Intellectual Property Law Commons^™

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.

The Inherent Monetary Incentive Of Intellectual Property Rights And The Failure Of Intellectual Property Waivers To Recognize This Motive, Ellaheh D. Sims

Barry Law Review

No abstract provided.

Native American Intellectual Property Protection: Altering Federal Ip Law And The Indian Arts And Crafts Act To Aid Tribal Economic Development, Trey V. Perez

American Indian Law Journal

Native Americans tribes remain subject to an epidemic of poverty. Although tribal gaming has provided relief and a method of economic development for some groups, other tribes are unable to employ gaming to bring in revenue and grow out of poverty. One method to assist tribes that cannot use tribal gaming could be amending federal intellectual property law to better suit tribes needs and allowing them to better exploit the billion-dollar Native American arts and crafts industry.

Moreover, tribes are able to determine which artists qualify as “Indian” under the Indian Arts and Crafts Act, which leaves individual artists subject …

Limitations And Exceptions In International Copyright And Related Rights Treaties, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Copyright limitations and exceptions have been an integral part of international copyright and related rights treaties since the original text of the Berne Convention in 1886, which protected the ability to adopt exceptions for uses for “educational” and “scientific” uses. Since that instrument, there has been great -- if uneven -- development of norms on limitations and exceptions. Currently, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights is considering limitations and exceptions in the draft text for a treaty on broadcast organizations as well as a proposal from the African Group for a work programme on …

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

“This Artwork Is Always On Sale”: The Need For A U.S. Resale Royalty Right For Digital Visual Artists In This Technological Age, And Proof Of Concept Through The Blockchain And Nfts Explosion, Janae Camacho

Washington Journal of Law, Technology & Arts

With the explosion of the internet, social media, non-fungible tokens (“NFTs”), and blockchain technology, there has been a shift in how people consume and commercialize art, thus resulting in the increased use of digital visual mediums to create, purchase, and receive payment for visual artwork. This increase has renewed the question of whether the United States should implement a resale royalty right for visual work artists. This question is of concern, especially in this digital age where it has become more difficult for digital visual artists to receive equitable compensation for their work, like that of their musical and written …

Albrecht Durer's Enforcement Actions: A Trademark Origin Story, Peter J. Karol

Law Faculty Scholarship

This article offers a trademark-framed reappraisal of a pair of extraordinary enforcement actions brought by the Northern Renaissance artist Albrecht Durer (1471-1528) against copyists of his work. These cases have long been debated by art, cultural, and copyright historians insofar as they appear to reject Durer's demand for protocopyright protection. Commentators have also contested the historicity of one of the two narratives. But surprisingly little attention has been paid by trademark scholars to the companion holdings-in the same texts-that affirm Durer's right to prevent the use of his monogram on unauthorized reproductions. This article seeks to fill that gap by …

The Free Exercise Of Copyright Behind Bars, Viva R. Moffat

Sturm College of Law: Faculty Scholarship

Incarcerated people produce vast amounts of creative and expressive work – from paintings and sculptures to essays, novels, music, and NFTs – but they are rarely described as artists and their work is often not described as 'art'. Incarcerated people also do not regularly take advantage of copyright law, the primary form of protection for creative works, but they should. Copyright provides a strong set of rights that combines strains of free expression values with property rights elements. Copyright confers dignitary and expressive benefits, and for some creators, financial rewards. As such, copyright can be a tool to help incarcerated …

Ftas' Contribution Towards A More Flexible Copyright Space: Possibilities And Limits, Maria Vasquez Callo-Muller

American University International Law Review

Free Trade Agreements (FTAs) have often been considered instruments for heightened intellectual property rights protection, thereby in detriment of a more flexible copyright space. However, since the adoption of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, some FTAs have been incorporating a clause on the “Balance in Copyright and Related Rights Systems.” Among these, the Regional Comprehensive Economic Partnership Agreement and, more recently, the 2021 Australia-U.K. FTA contain such a clause. In addition, more discrete FTAs, such as the AustraliaPeru FTA, also incorporate similar provisions. This article considers what incorporating such clauses in FTAs means for the interpretation of …

Lost In Transit: How Enforcement Of Foreign Copyright Judgements Undermines The Right To Research, Naama Daniel

American University International Law Review

The ease of travel in the globalized, modern world is a doubleedged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed …

Ransomware Groups On Notice: U.S. Cyber Operation Against Revil Is Permissible Under International Law, Justin Singh

American University International Law Review

The continued increase in the use of ransomware by cyber criminals has had a costly impact on businesses and organizations around the world. Ransomware groups continue to initiate attacks on businesses and organizations, and states have become increasingly concerned over the potential impact it may have on their critical infrastructure and economies. The United States’ recent acknowledgement of cyber operations against ransomware groups highlights the seriousness of the issue and exposes areas of international law that are complicated when applied to cyber operations against these groups. This Comment explores the relevant international law as it applies to the United States …

One Small Step On Tiktok, One (Possibly) Giant Leap For The Dance Community: How Tiktok Spearheaded A Change In The Seemingly Stagnant Field Of Copyright Law, Sydney L. Solferino

Catholic University Journal of Law and Technology

No abstract provided.

Keeping It Real: Property Analogies For Graffiti Infringement, Shelby Pickar-Dennis

University of Colorado Law Review

No abstract provided.

Trademark's Grip Over Sustainability, Daniel R. Cahoy

University of Colorado Law Review

Entrepreneurs and larger firms are waking up to the fact that there is a viable market for recycled, repaired, and even upcycled goods. There is also an increasing desire on the consumer end for more sustainable products as well as measures to reduce landfill and other product disposal harms to the environment. Although some legal barriers to this new market are being actively debated, other barriers have taken a back seat and seem primed to surge only when increased business activity exposes the liability. This is the case with trademark law, which has the potential to substantially deter the small-firm …

Intellectual Property, Antitrust, And Access To Essential Technologies, Joy Y. Xiang

Lewis & Clark Law Review

This Article explores whether and how we may leverage antitrust law to calibrate the exploitation of intellectual property (“IP”) rights—e.g., IP licensing—to facilitate needed access to essential technologies. The Article’s motivation is to help developing countries find an effective way to address their complaints that owners of IP-protected technologies refuse to license needed technologies or charge unfairly high prices. The Article concludes that leveraging antitrust law unilaterally to address these typical challenges developing countries experience in accessing essential technologies may be more effective and efficient than attempting to change the IP regime. The IP regime is governed by negotiated and …

Renewing Faith In Antitrust: Unveiling The Hidden Network Behind Pharmaceutical Product Hopping, Victoria Field

Fordham Journal of Corporate & Financial Law

Patents grant time-limited market exclusivity to drug manufacturers, meaning that other companies are prohibited from copying and selling the patented pharmaceutical. This allows manufacturers to lawfully charge monopoly prices. Generic competition starts at the expiration of the patent. To maintain coveted monopoly power, manufacturers often release an alternative formulation of the drug with a fresh patent that enjoys continued market exclusivity. Manufacturers who can convert their consumer base to the new formulation can continue charging peak prices. This process, called “product hopping,” has been the target of significant antitrust inquiry, with mixed results.

A product hop may be the result …

Selling Aloha: The Fight For Legal Protections Over Native Hawaiian Culture, Angela Louise R. Tiangco

William & Mary Journal of Race, Gender, and Social Justice

In 2018, a Chicago-based restaurant attempted to enforce a registered trademark of “Aloha Poke” by sending cease-and-desist letters to small businesses with names containing some variation of the phrase. Most of those businesses were owned by Native Hawaiians, causing an uproar due to the terms “aloha” and “poke” having strong ties to traditional Hawaiian culture. Known as the Aloha Poke case, it brought attention to the fact that the United States currently has no definite legal framework to protect the cultural heritage of Native Hawaiians, much less their intangible cultural heritage.

This Note addresses the lack of federal recognition granted …

New Frontiers In Technology: Can Traditional Intellectual Property Rights Laws Be Adapted And Applied To Nfts?, Mariyah S. Wakhariya

Catholic University Journal of Law and Technology

A decade ago, ‘NFTs’ were rarely heard of or known to anyone, unless they worked in or kept up with the tech world. However, they are not new - they have been around for almost two decades. Their popularity has grown over the past few years. ‘NFT’ stands for ‘non-fungible token’. An NFT is a digital file with a unique identity that is verified on a blockchain and is therefore not interchangeable - i.e., a kind of crypto asset, like an authentication certificate for digital artifacts. In theory, NFTs can represent almost any real or intangible property. These days, it …

Smart Patents, Stephanie Plamondon

Faculty Scholarship

Intellectual property (IP) rights differ from traditional property rights in a crucial respect: the ascertainability of their boundaries. While it is usually a simple task to figure out where a traditional property right (e.g., an ownership right in a piece of land) begins and ends, delineating the metes and bounds of an IP right (e.g., a right to exclude others from practicing an invention as described in a patent claim) can be much more difficult to do.

The indeterminate scope of patent rights in particular leads to many layers of inefficiency. Downstream inventors may find it necessary to engage in …

Artificial Intelligence Owning Patents: A Worldwide Court Debate, Maria A. Penkwitz

Marquette Intellectual Property & Innovation Law Review

In the article "Artificial Intelligence Owning Patents: A Worldwide Court Debate," Maria A. Penkwitz explores the legal conflict over whether AI can be a patent inventor. The central case involved DABUS, an AI system that independently created new inventions. Penkwitz's research highlights a significant global divide in legal perspectives.

While courts in the United States, United Kingdom, and Australia have rejected patents for AI-generated inventions, citing existing laws that require a human inventor, other nations are more progressive. Germany, for example, permits a human to be credited alongside the AI, and South Africa made a landmark ruling by granting a …

Intellectual Property And Accessibility For Individuals With Disabilities, Eman A. Daas

Marquette Intellectual Property & Innovation Law Review

None.

Amend The Lanham Act: Trademark Infringement Needs A Statute Of Limitations, Aaron E. Schindler

Marquette Intellectual Property & Innovation Law Review

None.

Securing Patent Law, Charles Duan

Scholarly Articles in Law Reviews & Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

Trademarks In An Algorithmic World, Christine Farley

Scholarly Articles in Law Reviews & Journals

According to the sole normative foundation for trademark protection—“search costs” theory—trademarks transmit useful information to consumers, enabling an efficient marketplace. The marketplace, however, is in the midst of a fundamental change. Increasingly, retail is virtual, marketing is data-driven, and purchasing decisions are automated by AI. Predictive analytics are changing how consumers shop. Search costs theory no longer accurately describes the function of trademarks in this marketplace. Consumers now have numerous digital alternatives to trademarks that more efficiently provide them with increasingly accurate product information. Just as store shelves are disappearing from consumers’ retail experience, so are trademarks disappearing from their …

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

Tokenized: The Law Of Non-Fungible Tokens And Unique Digital Property, Joshua A.T. Fairfield

Indiana Law Journal

Markets for unique digital property—digital equivalents of rare artworks, collectible trading cards, and other assets that gain value from scarcity—have exploded in the past few years. At root is the next iteration of blockchain technology, unique digital assets called non-fungible tokens. Unlike bitcoin, where one coin is the same as another, NFTs are unique, each with different attributes. An NFT that represented ownership of Boardwalk would be quite different from one that represented Baltic Avenue.

NFTs have grown from a few early breakout successes to a rapidly developing market for unique digital treasures. The attraction to buyers is that, unlike …

Progress As Impact: A Contemporary View Of Copyright And Patent Clause, Alina Ng

Journal Articles

This paper argues that the incentive-welfare functions of patents and copyrights would be enhanced by embracing a more purpose-driven view of inventions and creative expressions. This paper is divided into three parts to show how conceptualizing “progress” as the betterment of society through the use of impactful intellectual property will ultimately benefit both the creator and recipient of the work so that the incentive welfare function of the law is maximized. Part I of the paper explores the concept of progress as a goal undergirding the patent and copyright systems and shows how the conventional understanding of progress as “creation” …

Patents And The Pandemic: Intellectual Property, Social Contracts, And Access To Vaccines, Peter Lee

Washington Journal of Law, Technology & Arts

Through enormous public support and private initiative, biopharmaceutical firms developed safe and effective COVID-19 vaccines in record time. These remarkable vaccines represent humanity’s best chance to end the devastating pandemic. However, difficult questions about ownership and access have arisen alongside the development and deployment of these vaccines. Biopharmaceutical companies have patented many of the technologies underlying these vaccines, thus seeming to pit intellectual property rights against the objective of wide and rapid dissemination of these critical resources. While prevailing debates have been framed in the language of intellectual property, this Article suggests that contract principles can help break the impasse …

Personal Foul: The Exploitation Of Ncaa Student-Athletes’ Publicity Rights, Jordan Pamlanye

St. John's Law Review

(Excerpt)

In 2017, Donald De La Haye, a Division I football player for the University of Central Florida of the National Collegiate Athletic Association (“NCAA”), was deemed ineligible for NCAA participation due to his successful YouTube channel, “Deestroying.” De La Haye was a kicker for the University of Central Florida’s (“UCF”) football team. At the time, his YouTube channel had over 90,000 subscribers and almost 5,000,000 views. The NCAA found De La Haye ineligible because he was compensated for videos that included aspects of his life as an NCAA athlete—a violation of the NCAA bylaws.

The consequences of this decision …

International Rights Affecting The Covid–19 Vaccine Race, Samantha Johnson

University of Miami Inter-American Law Review

The impact of the COVID–19 pandemic has been felt world-wide, and despite having several vaccines in the market at this point, there are still issues of accessibility for certain countries. International intellectual property law has been a breeding ground for the exploration of intellectual curiosity and creation as it provides strong protections to creators. These strong protections have allowed for the monopolization of certain goods, such as vaccines, under the concept of patents. While patents are important to incentivize pharmaceutical companies to create life–saving medicines, these protections have also become a barrier for access to medicines, especially in less–developed countries. …