free speech issues a critical component of event management. This excerpt provides a framework for understanding the legal and security issues involving free speech at public events.

Calculating Artists’ Royalty: An Analysis Of The Courts’ Dualistic Interpretations Of Recording Contracts Negotiated In A Pre-Digital Age, Nina Aragon

Cardozo Law Review de•novo

This Note examines the disparity in the courts’ rulings in the Malmsteen and F.B.T. cases, specifically the different ways in which each court interpreted the contractual language of the parties’ preInternet recording agreements, and their application of royalty rates. Part I of this Note provides an overview of the royalty structure used to compute royalty rates for compact discs (CDs). Part I discusses on the economic effects of switching to a digital distribution system, the sales versus license distinction, and the principles relied on by the courts to interpret pre-Internet contracts. Part II of this Note examines the courts’ rulings …

A Transactional Theory Of The Reader In Copyright Law, Zahr K. Said

Articles

Copyright doctrine requires judges and juries to engage in some form of experiencing or “reading” artistic works to determine whether these works have been infringed. Despite the central role that this reading—or viewing, or listening—plays in copyright disputes, copyright law lacks a robust theory of reading, and of the proper role for the “reader.” Reading matters in copyright cases, first, because many courts rely on the “ordinary observer” standard to determine infringement, which requires figuring out or assuming how an ordinary observer would read the works at issue. Second, most courts characterize a key part of infringement analysis as a …

Finding And Using Images, While Respecting Copyright, Roger V. Skalbeck

Law Faculty Publications

Text plays a central role in nearly every lawyer’s life. From cases to codes to contracts, words matter tremendously. At times, words alone are insufficient. A well-selected image can evoke emotion and attract attention. While there are literally millions of images online available for use without cost, a well sourced and properly referenced image should recognize and respect the creator’s intellectual property rights. Here are tips for finding and using images, while respecting copyright.

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Law Faculty Scholarly Articles

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright …

Against Creativity, Brian L. Frye

Law Faculty Scholarly Articles

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement provides that copyright cannot protect an element of a work of authorship that is copied from a previously existing work. But scholars disagree about the meaning of and justification for the creativity requirement.

The creativity requirement should be abandoned because it is irrelevant to the scope of copyrightable subject matter and distorts copyright doctrine by encouraging inefficient “creativity rhetoric.” The purpose of copyright is to encourage the production of economically valuable works of authorship, not creativity.

Protecting Fashion Designs: Not Only "What?" But "Who?", Julie Zerbo

American University Business Law Review

No abstract provided.

Crown Copyright: An Overview For Government Departments, National Archives, United Kingdom

Copyright, Fair Use, Scholarly Communication, etc.

The purpose of this guidance is to provide government departments with a general overview on how Crown copyright is managed. It covers the following: What is Crown copyright? Copyright ownership, re-use of Crown copyright information, and copyright and publishing.

Individual Licensing And Consumer Protection, Lucie Guibault

Articles, Book Chapters, & Popular Press

Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim …

Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig

Articles & Book Chapters

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically …

Reach Out And Touch Someone: Reflections On The 25th Anniversary Of Feist Publications, Inc. V. Rural Telephone Service Co., Tyler T. Ochoa, Craig Joyce

Faculty Publications

2016 marks the 25th anniversary of the Supreme Court’s opinion in Feist Publications, Inc. v. Rural Telephone Service Co., one of the Court’s landmark opinions in copyright law, and one that continues to define the standard of originality for copyrighted works in general and compilations of data in particular. The Feist case, however, was an unlikely candidate for landmark status. Only a handful of court opinions and academic authors had expressed dissatisfaction with the existing state of the law concerning originality and data compilations.scure sources which have enhanced greatly the pages that follow. Further, the Tenth Circuit’s opinion in Feist …

What Is A "Useful Article" In Copyright Law After Star Athletica?, Tyler T. Ochoa

Faculty Publications

In Star Athletica, LLC v, Varsity Brands, Inc., the Supreme Court decided the appropriate test to determine when a feature of a useful article is protectable under §101 of the Copyright Act. However, there is an antecedent question that must be answered first before the Supreme Court's two part test in Star Athetica may be invoked.

The Limits Of “Limitations And Exceptions” In Copyright Law, Jerome H. Reichman

Faculty Scholarship

The “designated exceptions” approach in the European Union and elsewhere becomes obsolete when faced with the needs of digital science to scrutinize and analyze all relevant research results pertinent to any scientific inquiry. Even the fair use exception rooted in U.S. law, while more agile on a case by case approach, is challenged by the scientific communities’ need to reproduce and analyze all available material relevant to any given research project and by the ability of automated knowledge discovery tools to do just that. A more promising model for reform is the “some rights reserved” concept of private ordering that …

J.D. Salinger And Copyright's Rule Of The Shorter Term, E. Townsend Gard

Vanderbilt Journal of Entertainment & Technology Law

Recently, the small publishing house Devault-Graves took on the Salinger Estate in an, almost, epic battle to determine whether the copyright term had ended on three of Salinger's early short stories in each country around the world. Devault-Graves wanted a declaratory judgment stating that if the copyright term had expired in the United States, it would have expired in all other countries with a "rule of the shorter term" (RST). But copyright is never that simple, as Devault-Graves soon found out. This short-lived case provides a useful lens through which to view the property rights as defined by the "limited" …

Incidental Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

As Mark Twain apocryphally observed, “History doesn’t repeat itself, but it often rhymes.” The history of the right of publicity reflects a common intellectual property rhyme. Much like copyright, the right of publicity is an incidental intellectual property right that emerged out of regulation. Over time, the property right gradually detached itself from the regulation and evolved into an independent legal doctrine.

Copyright emerged from the efforts of the Stationers’ Company to preserve its members’ monopoly on the publication of works of authorship. Similarly, it can be argued the right of publicity emerged from the efforts of bubblegum companies to …

Fair Use Is Good For Creativity And Innovation, Bill Patry

Joint PIJIP/TLS Research Paper Series

Commenting on legal debates in other countries is usually bad manners. When, however, the debates concern a law from your own country, and that law is being misrepresented, it may be of service to set the record straight. The record, based on almost 300 years of Anglo-American case law and the experiences of those of us who apply fair use every day in our jobs, demonstrates that fair use is good for creativity and innovation, and in practice works well. You don’t have to take my word for it; if you are willing to put the time in, and have …

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Faculty Publications & Other Works

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made …

Copyright To The Rescue: Should Copyright Protect Privacy?, Deidre Keller

Journal Publications

While some courts have held that “[i]t is universally recognized . . . that the protection of privacy is not the function of our copyright law,” the remedies afforded copyright owners make pursuing copyright claims an attractive option to privacy plaintiffs. Copyright remedies include the removal of digital copies from the internet and the destruction of physical copies. The extent to which copyright ought to protect privacy interests has been considered in various jurisdictions recently but has not been treated comprehensively by contemporary legal scholars in the United States. This piece seeks to undertake that treatment.

Part II of this …

Charting The Contours Of Copyright Regime Optimized For Engineered Genetic Code, Christopher M. Holman

Faculty Works

There is a growing disconnect between the traditional patent-centric approach to protecting biotechnological innovation and the emerging intellectual property imperatives of “synthetic biology,” a promising new manifestation of biotechnology that enables the design and construction of artificial biological pathways, organisms or devices, as well as the redesign of existing natural biological systems. As explained in previous articles, one way to deal with this disconnect would be to expand the scope of copyrightable subject matter to encompass engineered genetic sequences, much in the way that copyright was expanded in the 1970s and 1980s to include computer programs. The present article expands …

Where's The Fair Use? The Takedown Of Let's Play And Reaction Videos On Youtube And The Need For Comprehensive Dmca Reform, Jessica Vogele

Touro Law Review

No abstract provided.

Is Fair Use Actually Fair In The Digital Age For Good-Faith Creators: A Call For A Broader Interpretation Of The Fair Use Doctrine In The Digital Age, Joseph Tromba

Touro Law Review

No abstract provided.

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

Scholarly Works

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …

Confining Cultural Expression: How The Historical Principles Behind Modern Copyright Law Perpetuate Cultural Exclusion, April M. Hathcock

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Artistic Control After Death, Eva Subotnik

Faculty Publications

To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Viewed through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts reflect a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of literature, art, and music is a fundamentally troubling notion. This Article evaluates the instructions authors give with respect to their authorial works against the backdrop of …