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Articles 61 - 90 of 1577
Full-Text Articles in Intellectual Property Law
On Snow's Intellectual Property And Immorality, David O. Taylor
On Snow's Intellectual Property And Immorality, David O. Taylor
Faculty Journal Articles and Book Chapters
In this Essay, I consider the “why” and “how” of Professor Snow’s controversial, countercultural, important, and relevant position that immorality may result in the denial of intellectual property protection. First, I highlight how surprising it is that Professor Snow’s argument springs from the theories underlying intellectual property protection, rather than the theories underlying the morality and ethics he believes ought to be considered in determining intellectual property protection. No one (that I know, at least) goes to the Environmental Protection Agency seeking better regulations to protect the environment and uses the labor desert theory of property rights as an argument. …
Preventing Unjust Enrichment And Copyright Opportunism: An Equitable Interpretation Of Section 103(A), Pamela Samuelson, Jessica Silbey
Preventing Unjust Enrichment And Copyright Opportunism: An Equitable Interpretation Of Section 103(A), Pamela Samuelson, Jessica Silbey
Faculty Scholarship
A stealth issue in many close copyright fair use cases is the potential invalidity of second comers’ copyrights under 17 U.S.C. § 103(a) if the secondary use is ultimately held to infringe the derivative work right. Section 103(a) of the Copyright Act says, in effect, that no copyright exists in any part of a derivative work in which the first work’s expression was “used unlawfully.” Courts have largely ignored § 103(a). But recent cases, such as Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (2023), have raised the profile of § 103(a). This Article traces the origins, history, …
How Theories Of Art Can Inform Debates About Ai, Jessica Silbey
How Theories Of Art Can Inform Debates About Ai, Jessica Silbey
Faculty Scholarship
Debates about artificial intelligence (AI) tend to swing between the optimistic and the apocalyptic. I propose a less binary approach that frames conversations about AI from the perspectives of theories of art and creativity. Whether we agree that AI is artificial or intelligent, whether it should be constrained or liberated, we cannot deny its influence on literary, artistic, and innovative production. AI may be described as simply a new tool to produce art and science, like the camera or the microscope, or it may transform art and science, the way the internet transformed global communication. Either way, these debates about …
Copyright Law And Property Law, Keith N. Hylton
Copyright Law And Property Law, Keith N. Hylton
Faculty Scholarship
Property is at the core of state law since it is the exclusive power of the individual state governments to define and protect property rights within their jurisdiction. In this paper I will discuss the general connection between copyright and property generally. I will argue that property law sheds important light on copyright law and can help us cut through modern controversies in copyright law. If I am correct in this view, any judge sufficiently familiar with property law doctrines could do better than the Supreme Court of the United States in resolving a new copyright controversy. Specifically, property law …
Ten Tips For Legal Empiricists, Jordana Goodman, Christa J. Laser, Mark A. Lemley, Lisa Larrimore Ouellette, Melissa F. Wasserman, Saurabh Vishnubhakat, Janet Freilich, Jessica Silbey, David L. Schwartz, Neel U. Sukhatme
Ten Tips For Legal Empiricists, Jordana Goodman, Christa J. Laser, Mark A. Lemley, Lisa Larrimore Ouellette, Melissa F. Wasserman, Saurabh Vishnubhakat, Janet Freilich, Jessica Silbey, David L. Schwartz, Neel U. Sukhatme
Faculty Scholarship
This essay offers practical tips from leading legal empirical researchers to assist new scholars who are entering the field. Topics include developing meaningful research questions, designing robust survey methodologies, balancing qualitative and quantitative approaches, ensuring data transparency, fostering interdisciplinary collaboration, and navigating ethical considerations in empirical work. Drawing from their own unique challenges and successes, scholars Michael D. Frakes, Janet Freilich, Mark A. Lemley, Lisa Larrimore Ouellette, David L. Schwartz, Jessica Silbey, Neel U. Sukhatme, Saurabh Vishnubhakat, Melissa F. Wasserman, Jordana Goodman, and Christa Laser illuminate what they wished they would have known going into empirical research and the pitfalls …
Do Academic Researchers Care About Patent Infringement? A Pcr Case Study, Janet Freilich
Do Academic Researchers Care About Patent Infringement? A Pcr Case Study, Janet Freilich
Faculty Scholarship
Because much cutting-edge academic research involves building on other new technologies, university research often involves making or using a patented invention—an act of patent infringement. The problem of how patents affect academic researchers has attracted considerable attention, but legal scholars are divided on the magnitude of patents’ potential impact. Many scholars fear that patents will entirely hobble academic scientific research, while others find that academic researchers entirely ignore patents and thus that they have little impact. This Article adds a piece of empirical evidence to the debate by studying the example of polymerase chain reaction (PCR) technology. In the early …
Ip, At, And Aaas: What Intellectual Property Can Teach Antitrust About The War On Amazon Basics, Kristen Jakobsen Osenga
Ip, At, And Aaas: What Intellectual Property Can Teach Antitrust About The War On Amazon Basics, Kristen Jakobsen Osenga
Law Faculty Publications
Amazon is magical. Search the online marketplace for pretty much anything you can imagine—not to mention all the things you never imagined; you will likely find what you were searching for and be able to have it delivered in two days or less. The magic is not just in Amazon’s vast array of innovative consumer products but also in its providing access to goods that are unavailable locally. An extreme example of Amazon’s ability to supply goods that were not locally available may be found in the pandemic lockdowns of 2020, when neighborhood stores were out of toilet paper and …
Copyright's Dominion, Shani Shisha
Copyright's Dominion, Shani Shisha
Faculty Journal Articles and Book Chapters
Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the …
Goncharov (1973), Internet Folklore, And Corporate Copyright, Stacey M. Lantagne Professor Of Law
Goncharov (1973), Internet Folklore, And Corporate Copyright, Stacey M. Lantagne Professor Of Law
Vanderbilt Journal of Entertainment & Technology Law
Goncharov (1973) is a meme, which is a term broadly used to refer to a species of viral internet creativity. Memes can be many different things, but Goncharov is an especially rich, complex, collaborative, and mutating one. It revolves around a movie that does not exist. Goncharov is a fictional Martin Scorsese film that the internet collectively pretends was produced in 1973. Over the course of a few feverish weeks in the fall of 2022, social media users, with no coordination and without knowledge of each other or the overall project, created a cast, storyline, soundtrack, reviews, fanfiction, and a …
Ai Artists On The Stand: Bias Against Artificial Intelligence-Generated Works In Copyright Law, W. Michael Schuster, Joseph J. Avery
Ai Artists On The Stand: Bias Against Artificial Intelligence-Generated Works In Copyright Law, W. Michael Schuster, Joseph J. Avery
Scholarly Works
Generative artificial intelligence (AI) is revolutionizing the creation of art, literature, and music, challenging the boundaries of intellectual property law. To date, scholars have primarily focused on AI's authorship/entity status and the regulation of its use, overshadowing a critical issue: how AI's involvement in creative processes influences legal judgments in copyright disputes. Our empirical research reveals systemic bias against AI-generated works in such legal matters. In our studies, participants read about a company that had hired either a human designer (condition one) or a generative AI art system (condition two) to produce works of art, and those works of art …
Values-Ambiguous Clinics, Willow Tracy
Values-Ambiguous Clinics, Willow Tracy
Scholarly Works
As law school clinical programs have grown in recent decades, many of the newer offerings focus on business law, entrepreneurship, intellectualproperty, and technology. It is commonly presumed that social justice values, such as the amelioration ofpoverty or theprotection offundamental rights, are notfoundational goals of these non-traditional clinics. This Article calls these clinics "values-ambiguous" to highlight the frequent uncertainty and skepticism about their relationship to traditional clinical social justice values. Importantly, "values-ambiguous"does not describe a quality of the clinic itself it describes a quality ofperception of the clinic. In other words, "values-ambiguous clinics" are clinics that are typically not perceived as …
Certainly Uncertain: An Analysis Of The Patent Eligibility Restoration Act Of 2023, Charles Duan
Certainly Uncertain: An Analysis Of The Patent Eligibility Restoration Act Of 2023, Charles Duan
American University Business Law Review
Patentable subject matter eligibility has been a topic of major policy debate over many years, culminating in the recent introduction of a bill that would entirely overhaul current law. This article reviews the proposed legislation in view of its historical context, the purported need to reduce uncertainty, and the likely effects of the bill. Based on this analysis, the article concludes that the legislation is unnecessary, ill conceived, and likely to be harmful to scientific research, a variety of industries, and the public good.
Trademark Proprietors' "Moral Right" As An Exception To The Doctrine Of Exhaustion Of Rights In Trademarks, Sahana Simha, Ram Mohan M P
Trademark Proprietors' "Moral Right" As An Exception To The Doctrine Of Exhaustion Of Rights In Trademarks, Sahana Simha, Ram Mohan M P
American University Business Law Review
Trademark law is primarily viewed as a consumer protection law. Proprietary and consumer interests are not always balanced. This is especially the case with the doctrine of exhaustion of rights in trademarks, where the trademark owner loses control over the further distribution of their trademarked product once sold. Existing statutory exceptions to this doctrine allow the proprietor to take action against resellers only when the product has been impaired or changed. The exceptions do not account for harm or damage to the reputation and goodwill associated with a trademark as a ground to override exhaustion. This article analyzes legislative and …
Name Your Price: How The Rise Of Tiktok Influencers Reveals Weaknesses In The Right Of Publicity’S Protection Of The Commercial Value Of Name And Identity, Melody Garzon
FIU Law Review
After TikTok's immediate success within the social media industry, many users have turned to their large followings on the app as a means of capitalizing on their own name, likeness, and identity. These influencers‚ now face various obstacles when attempting to assert their right of publicity. The right of publicity is entirely state-mandated, creating vast discrepancies in protection across state borders. More stringent regulations are needed regarding how one's right of publicity is legally protected against other TikTok users and third-party companies. TikTok's current Intellectual Property Policy does little to deter violations of a user's right of publicity; on the …
Trademark Fair Use Is No Joke, Christine Farley
Trademark Fair Use Is No Joke, Christine Farley
Scholarly Articles in Law Reviews & Journals
This Article examines how the Supreme Court's 2023 decision in Jack Daniel's Properties v. VIP Products reveals the limitations of using parody as a framework for resolving tensions between trademark rights and free speech. While the Court's ruling narrowed trademark protection in certain instances and acknowledged the importance of protecting parodic speech, it ultimately avoided addressing fundamental questions about the relationship between trademark law and the First Amendment. The Article argues that courts' reliance on parody as a paradigmatic case of permissible trademark use has become a distraction that prevents necessary reform of trademark law to better accommodate First Amendment …
Ai-Driven Branding: Trademark Law Implications Of Automated Creativity, David J. Looney
Ai-Driven Branding: Trademark Law Implications Of Automated Creativity, David J. Looney
Touro Law Review
The rapid advancement of Artificial Intelligence (“AI”), particularly generative AI systems like OpenAI’s ChatGPT and DALL-E, has introduced novel challenges to trademark law, which have remained largely unchanged since the Lanham Act of 1946. While trademark law has evolved to address such issues as dilution, international registration, and cybersquatting, the emergence of AI-generated con[1]tent capable of producing words, phrases, logos, and symbols raises significant concerns about infringement and dilution of existing trademarks. This Note examines the intersection of AI and trademark law, exploring the historical and current frameworks of both fields, the legal dilemmas posed by AI’s ability to generate …
Ai Characterisations And Their Legal Implications, Jerrold Tsin Howe Soh
Ai Characterisations And Their Legal Implications, Jerrold Tsin Howe Soh
Research Collection Yong Pung How School Of Law
This chapter examines the difficult legal characterisation problems that artificially intelligent systems raise and explores how different characterisations of artificial intelligence (AI) shape practical legal outcomes. Three reasons are offered for the legal difficulty with characterising AI. First, answers to characterisation problems are inherently subjective and perspective-driven, particularly when the subject is an intangible technological system. Second, AI technology is especially difficult to define since the field typically proceeds on inexact anthropomorphic metaphors. Third, AI characterisation problems raise difficult sub-problems, particularly in determining how autonomous an AI system is. The chapter thus argues that a range of plausible AI characterisations …
And The Oscar For Best “Original” Screenplay Goes To . . . Chatgpt: Does The Use Of Ai In Scriptwriting Devalue Hollywood Writers?, Harrison Stern
And The Oscar For Best “Original” Screenplay Goes To . . . Chatgpt: Does The Use Of Ai In Scriptwriting Devalue Hollywood Writers?, Harrison Stern
Touro Law Review
No abstract provided.
Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan
Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan
Faculty Scholarship
Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …
Use Of Public Research And Manufacturing Enterprises To Lower Prescription Drug Prices And Increase Innovation, Alex Moss, Dana Brown, S. Sean Tu
Use Of Public Research And Manufacturing Enterprises To Lower Prescription Drug Prices And Increase Innovation, Alex Moss, Dana Brown, S. Sean Tu
Law Faculty Scholarship
This article proposes building on the success of publicly funded drug research and development and expanding the model to include the full cycle development, testing, manufacture and distribution of innovative and affordable new drugs.
Brief Of Law Scholars As Amicus Curiae In Support Of Appellees And Affirmance, Charles Duan
Brief Of Law Scholars As Amicus Curiae In Support Of Appellees And Affirmance, Charles Duan
Amicus Briefs & Court Filings
Amici are law professors and scholars who focus their scholarship and teaching on intellectual property law, property law, regulatory law, and health law.2 They write to address the plaintiff’s, Novo Nordisk Inc., et al. (Novo), overarching contention that the Medicare drug price negotiation program constitutes an unconstitutional price control. Amici submit this brief to provide the Court with the historical and legal background regarding the constitutionality of government price negotiations and price regulations. The amici explain how Courts have historically ruled on these questions, as well as the far-reaching consequences that a ruling in Novo’s favor would have on the …
Introduction To Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu
Introduction To Intellectual Property, Innovation And Economic Inequality, Daniel Benoliel, Peter K. Yu
Faculty Scholarship
This chapter provides an introduction to Intellectual Property, Innovation and Economic Inequality. It begins by discussing the problem of economic inequality, including the scale of that problem, types of economic inequality, and extant research on such inequality. The chapter then outlines the structure of this volume, which is divided into three parts: (1) theoretical, empirical, and policy issues; (2) intellectual property and national inequality; and (3) intellectual property and global inequality.
Formulating Public Pharma, Shweta Kumar
Formulating Public Pharma, Shweta Kumar
IPIPC Papers & Reports
In 2022, prices for both brand-name and generic drugs in the U.S. were nearly three times as high as prices in comparably industrialized nations, with the cost of insulin products in particular being nearly ten times as high. As a result, 3 out of 10 American adults cannot afford to take their medication as prescribed. Furthermore, in 2024 the U.S. experienced its worst drug shortage in over a decade, with more than 300 drugs in short supply. Generic drugs are particularly vulnerable to shortage, as manufacturers have poor economic incentives to produce drugs with slim profit margins. While the Biden …
Protection In A Virtual Reality: The Dire Need For Trademark And Copyright Law Expansion To Encompass Digital Content Within The Metaverse, Amber N. Roibu
Protection In A Virtual Reality: The Dire Need For Trademark And Copyright Law Expansion To Encompass Digital Content Within The Metaverse, Amber N. Roibu
Touro Law Review
The Metaverse has gained much popularity in recent years, leaving some people with a feeling of uncertainty, but all the while intriguing many others. The multifaceted interactions and activities that take place within the Metaverse have made it a virtual world fertile for not only creative expression but also infringement of existing trademark and copyright protected works. Hand-in-hand with the development of the Metaverse has come the fast-growing interest in buying and selling virtual goods, properties, and non-fungible tokens. To preserve their reputation, avoid costly litigation, and ultimately uphold the exclusive rights allotted to them as intellectual property owners, trademark …
Brief Of 20 Professors Of Law And Public Knowledge As Amici Curiae In Support Of Affirmance, Charles Duan, Rachel Bamberger
Brief Of 20 Professors Of Law And Public Knowledge As Amici Curiae In Support Of Affirmance, Charles Duan, Rachel Bamberger
Amicus Briefs & Court Filings
In Carroll Shelby Licensing v. Halicki, the U.S. Court of Appeals considers whether a car in a film is a "character" for purposes of copyright law. Character copyright protection has proven to be an especially difficult area of the law, and courts and commentators have struggled with the proper boundaries of such protection and whether characters are independently protectable works at all. This brief presents a novel legal argument for resolving the scope of character copyright, at least in the context of inanimate objects in creative works such as cars. While the case law and commentary has to date focused …
Brief Of 15 Scholars Of Law And Medicine As Amici Curiae In Support Of The Petition For Rehearing En Banc, Charles Duan
Brief Of 15 Scholars Of Law And Medicine As Amici Curiae In Support Of The Petition For Rehearing En Banc, Charles Duan
Amicus Briefs & Court Filings
The panel decision announces an over-expansive, ill-defned doctrine of inducement, in which well-pled allegations may be based on nothing more than ordinary marketing materials and mandatory labeling--even when those materials never recite or describe the claimed invention. This unprecedented and erroneous expansion of inducement liability leaves the law uncertain. It is now unclear, among other things, what statements a generic frm may make about its own product's equivalence and how much of the generic product's labeling information must be revised--assuming that such revisions are even regulatorily allowed--in order to avoid the risk of an inducement lawsuit.
From The Bench, Pierre Leval, M. Margaret Mckeown, Jane C. Ginsburg
From The Bench, Pierre Leval, M. Margaret Mckeown, Jane C. Ginsburg
Faculty Scholarship
Lightly edited transcript of panel comments at the 2023 Symposium, “Rearrange, Transform, or Adapt: The Derivative Works Right After Andy Warhol Foundation v. Goldsmith.”
What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik
What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik
Faculty Scholarship
In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …
Hard Truths About Soft Ip, Amanda Levendowski
Hard Truths About Soft Ip, Amanda Levendowski
Georgetown Law Faculty Publications and Other Works
People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators …
Bridging The Paradigmatic Crevasse Between Lawyers And Scientists: The Need For New Institutional Models, Stanley P. Kowalski, Stanley Kowalski
Bridging The Paradigmatic Crevasse Between Lawyers And Scientists: The Need For New Institutional Models, Stanley P. Kowalski, Stanley Kowalski
The University of New Hampshire Law Review
The professions of science and law have traditionally been siloed paradigms, operating often in tandem with each other but rarely intersecting in the interdisciplinary pasture which separates them, a pasture from which an abundance of synergistic collaboration and ensuing creative concepts might sprout. However, the erstwhile never the twain shall meet situation is neither realistic nor even tenable in the current century, a century increasingly dominated by science, technology, invention, innovation, and intellectual property. Simply put, whereas lawyers are risk averse and build constructed realities to argue points and serve clients, scientists seek an objective assessment of truth and accept …