Intellectual Property Law Commons^™

Eighth Circuit Trademark Opinions, Kenneth L. Port

Faculty Scholarship

The Eighth Circuit Court of Appeals’ trademark jurisprudence has been truly fair and balanced since the 1946 passage of the Lanham Act. The court has created this fair and balanced jurisprudence by creating firm standards and sticking to them. Although not the most popular circuit in which to find a trademark case, the Eighth Circuit has kept a constant vigil to assure that trademark plaintiffs do not dominate over trademark defendants. This balanced approach to trademark law is consistent with the Minnesota Supreme Court, which recently held that “advertising injury” included trademark infringement, and therefore the defendant’s insurance carrier had …

Technology And Judicial Reason: Digital Copyright, Secondary Liability, And The Problem Of Perspective, Jonathon Penney

Articles, Book Chapters, & Popular Press

Theories abound about how to understand and explain the development copyright law. Few, however, have focused specifically on the development of secondary liability in digital copyright law. Fewer still have analyzed or theorized the factors that may have driven or influenced that development, particularly judicial reasoning, beyond the obvious point that technology or the Internet has played a role. This essay aims to help fill this gap by investigating the nature of judicial reasoning about technology in secondary liability and digital copyright cases. I will argue that two underlying and competing approaches to technology have deeply influenced judicial reasoning and …

Determining Uniformity Within The Federal Circuit By Measuring Dissent And En Banc Review, Christopher A. Cotropia

Law Faculty Publications

This Article adds to the empirical literature examining how the Federal Circuit treats patent-law issues internally by comparing the decision making of the Federal Circuit with that of other courts of appeals. It does so by measuring two statistics from overall written opinions: the percentage of dissents and the percentage of en bane reviews. The data is taken from the Third, Fifth, Ninth, Tenth, District of Columbia, and Federal Circuits between 1998 and 2009. The data in the study show that the Federal Circuit has the second-highest percentage of dissents among the circuits studied (behind only the Ninth Circuit) and …

Rca V. Whiteman: Contested Authorship, Copyright, And The Racial Politics Of The Fight For Property Rights In Musical Recordings In The 1930s, Kurt Newman

Studio for Law and Culture

Between the Progressive Era and World War II, African American jazz music became the source of big profits for some white entrepreneurs in the United States. The encounter between whites and jazz was both a propertization and a privatization of African American group resources. While new technologies of recording and radio broadcasting were critical factors facilitating these cultural enclosures, the sine qua non was the embeddedness of American intellectual property law in the logic of white supremacy. In this paper, I focus on the popular jazz bandleader Paul Whiteman, best known to most contemporary legal scholars as the defendant in …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay Erstling

Faculty Scholarship

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of Korean Intellectual Property Office (KIPO). Part II will take a brief look at the rationale underpinning Korea's confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. In order to provide a basis of comparison, reference will be made wherever …

Sticky Copyrights: Discriminatory Tax Restraints On The Transfer Of Intellectual Property, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This Article focuses on the federal estate and gift tax treatment of copyright termination rights. The ability of a creative individual to terminate prior copyright transfers serves to protect against economic exploitation. Once a copyright's value has been established in the marketplace, the author (or the author's heirs) enjoys a "second look" at the gift, sale, license or other transfer of a copyright. But copyright termination rights--intended to enhance the economic well-being of authors and artists--undermine estate planning strategies available to owners of other types of property. There is no policy justification for such discrimination, and so this Article proposes …

Is Fashion An Art Form That Should Be Protected Or Merely A Constantly Changing Media Encouraging Replication Of Popular Trends, Alissandra Burack

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

A Patent Panacea?: The Promise Of Corbinized Claim Construction, Jonathan L. Moore

Law Student Publications

A patent's claims define the scope of a patent-holder's right to exclude others. Because patent infringement actions often hinge on how a court construes claim terms, the interpretative approach that a court uses has a significant effect on the scope ofpatent rights. This article examines claim construction through the lens of contract law. In theory, the Federal Circuit has explicitly rejected the application of contract interpretation principles to claim construction, despite historical acceptance of the patent-contract analogy. In practice, however, the Federal Circuit applies the theory of contract interpretation espoused by Samuel Williston, a theory that focuses on the text …

The Nfl, Intellectual Property, And The Conquest Of Sports Media, Eric E. Johnson

Faculty Articles

This article explores how the National Football League (NFL) has used assertions of intellectual property to control media coverage of its activities and events. Some history is uncovered, including the NFL’s project of wresting copyright ownership to televised game coverage away from the broadcast television networks. Also reviewed is the NFL’s spurious claims of copyright ownership over footage shot by third persons. The article further explains how the NFL has, in recent years, begun to use press accreditation as a way to gain copyright ownership over news-media footage and to eliminate competition with the NFL’s own web and television media …

Clarifying Cultural Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Publications

Author Stephenie Meyer forever altered the cultural existence of Quileute Indians when she wrote them into her Twilight novels. Now a veritable global phenomenon complete with books, movies, and affiliated merchandise, the Twilight series depicts young, male members of the tribe as vampire-fighting werewolves who ferociously defend a peace and territorial treaty made with local bloodsuckers. In reality, the Quileute Tribe consists of approximately 700 Indians, many of whom live on a remote reservation in the Pacific Northwest, a tiny parcel of the once vast Quileute territory. Since Twilight's unprecedented international success, the Quileute have been overwhelmed with fans …

Intellectual Property's Need For A Disability Perspective, Eric E. Johnson

Faculty Articles

This Article approaches intellectual property law from a critical-disability theory perspective. It argues that, in specific instances, courts have gotten the law wrong because of a failure to take into account the perspective of persons with disabilities. In the context of law, and intellectual property law in particular, confronting those differences means taking into account a disability perspective even where all the parties in a given case are not disabled and where the dispute does not directly implicate issues of disability. This sua sponte accounting is necessary because intellectual property cases have the effect of defining rights that extend far …

Using Competition Law To Promote Access To Knowledge, Sean Flynn

Contributions to Books

One of the points of convergence among the many strands of the A2K movement is resistance to the one-size-fits-all ratcheting up of intellectual property provisions around the world. The resistance is grounded in analysis showing that intellectual property rules often create social costs that far outweigh their intended benefits. Much of the A2K movement’s advocacy for limitations of intellectual property rights is located within the field of intellectual property law – promoting the inclusion and use of balancing mechanisms within the laws granting intellectual property rights. But intellectual property rights are also shaped and limited by their interaction with other …

Privilege And Property: Essays On The History Of Copyright, Ronan Deazley, Martin Kretschmer, Lionel Bently

Copyright, Fair Use, Scholarly Communication, etc.

Includes sixteen essays on the origins of copyright.

First paragraph:

What is Copyright History?

History has normative force. There was no history of colonialism, gender, fashion or crime until there were contemporary demands to explain and justify certain values. During much of the twentieth century, ‘copyright’ history (the history of legal, particularly proprietary, mechanisms for the regulation of the reproduction and distribution of cultural products – as opposed to the history of art, literature, music, or the history of publishers and art-sellers) was not thought of as a coherent, or even necessary field of inquiry. It was a pursuit of …

Current Patent Laws Cannot Claim The Backing Of Human Rights, Wendy J. Gordon

Faculty Scholarship

In the dispute over the enforcement of pharmaceutical patents, the International Covenant on Economic, Social and Cultural Rights is sometimes cited as giving patent protection the status of a 'human right'. It is true that the ICESCR provides for ‘the right of everyone’ ‘[t]o benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. But that does not mean that patent protection is a human right. Patent fails as a human right for many reasons, one of which is the lack of fit between current patent …

A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials And Bad Taste In Copyright, David E. Shipley

Scholarly Works

Some of the most important statements in our nation’s rich copyright jurisprudence were written by Justice Holmes over a century ago in Bleistein v. Donaldson Lithographing Co.,a case holding that circus posters were entitled to copyright protection.

In Bleistein, Justice Holmes stated that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [writings, illustrations, music and other forms of expression] outside of the narrowest and most obvious limits.” This announced what has been called the principle of “aesthetic non-discrimination.

“Pull My Finger Fred,” and many other …

O2 Micro Int'l Ltd. V. Beyond Innovation Tech. Co.: Confirmation That Claim Construction Is The Duty Of The Court, Jessica L.A. Marks

Journal of Business & Technology Law

No abstract provided.

The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig

Canadian Journal of Law and Technology

In this article, I explore the important body of scholarship that has emerged over this time on the substance, nature, and role of the public domain. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a fairly comprehensive, but concise, review of this academic movement that has been directed towards substantiating and politicizing the concept of the public domain; and second, I hope to re-situate …

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

This article examines the federal income tax regime governing intellectual property using normative criteria in evaluating taxes: equity and efficiency. The article first evaluates the current intellectual property tax scheme in terms of horizontal equity, identifying differences in tax treatment of what appear to be similar intellectual property activities. It argues that disparate tax treatments between seemingly similar intellectual property owners signal that flaws may exist in the tax system. The article then assesses the efficiency of the intellectual property tax system, examining numerous tax subsidies for intellectual property and their effectiveness in promoting economic growth. It argues that many …

Panel I: The Patent Landscape With Bilski On The Map, Jeanne C. Fromer, James W. Dabney, Clarisa Long, Brian P. Murphy

Faculty Scholarship

Welcome to the 2009 Fordham Intellectual Property, Media and Entertainment Law Journal’s Symposium titled, “Functionality: At the Crossroads of IP.” My name is Regina Schaffer-Goldman, and I am the Editor-in- Chief of the 20th Volume of the Journal, which is more affectionately known as the IPLJ.

We are so pleased to see the culmination of many months of preparation today. It is the IPLJ’s 20th Anniversary Edition, and we wanted to commemorate this occasion with a fantastic Symposium. As you will see, we have assembled a truly all-star group of legal scholars and practitioners today.

Recut, Reframe, Recycle: The Shaping Of Fair Use Best Practices For Online Video, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

This article discusses the intertwining of creative and copyright practices, as demonstrated by the emergence and evolution of standards to assess fair use in online video from 2007-2009. The development of such standards demonstrates the effectiveness of community-based standards to expand the utility of fair use and the importance of practice in affecting the interpretation of law. This process demonstrates the relationship between copyright practice and creative practice.

A Training Ground For Contemporary Art: Massachusetts Museum Of Contemporary Art V. Biichel's Overly Broad Exclusion Of Artistic Collaborations, Sarah Louise Rector

University of Colorado Law Review

In 2007, the Massachusetts Museum of Contemporary Art sought a declaratory judgment permitting it to display an unfinished installation artwork by artist Christoph Buchel without Buchel's permission. Bchel attempted to stop the display by arguing that it violated his moral rights under the Visual Artists Rights Act ("VARA'). The United States District Court for the District of Massachusetts ruled in favor of the museum, holding in part that the "collaborative" nature of the installation's construction precluded VARA protection. The court analogized the artwork to a motion picture, which the Act's legislative history characterized as the type of collaborative effort VARA …

The Statute Of Anne: Today And Tomorrow, Peter Jaszi, Craig Joyce, Marshall A. Leaffer, Tyler Trent Ochoa

Scholarly Articles in Law Reviews & Journals

This essay provides the epilogue to the University of Houston’s Institute for Intellectual Property & Information Law’s 2010 National Conference, “The ©©© Conference: Celebrating Copyright’s tri-Centennial,” in Santa Fe, New Mexico. The conference focused on the Statute of Anne, the first copyright statute ever, anywhere, enacted by the British Parliament in 1710.

Copyright law in the United States, the lineal descendant of the Statute of Anne, has managed to negotiate a course between over-protecting and under-protecting copyrighted matter, and to strike at least a rough balance between the social interest in securing capital investment, on the one hand, and encouraging …

The Evolution Of Copyright Law In The Arts, Kevin Liftig

Honors Scholar Theses

As digital storage of intellectual goods such as literature and music has become widespread, the duplication and unlicensed distribution of these goods has become a frequent source of legal contention. When technology for production and replication of intellectual goods advanced, there were disputes concerning the rights to produce and duplicate these works. As new technologies have made copies of intellectual goods more accessible, legal institutions have largely moved to protect the rights of ownership of ideas through copyright laws. This paper will examine key changes in the technology that affect intellectual property, and the responses that legal institutions have made …

Success, Dominance, And Interoperability, Alan Devlin, Michael Jacobs, Bruno Peixoto

Indiana Law Journal

In September 2007, the European Court of First Instance (CFI) ruled that Microsoft violated the European Union's competition law by failing to provide certain of its rivals with proprietary computer protocols that would have enabled them to make their products fully "interoperable" with Microsoft's dominant operating system. In the process, the court suggested that an owner of certain kinds of dominant intellectual property is obliged to share its property with rivals to the extent necessary to allow those rivals to compete "viably" with the dominant firm. Thus, in theory, should protocol sharing fail to achieve the requisite degree of "viability, …

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

Copyright Or Trademark? Can One Boy Wizard Prevent Film Title Duplication?, Anna Phillips

San Diego International Law Journal

This Comment will examine the various approaches that India, the United Kingdom, and the United States take in dealing with film title disputes. Second, this Comment will discuss a case brought by Warner Brothers regrding a Harry Potter film title dispute in India and how the outcome of the case affects title infringement issues... Finally, this Comment will discuss a possible loophole in current trademark regulations regarding film titles that will support the argument that countries should use both copyright and trademark law to minimize the release of film titles that are similar or identical to those already on the …

The End Of The (Virtual) World, Joshua A.T. Fairfield

West Virginia Law Review

No abstract provided.

Trademarks And Human Rights: Oil And Water? Or Chocolate And Peanut Butter?, Megan M. Carpenter

Law Faculty Scholarship

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights, including whether or not individual intellectual property rights are, or can be, human rights. In 2007, this debate began to focus on the area of trademarks. That year, the European Court of Human Rights determined that it had jurisdiction over a trademark dispute, by virtue of the property rights provision found in Article 1 of Protocol 1 to the European Convention on Human Rights. This paper seeks to explore the connection between trademarks and human rights. The first part of the article …

Memorial To Barbara Ringer, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

The story goes that in 439 BC the retired consul Cincinnatus was summoned from the plow by the Senate and people of Rome. One more time, he saw the Republic through a time of particular peril, resigning office immediately afterwards to return to his rural retirement - to be transmuted into a timeless emblem of selfless probity. Episodes of this kind are even rarer in the annals of the U.S. civil service than in the Roman history. But I had the good fortune to be a witness to one such - Barbara Ringer's return to the Library of Congress in …