Intellectual Property Law Commons^™

Unauthorized Televised Debate Footage In Political Campaign Advertising: Fair Use And The Dmca, Susan Park

Management Faculty Publications and Presentations

No abstract provided.

Fair Use And Education: The Way Forward, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

The ability to make reasonable fair use of copyrighted material is both economically and culturally important to the enterprise of education. No other feature of copyright laws offers educators access of the same potential scope. In asserting fair use, teachers, librarians, and others cannot rely on a claim of "economic exceptionalism, "for which there is no clear basis in U.S. copyright law. Nor can they expect to arrive at satisfactory shared understandings with copyright owners. Instead, they should seek to take advantage of current trends in copyright case law, including the marked trend toward preferring uses that are "transformative," where …

Rohauer Revisited: "Rear Window," Copyright Reversions, Renewals, Terminations, Derivative Works And Fair Use , Richard Colby

Pepperdine Law Review

No abstract provided.

Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie And Exceptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Barbie represents an aspiration to an ideal and also a never-ending mutability. Barbie is the perfect woman, and she is also grotesque, plasticized hyperreality, presenting a femininity exaggerated to the point of caricature. Barbie’s marketplace success, combined with (and likely related to) her overlapping and contradictory meanings, also allow her to embody some key exceptions to copyright and trademark law. Though Mattel’s lawsuits were not responsible for the initial recognition of those exceptions, they illuminate key principles and contrasts in American law. Mattel attempted to use both copyright and trademark to control the meaning of Barbie, reflecting a trend towards …

You Can’T Go Home Again: The Righthaven Cases And Copyright Trolling On The Internet, Ian Polonsky

Kernochan Center for Law, Media, and the Arts

In the Norwegian folktale Three Billy Goats Gruff, three goats seeking to get fat on the greener pastures of a distant hillside were stopped at the foot of a bridge by a “great ugly troll, with eyes as big as saucers, and a nose as long as a poker.” The troll allowed the first two goats to pass when they assured him of a larger goat to come. Unfortunately, the troll bit off more than he could chew: the third goat was larger than the troll and not the least bit intimidated. The goat launched himself at the troll …

Judges As Bad Reviewers: Fair Use And Epistemological Humility, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Faculty Scholarship

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Google Books: Game, Set, But Not Match, James Gibson

Law Faculty Publications

It’s back: Google Books, our favorite topic in this Intellectual Property Viewpoints series. Google Books is the project through which Google has brought its search capability to the text of more than 20 millions books (with the number still growing). To do so, Google must scan the book and convert the scan to readable text. And there’s the problem: Scanning is copying, and copying raises the question of whether the massive project is a massive violation of the copyrights in all those books. Thus the Authors Guild v. Google class action brought by authors and publishers against Google in a …

Fixing Copyright In Three Impossible Steps: Review Of How To Fix Copyright By William Patry, Mark P. Mckenna

Journal Articles

This review of William Patry’s How to Fix Copyright highlights three of Patry's themes. First is Patry’s insistence that copyright policy be based on real-world evidence, a suggestion that should be uncontroversial but instead runs headlong into the near-religious commitments of copyright stakeholders. Second is Patry’s emphasis on the difference between the interests of creators, on the one hand, and owners of copyright interests, on the other. Third, and finally, is Patry’s focus on the copyright system’s strong tendency to entrench business models and resist change, particularly in the face of new technology.

The Concept Of "Harm" In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

Harry Potter, Scientology, And The Mysterious Realm Of Copyright Infringement: Analyzing When Close Is Too Close And When The Use Is Fair, Rosalinde Casalini

Touro Law Review

After going to a theatre and watching a new movie, would it be possible to go home and write a book about it? What about after reading a novel? Would a reader be free to write a new book using the same characters? Would a teacher be able to write her own training manual using the exact techniques she had just learned in another author's book? Is there any recourse for authors facing these types of situations? This Comment explores how two lower courts have recently addressed these questions. The first decision, Warner Bros.Entertainment Inc. v. RDR Books,determined whether …

Do Students Turn Over Their Rights When They Turn In Their Papers? A Case Study Of Turnitin.Com, Stephen Sharon

Touro Law Review

Turnitin is a rapidly growing online anti-plagiarism service subscribed to by thousands of schools in the United States. Though the pursuit of honesty and integrity are at the heart of our academic institutions and the Turnitin anti-plagiarism service, there is a fatal flaw in its execution. This comment examines the copyright and fair use arguments presented by four Virginia students asserting that Turnitin violated their intellectual property rights. This comment goes beyond the facts of the four Virginia students to explore the root issues of a service that collects and distributes the copyrighted works submitted to it by hundreds of …

As Unoriginal As They Wanna Be: Upholding Musical Parody In Campell V. Acuff-Rose Music, Inc., Gregory D. Deutsch

Pepperdine Law Review

No abstract provided.

Copyright In The Classroom: Why Comprensive Copyright Education Is Necessary In United States K-12 Education Curriculum, Eric Perrott

Intellectual Property Brief

No abstract provided.

Reverse Engineering: Exploitation For Benefit Of All, Daniel Lee

Intellectual Property Brief

No abstract provided.

Tweet Me Fairly: Finding Attribution Rights Through Fair Use In The Twittersphere, Adam S. Nelson

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Reclaiming Copyright From The Outside In: What The Downfall Hitler Meme Means For Transformative Works, Fair Use, And Parody, Aaron Schwabach

Buffalo Intellectual Property Law Journal

Continuing advances in consumer information technology have made video editing, once difficult, into a relatively simple matter. The average consumer can easily create and edit videos, and post them online. Inevitably many of these posted videos incorporate existing copyrighted content, raising questions of infringement, derivative versus transformative use, fair use, and parody.

This article looks at several such works, with its main focus on one category of examples: the Downfall Hitler meme. Downfall Hitler videos take as their starting point a particular sequence - Hitler's breakdown rant - from the 2004 German film Der Untergang [Downfall in the US]. The …

Appendix: What Is Transformative? An Explanatory Synthesis Of The Convergence Of Transformation And Predominant Purpose In Copyright Fair Use Law, Michael D. Murray

Chicago-Kent Journal of Intellectual Property

The transformative test has risen to the top of the agenda of the copyright academic community with no less than two major studies of copyright fair use and the impact of the transformative test released in 2011 by Professors Matthew Sag and Neil Netanel that follow up on three recent comprehensive studies of copyright fair use published since 2008. The lessons learned from these two 2011 statistical studies are significant, in that both studies confirm the importance of the transformative test in terms of its application by the courts as the dominant test of fair use and in the observation …

What Is Transformative? An Explanatory Synthesis Of The Convergence Of Transformation And Predominant Purpose In Copyright Fair Use Law, Michael D. Murray

Chicago-Kent Journal of Intellectual Property

Two recent statistical studies confirm that a court finding of “transformation” in a copyright fair use claim virtually assures a finding that the use is fair. This Article analyzes the entire body of United States Supreme Court and United States Courts of Appeals case law applying the transformative test in copyright fair use cases to present two points: first, that the transformative test modifies the first sentence of 17 U.S.C. § 107 — in particular, the terms, “the fair use of a copyrighted work” — rather than simply factor one of the four-factor test; second, in implementing the transformative test, …

Fair Use And The Quotation Of Song Lyrics In Fiction, Stephen B. Harrison

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Proposal To Expand The Religious Services Exemption Under The Copyright Act, Kevin M. Lemley

University of Arkansas at Little Rock Law Review

This article focuses on the religious services exemption to the Copyright Act. The religious services exemption is one of many exemptions that permit certain types of use without first obtaining permission from the copyright owner, or proving fair use. This article argues that the religious services exemption should be expanded to cover any work used in the course of services as well as the recording, broadcast, and transmission of the services.

The first part of this article analyzes the existing religious services exemption under the Copyright Act to define the bounds that uses fall under the exemption. The article then …

Building Universal Digital Libraries: An Agenda For Copyright Reform, Hannibal Travis

Pepperdine Law Review

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative …

Copyright And The Vagueness Doctrine, Bradley E. Abruzzi

University of Michigan Journal of Law Reform

The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by …

And Justice For . . . : An Analysis Of Digital Music, Fair Use And Audience Rights, Christopher Cunico

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Museum Policies And Art Images: Conflicting Objectives And Copyright Overreaching, Kenneth D. Crews

Fordham Intellectual Property, Media and Entertainment Law Journal

Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article …

Google Books: Finally, An Actual Fair Use Ruling!, James Gibson

Law Faculty Publications

One of our favorite topics in this Intellectual Property Issues series – perhaps the favorite – is Google Books, the massive project through which Google hopes to bring its search capability to the text of all books in the English language. To make a book’s text searchable, however, Google must scan the book. And scanning is copying. And copying usually means copyright infringement. Certainly the many authors and publishers who have sued Google take this view.

There are two ways to avoid infringement when copying a copyrighted book: get a license or prove that the copying constitutes fair use. Many …

A State Law Approach To Preserving Fair Use In Academic Libraries, David R. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

Every year academic libraries spend millions of dollars to provide their users access to copyrighted works. Much of that money goes not toward purchasing physical copies of books or journals, but toward licensing electronic content from publishers. In those electronic license agreements, the default rules for how users interact with copyrighted content is often altered, and academic library users are deprived of basic rights — especially rights such as fair use — which are granted under federal copyright law. The literature is flush with discussion of the misuse of private contracts to alter the rights granted by Congress in copyright’s …

Fair Use Markets: On Weighing Potential License Fees, Wendy J. Gordon

Faculty Scholarship

Justice Breyer began his classic article, The Uneasy Case for Copyright, with a line from Lord Macaulay, that copyright is "'a tax on readers for the purpose of giving a bounty to writers.'" Our society and its law values both writers and readers; the law cannot favor one side too much without losing some of the benefits the other side could have contributed. Make reading expensive and it will decrease, and readers might substitute less socially productive behaviors to take its place.

Copyright In Memoriam, Julie C. Young

Vanderbilt Journal of Entertainment & Technology Law

Can a government infringe upon a work dedicated to the memory of its people? The February 2010 Federal Circuit decision "Gaylord v. United States" addresses that question, but any satisfaction from the decision presupposes that the government should be held liable for such an infringement. Consistent with the 1976 Copyright Act, the Gaylord decision preserves the author's rights, paying no regard to the identity of the audience or the infringer. From a policy perspective, however, the result is dubious. Arguably, if a work is a public memorial, and paid for with public funds, it should immediately enter the public domain. …

The Forgotten Right Of Fair Use, Ned Snow

Faculty Publications

Free speech was once an integral part of copyright law; today it is all but forgotten. At common law, principles of free speech protected those who expressed themselves by using another's expression. Free speech determined whether speakers had infringed a copyright. To prevail on a copyright claim, then, a copyright holder would need to prove that the speaker’s use fell outside the scope of permissible speech - or in other words, that the use was not fair. Where uncertainty prevented that proof, fair use would protect speakers from the suppression of copyright. Today, however, all this has changed. Copyright has …