Intellectual Property Law Commons^™

We Are Never Getting Back Together: A Statutory Framework For Reconciling Artist/Label Relationships, Harrison Simons

Washington Law Review Online

Taylor Swift could tell you a thing or two about record label drama. Artists like Swift who want to break into the big leagues and top the charts must rely on record labels’ deep pockets and institutional knowledge to do so. But artists, especially young ones, are often asked to sign deals with labels that leave them with little control over their careers. For many, the risk is worth the reward. However, many others come to regret their decision, with careers that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows that artist-label …

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 …

United States Questionnaire Answers: Concerning Artificial Intelligence, Copyright And Related Rights, Philippa Loengard

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

A System Out Of Balance: A Critical Analysis Of Philosophical Justifications For Copyright Law Through The Lenz Of Users' Rights, Mitchell Longan

University of Michigan Journal of Law Reform

Ultimately, this Article has three goals. The first is to offer an analysis of users’ rights under copyright law from four commonly used theoretical perspectives. These are labor, personality, economic and utilitarian theories. In doing so, this Article will demonstrate that the philosophies that underpin modern copyright law support a broad and liberal set of rights for derivative creativity. It will argue that current treatment of derivative works is unnecessarily conservative from a theoretical perspective. Second, this Article will demonstrate how, in spite of theory that supports a healthy community of derivative creativity, those who practice it have been further …

Harmonizing Music Theory And Music Law, Peter Nicolas

Articles

Those litigating and adjudicating music copyright disputes find themselves at the intersection of two complex fields: U.S. copyright law and music theory. While the attorneys and judges typically have at least some experience with the former, neither they nor the jurors typically have formal training in or experience with the latter. As a result, legal opinions purporting to incorporate musical concepts sometimes fail to do so accurately, resulting in decisions that are inconsistent with copyright law and policy.

This Article seeks to harmonize U.S. copyright law with relevant principles of music theory. It begins with an accessible primer on basic …

Jack Daniel's Properties, Inc. V. Vip Products Llc: Brief Of Amici Curiae 30 Trademark Law Professors In Support Of Respondent, Aaron Perzanowski

Appellate Briefs

Amici are 30 law professors who teach and write extensively about trademark law and other intellectual property law subjects. Amici have no personal interest in this case. Amici’s sole interest is in the orderly development of trademark law in a way that serves the public interest, in part by ensuring the proper balance between legitimate trademark interests and strong First Amendment speech interests.<\p>

Trademark law has expanded dramatically in recent decades, opening the door to claims against parties that are primarily selling speech. Those claims would have been inconceivable when the Lanham Act was passed.<\p>

Early courts facing these expanded …

Co-Authorship Between Photographers And Portrait Subjects, Molly Torsen Stech

Vanderbilt Journal of Entertainment & Technology Law

work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. …

Conceptualizing A "Right To Research" And Its Implications For Copyright Law: An International And European Perspective, Christophe Geiger, Bernd Justin Jutte

American University International Law Review

Copyright, at international, European, and national levels, does not provide a legal framework that prioritizes enabling and incentivizing research using protected works and information to the extent necessary and desirable in a digital, data-driven society in order to build a sustainable ecosystem for innovation and creativity. While small progress has been made, for example with the recent introduction of specific exceptions for research purposes and for text and data mining in certain national legislations as well as in the European Union law, a horizontal approach towards a more research-friendly copyright ecosystem has so far failed to evolve. By revisiting international …

The Digital Millennium Copyright Act – In Need Of A Major Software Update, Sabrina Ortega

Michigan Business & Entrepreneurial Law Review

The Digital Millennium Copyright Act (DMCA) unfairly discriminates against copyright holders by allowing online service providers to employ inadequate and outdated takedown protocols of copyright infringement. These protocols promote piracy resulting in illegal advertisement revenue streams. Congress must reform the DMCA to ensure online service providers are held properly accountable when copyright infringement occurs on their platforms. Specifically, the DMCA’s existing takedown protocols should be reformed to ensure online service providers cannot benefit from issues associated with advertisements attached to posts containing infringing material. This Note examines the pertinent sections of the DMCA; relevant caselaw concerning the DMCA, online service …

The Sour Reality Of Copyright Infringement, Vanessa R. Carreno Alvarez

University of San Francisco Law Review

No abstract provided.

The Server Test Quandary And Embedding Permission Culture, Michael Goodyear

Articles & Chapters

The practice of embedding—inserting code that displays content located elsewhere on the Internet—is ubiquitous online. Millions of users insert or encounter embeds daily. As a core type of link, embedding has helped disseminate information far and wide, furthering the goals of both copyright law and the Internet. For over a decade, embedding has been considered lawful under copyright law, guaranteed by a Ninth Circuit doctrine known as the server test, which holds that a person only displays a work when he or she hosts and serves it. This rule, which has greatly influenced the growth of the modern Internet, has …

Learned Hand's Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his …

Understanding Intellectual Property: Expression, Function, And Individuation, Mala Chatterjee

Faculty Scholarship

Underlying the fundamental structure of intellectual property law — specifically, the division between copyright and patent law — are at least two substantive philosophical assumptions. The first is that artistic works and inventions are importantly different, such that they warrant different legal systems: copyright law on the one hand, and patent law on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, and can thereby be the subjects of distinct and delineated legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes …

Misreading Campbell: Lessons For Warhol, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

In Andy Warhol Foundation (AWF) v. Goldsmith, the Supreme Court is set to revisit its most salient fair use precedent that introduced the idea of a “transformative use.” Purporting to rely on the Court’s adoption of “transformative use” as a way of understanding the fair use doctrine in Campbell v. Acuff-Rose Music, Inc., many lower courts, including the district court below, have effectively substituted an amorphous “transformativeness” inquiry for the full statutory framework and factors that Congress and Campbell prescribe. At the oral argument in AWF, the Justices focused on how the transformativeness of a work might …

Co-Authorship Between Photographers And Portrait Subjects, Molly T. Stech

Vanderbilt Law School Faculty Publications

Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author’s choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be …

Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

PD8 represents a great deal of labor, for which the Reporters deserve recognition. As detailed below, however, PD8’s occasional departures from or omissions of statutory text may not only be misleading or confusing, but – as has been the case with prior drafts – often have the result, if not the purpose, of whittling down the scope of copyright protection. In addition to identifying those instances and explaining their consequences, the following comments will suggest clarifications to some of the Comments and Illustrations.

Brief Of Michelle M. Wu As Amicus Curiae, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Copyright is, above all else, a balancing act. This equity principle is especially important when technology collides with traditional copyright. Market effects are certainly an important feature of that balance but must be weighed against other equitable interests, regardless of their technological form. Literary criticism, second-hand sales, and library lending all have the potential to impact sales but nevertheless are considered social goods that copyright is intended to foster.

Controlled digital lending ("CDL") was established to innovate these core, well-established components of copyright law, allowing libraries to secure their collections and maintain their relevance as physical stewards of knowledge in …

The Hollywood Circuit’S Protection Of The Batmobile Provides An Uncertain Future For First Amendment Protections, Nicole Geiser

The Journal of Business, Entrepreneurship & the Law

This Comment analyzes the potentially damaging impact the Ninth Circuit’s decision in Towle could have on modern copyright law and the First Amendment. Part I will provide an overview of modern copyright law, challenges faced when deciding the level of protection that should be afforded to characters, and the important difference between literary characters and visually depicted characters and how it can affect the degree of protection allowed. Part II will discuss the history of character copyright, specifically, the different tests adopted by circuit courts and the impact each one has on the protection of characters. Part III will analyze …

The Case For The Ccb: A Defense Of The Constitutionality Of The Copyright Claims Board, Adam Vischio

Kernochan Center for Law, Media, and the Arts

Copyright litigation is expensive. Since copyright is federal law, disputes must be heard in federal court. Federal litigation can be prohibitively costly for creators bringing small claims, essentially leaving them with a right without a remedy against infringement of their work. Congress sought to alleviate this financial burden in 2020 when it passed the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act, thus creating the Copyright Claims Board (“CCB”) to adjudicate small copyright disputes.

Opponents raised constitutional concerns about the CCB throughout the legislative process. The concerns included the fact that the CCB officers would wield unreviewable power and that Congress …

The Last Line Of Defense: Addressing Section 512(G)’S Dwindling Capacity To Protect Educational Fair Users On The Internet, Gersham Johnson

Kernochan Center for Law, Media, and the Arts

The COVID-19 pandemic has rapidly transformed education from one of the least digitized sectors in the U.S. economy to a largely online phenomenon, with up to 93% of households with school-age children relying on distance learning. The value of online educational opportunities has extended beyond traditional purveyors of education as well, with online service providers (OSPs) like YouTube reporting an increase in average daily views for educational videos produced by subscribers (“users”).

The rise of user-generated content in online education (“educational content”) is merely part of a larger sea change as more content is uploaded to OSPs than ever before. …

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 …

Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg

Faculty Scholarship

Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …

Synchronizing Copyright And Technology: A New Paradigm For Sync Rights, Michael Goodyear

Articles & Chapters

Embedded in a copyright owner’s musical work or sound recording is the synchronization, or sync right. One of the least discussed aspects of music copyright, considerations about sync have come to the fore as the world has increasingly moved from the real world to the virtual. The COVID-19 pandemic has spurred thousands of activities and events to go online. With many of these involving music, the shift to the virtual world has raised new questions about the extent of sync rights.

Traditionally, sync rights were meant to require licenses for the use of music in timed-relation to a film or …

Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

PD7 is often confusing, largely as a result of failure to provide important explanations or definitions, or to tell the reader where that information can be found. Key terms, such as “edicts of law” and “formalities” remain undefined. Formalities are a principal topic of PD7; they deserve a more thorough description than the draft contains, addressing what formalities are, whether every declaratory obligation (or option) is a “formality,” or only those that go to the existence or enforcement of copyright (this is the Berne Convention meaning of “formality”).

Code Ownership : Plagiarism And Use, Alexis Nicole Amore

Theses, Dissertations and Culminating Projects

Technology is moving at unmeasurable rates to that of law. Ownership rights and legality become harder to grasp distant theories. With community code-sharing and limiting language structures, when does code become plagiarized or entity-owned? The disciplines of Cyberlaw and computer science are used to provide a better understanding.

The Cyberlaw discipline explores how jurisdiction views cyberspace, source code, and source code’s placement within legislation. Due to cyberspace’s ever-evolving nature, litigation struggles to encompass the possibilities within it. Computer science delves into theory-based excursions that define the law’s shape in the cyber realm. It bolsters the possibility of implementing progressive legislation …

Pushing Back On Stricter Copyright Isp Liability Rules, Pamela Samuelson

Michigan Technology Law Review

For more than two decades, internet service providers (ISPs) in the United States, the European Union (EU), and many other countries have been shielded from copyright liability under “safe harbor” rules. These rules apply to ISPs who did not know about or participate in user-uploaded infringements and who take infringing content down after receiving notice from rights holders. Major copyright industry groups were never satisfied with these safe harbors, and their dissatisfaction has become more strident over time as online infringements have grown to scale.

Responding to copyright industry complaints, the EU in 2019 adopted its Directive on Copyright and …