Intellectual Property Law Commons^™

A Musical Cue For Fashion: How Compulsory Licenses And Sampling Can Shape Fashion Design Copyright, Caroline Olivier

Northwestern Journal of Technology and Intellectual Property

The fashion industry is the Wild West of intellectual property law. Fashion design protection is essentially non-existent, and designers take what they want when they want in the form of inspiration or complete copying. As technology advances and enables fashion designs to disseminate at high-tech speeds, there is no longer room for an apathetic approach to fashion intellectual property. If the law is a means for protecting the hard work of up-and-coming artists and providing incentives for innovation, changes must be made.

This note demonstrates how the fashion industry can adopt a copyright and licensing scheme similar to that of …

Pleasure Patents, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The United States Patent and Trademark Office has granted thousands of patents for inventions whose purpose is to facilitate the sexual pleasure of their users. These "pleasure patents" raise a range of novel questions about both patent theory and the relationship between law and sexuality more broadly. Given that "immoral" inventions were long excluded from the patent system, and that sexual devices were widely criminalized for much of the past 150 years, how have patentees successfully framed the contributions of their sexual inventions? If a patentable invention must be both new and useful, how have patentees described the utility of …

Licensed To Rock The Campaign Trail: Are The Ascap And Bmi Political Campaign Licenses Violating Their Antitrust Consent Decrees?, Leah Scholnick

Cardozo Law Review

No abstract provided.

Is The Chemical Genus Claim Really “Dead” At The Federal Circuit?: Part I, Christopher M. Holman

Faculty Works

A 2020 law review article entitled The Death of the Genus Claim (“Death”) purports to document a dramatic shift in the Federal Circuit’s interpretation of 35 U.S.C. 112(a)’s enablement and written description requirements, particularly as applied to chemical genus claims. According to the authors of Death, it has become nearly impossible to obtain a chemical genus claim that will be upheld as valid in the face of a challenge for overbreadth under Section 112(a). Death was cited extensively in Amgens’s successful petition for certiorari in Amgen v. Sanofi, a case asking the Supreme Court to overturn the Federal Circuit’s decision …

Withholding Injunctions In Copyright Cases: Impacts Of Ebay, Pamela Samuelson

William & Mary Law Review

Before the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C., which ruled that courts should exercise equitable discretion when considering whether to issue permanent injunctions in patent infringement cases, courts routinely granted injunctions in copyright cases when plaintiffs proved that defendants had infringed or had likely infringed copyrights. Such findings triggered presumptions of irreparable harm, which were almost never rebutted. Only rarely would courts consider a balancing of hardships or effects of injunctions on public interests.

In the first several years after eBay, commentators reported that eBay had had little impact on the availability of injunctive …

In Memoriam - Professor William Rodolph Cornish, Gordon Ionwy David Llewelyn

Research Collection Yong Pung How School Of Law

With the passing of Professor Bill Cornish, the intellectual property law world has lost one of its most revered pathfinders and the “Max Planck Family” one of its most loved and respected members (I do not hesitate to use the adjective “loved”, even though it may not be one that has appeared frequently in the pages of IIC). As long ago as 1979, Professor Cornish (or “Bill” as he was known to his friends and colleagues, for he was not one to stand on ceremony or titles) first found his way to Bogenhausen and the second floor of Siebertstrasse 3, …

Patent Inconsistency, Saurabh Vishnubhakat

Faculty Scholarship

Despite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article …

The Second Transformation Of The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

This chapter focuses on the structural changes that international investment norms have posed to the international intellectual property regime. It begins by documenting the regime’s first transformation by the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the World Trade Organization. The chapter then explores the regime’s potential second transformation when bilateral, regional, and plurilateral agreements and new investor-state disputes have caused international investment norms to intrude into the intellectual property domain. It continues to identify three sets of problems that have emerged from such intrusion. The chapter concludes by proposing three solutions to …

Ai Derivatives: The Application To The Derivative Work Right To Literary And Artistic Productions Of Ai Machines, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article predicts that there will be attempts to use courts to try to broaden the derivative work right in litigation either to prevent the use of, or claim protection for, literary and artistic productions made by Artificial Intelligence (AI) machines. This Article considers the normative valence of, and the (significant) doctrinal pitfalls associated with, such attempts. It also considers a possible legislative alternative, namely attempts to introduce a new sui generis right in AI productions. Finally, this Article explains how, whether such attempts succeed or not, the debate on rights (if any) in productions made by AI machines is …

Peer Review Analyze: A Novel Benchmark Resource For Computational Analysis Of Peer Reviews, Tirthankar Ghosal, Sandeep Kumar, Prabhat Kumar Bharti, Asif Ekbal

Copyright, Fair Use, Scholarly Communication, etc.

Peer Review is at the heart of scholarly communications and the cornerstone of scientific publishing. However, academia often criticizes the peer review system as non-transparent, biased, arbitrary, a flawed process at the heart of science, leading to researchers arguing with its reliability and quality. These problems could also be due to the lack of studies with the peer-review texts for various proprietary and confidentiality clauses. Peer review texts could serve as a rich source of Natural Language Processing (NLP) research on understanding the scholarly communication landscape, and thereby build systems towards mitigating those pertinent problems. In this work, we present …

Monsanto: Creator Of Cancer Liability

DePaul Business & Commercial Law Journal

No abstract provided.

Impact Of Corporate Response To Controversial Presidential Statements Or Policies

DePaul Business & Commercial Law Journal

No abstract provided.

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 …

Learning From South Korea’S Covid-19 Response: Why Centralizing The United States Public Health System Is Essential For Future Pandemic Responses, Meghan Ricci

Seattle Journal of Technology, Environmental, & Innovation Law

The COVID-19 pandemic revealed stark differences in governmental preparedness across the globe. The United States, once thought of as a global leader in public health, had the theoretical skill and efficiency to handle the pandemic but failed to utilize those skills and resources during an actual health crisis. In the spring of 2020, everyone watched the U.S.’s reaction to the unfolding of the COVID-19 pandemic due to its historic placeholder as a global leader and innovator. However, the performance of the U.S. in response to the global pandemic disappointed both global commentators and U.S. citizens. This paper will compare the …

On The Horizon: Nanosatellite Constellations Will Revolutionize The Internet Of Things (Iot), Diane Janosek

Seattle Journal of Technology, Environmental, & Innovation Law

The Internet of Things has experienced exponential growth and use across the globe with 25.1 billion devices currently in use. Until recently, the functionality of the IoT was dependent on secure data flow between internet terrestrial stations and the IoT devices. Now, a new alternative path of data flow is on the horizon.

IoT device manufacturers are now looking to outer space nanosatellite constellations to connect to a different type of internet. This new internet is no longer terrestrial with fiber cables six feet underground but now looking up, literally, 200 to 300 miles above the earth, to communicate, connect …

A Call For The Library Community To Deploy Best Practices Toward A Database For Biocultural Knowledge Relating To Climate Change, Martha B. Lerski

Publications and Research

Abstract

Purpose – In this paper, a call to the library and information science community to support documentation and conservation of cultural and biocultural heritage has been presented.

Design/methodology/approach – Based in existing Literature, this proposal is generative and descriptive— rather than prescriptive—regarding precisely how libraries should collaborate to employ technical and ethical best practices to provide access to vital data, research and cultural narratives relating to climate.

Findings – COVID-19 and climate destruction signal urgent global challenges. Library best practices are positioned to respond to climate change. Literature indicates how libraries preserve, share and cross-link cultural and scientific knowledge. …

Cancel [© Opyright] Culture: A Legal Analysis Of George Orwell's Nineteen Eighty-Four, Tracy Reilly

Chicago-Kent Journal of Intellectual Property

In this article, I present a combined legal and literary analysis of one of the most destructive themes in contemporary intellectual property scholarship: the putative death of the copyright author. For decades, the vast majority of scholars in all academic disciplines have widely accepted that the conceptual death of the author announced in 1967 by French literary theorist Roland Barthes is today a conclusively proven fact. This piece, however, offers a unique and unquestionably controversial challenge to such a purported denouement: it boldly, and not without trepidation, theorizes that the true goal of some anti-author scholars is the outright annihilation …

Stop Glorifying Fashion Piracy: It Is Time To Enact The Innovative Design Protection Act, Keyon Lo

Chicago-Kent Journal of Intellectual Property

The current low-IP regime in the United States fails to provide adequate protection for fashion designs. Multiple bills had been proposed in Congress to extend copyright protection to fashion designs, but none of these was passed. Proponents of the “Piracy Paradox” doctrine suggest that unregulated copying is paradoxically beneficial to fashion designers and can foster innovation. This paper shows that the doctrine reflects a clear misunderstanding of fashion theories and how fashion trends are formed. It further argues that the fashion industry requires a diverse portfolio of inspired works rather than line-by-line knockoffs to foster trend formation. The Innovative Design …

Ruth Bader Ginsburg’S Copyright Jurisprudence, Ann Bartow, Ryan G. Vacca

Law Faculty Scholarship

[Excerpt} "When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This Article discusses one of the most interesting: copyright law. During her time as a jurist on …

The Public Square Has Eyes (Or Cameras): Anonymous Speech Under The First And Fourth Amendments In The Age Of Facial Recognition, Apratim Vidyarthi

Fordham Intellectual Property, Media and Entertainment Law Journal

Facial recognition technology (“FRT”)—once a futuristic fantasy—is more pervasive than ever and shows no signs of becoming less prevalent. While this technology has its upsides, it elicits the notion of an omnipresent being that is watching and tracking us all the time. FRTs encroach on the First Amendment right to anonymous speech by revealing the identity of speakers and chilling speech. Yet, First Amendment doctrine does not provide much solace, since the right to anonymous speech regulates the government’s ability to force disclosure of a speaker’s identity rather than preventing it from collecting publicly available facial data. The right to …

Ip Interrupted: Diverse Voices In Intellectual Property, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Bringing Section 8 Home: An Argument For Recognizing A Reasonable Expectation Of Privacy In Metadata Collected From Smart Home Devices, Ana Qarri

Canadian Journal of Law and Technology

Internet of Things devices (also known as smart home devices) are a fast-growing trend in consumer home electronics. The information collected from these devices could prove very useful to law enforcement investigations. These individual pieces of metadata — the collection of which might appear harmless on its face — can be highly revealing when combined with other metadata or information otherwise available to law enforcement. This article builds an argument in favour of recognizing a reasonable expectation of privacy in metadata collected from smart home devices under section 8 of the Canadian Charter of Rights and Freedoms. This article presents …

De-Gentrified Black Genius: Blockchain, Copyright, And The Disintermediation Of Creativity, Tonya M. Evans

Faculty Scholarly Works

In a 2016 acceptance speech during the Black Entertainment Television (BET) Awards, actor and activist Jesse Williams used the phrase “gentrifying our genius” to refer to the insidious process of misappropriating the cultural and artistic productions of Black creators, inventors, and innovators. In that speech, he poignantly and unapologetically condemned racial discrimination and cultural misappropriation. This Article chronicles the nefarious history of the creative disempowerment of creators of color and then imagines an empowering future for those who successfully exploit their creations by fully leveraging copyright ownership and transfer termination. To that end, I reference the considerable scholarship of Professor …

Lowering Barriers To Entry: Youtube, Fair Use, And The Copyright Claims Board, Jamie O'Neill

Fordham Intellectual Property, Media and Entertainment Law Journal

The Internet has transformed the landscape of media production by opening the doors of creation to anyone with a computer and an idea. YouTube allows for millions of individuals to post and disseminate content at a low cost to widespread audiences. But while the barriers to entry for content creation have lowered, the barriers to the legal copyright system have remained largely unmoved since YouTube’s inception. This Note seeks to explore the exact specifications of YouTube’s copyright system, both the one mandated by law and the one created voluntarily by YouTube, in order to understand where fair use stands in …

Justice Breyer And Patent Eligibility, 21 Uic Rev. Intell. Prop. L. 71 (2022), David Taylor

UIC Review of Intellectual Property Law

No abstract provided.

Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran

Scholarly Articles

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first- mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming, including board …

From Beyonce To Bohemia: Reforming Joint Copyright Ownership, William Frank Weber

Duquesne Law Review

JaQuel Knight. Reading this name, for many, will give them no feeling of recognition. The same people that do not know his name will more than likely immediately recognize this next name, Beyonce. Her name immediately conjures up iconic images, songs, and music videos. She is a global star that has released six studio solo albums, all of which have reached number one on the U.S. Billboard charts.¹ Two of Beyonce's hit songs are "Single Ladies (Put a Ring on It)" and "Formation." "Formation," with its numerous Beyonce dance routines, the solo dance of a young, hooded boy in …

Technologies Of Servitude Understanding Firmware Tpms As Interests In Personal Property, Anthony D. Rosborough

Canadian Journal of Law and Technology

Widespread computerization and embedded system design has facilitated the pervasive and latent implementation of technological protection measures (‘‘TPMs”) to restrict device firmware access. Often referred to as ‘‘digital locks,” these restrictions impose a whole host of limitations on how owners use and manage the increasing number of products and devices in which they are incorporated. In many cases, TPM restrictions can prevent activities with social, environmental, and economical benefits, including repair, repurposing, and interoperability. In response, governments around the world are now revisiting and scrutinizing their TPM anti-circumvention laws within copyright and competition policy. Beyond these perspectives, this article looks …

Dignity, Intersectional Gendered Harm, And A Flexible Approach: Analysis Of The Right To One’S Image In Quebec, Yuan Stevens

Canadian Journal of Law and Technology

This article draws on critical feminist theory and the framework of intersectionality to examine how courts in Quebec have begun — and are poised — to respond to the phenomenon of the non-consensual sharing of images, particularly if they are of an intimate or sexual nature. Dunn’s work has demonstrated that Quebec’s dignity-focused approach to the protection of identity and privacy ought to guide the development of similar civil recourse provided in common law Canada. This paper fills a gap by identifying the affordances and gaps of Quebec’s legal approach from the vantage point of equality-seeking groups, with a particular …

‘‘Don’T Take On The Responsibilty Of Somebody Else’S Fu**Ed Up Behavior”: Responding To Online Abuse In The Context Of Barriers To Support, Chandell Gosse

Canadian Journal of Law and Technology

Responsibilization, in a true circular fashion, is not only born of but also benefits institutional (e.g., social media companies and law enforcement) and cultural power structures (e.g., misogyny and patriarchy). When targets of online abuse take responsibility for the abuse launched against them, that assumption of responsibility requires energy, and that energy is taken away from efforts to hold institutions and perpetrators accountable. Responsibilization tries to tranquilize change in the service of power. The tricky thing about interrupting this process is that it requires more than just offering better support. It also requires exposing, challenging, and dismantling harmful ideologies, belief …