Intellectual Property Law Commons^™

The Sociology And Psychology Of Innovation: A Synthesis And Research Agenda For Intellectual Property Scholars, Stephanie Plamondon Bair, Laura Pedraza-Fariña

Faculty Scholarship

Intellectual Property (IP) and innovation law scholarship is generally concerned with the question of how to promote socially beneficial innovation. Until recently, the analysis brought to bear on that question in the literature has been dominated by an individual, rational-actor-centered model grounded in the neoclassical economics tradition. Under this model, individual innovators are assumed to respond to innovation incentives in rational ways, unswayed by their social environments or their own psychology.

Of course, as innovation scholars are beginning to recognize, the road to innovation is much more winding and complex than the straight path from incentive to innovation that the …

Copyright Takes To The Streets: Protecting Graffiti Under The Visual Artists Rights Act, Michaela S. Morrissey

Law Student Publications

Artists who choose the streets as their canvas—whether to beautify neighborhoods, spark political protest, or merely mark their territory—are faced with uncertainties when it comes to questions of copyright protection for their work. Prior to Castillo v. G&M Realty L.P., the rights granted to street artists had generally been uncharted territory. However, a verdict that pitted the rights of street artists against the rights of property owners finally gave street art the credibility many felt it long deserved. In Castillo, the United States Court of Appeals for the Second Circuit recognized graffiti as a work of visual art, thus …

Authoring Prior Art, Joseph P. Fishman, Kristelia A. García

Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

Pay-To-Playlist: The Commerce Of Music Streaming, Christopher Buccafusco, Kristelia A. García

Publications

Payola—sometimes referred to as “pay-for-play”—is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the nineteenth century. Most prominently, the term has been used to refer to the practice of musicians and record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the twentieth century, the FCC has regulated this behavior—ostensibly because of its propensity to harm consumers and competition—by requiring that broadcasters disclose such payments.

As …

Panel 2: Modern Trends And Internet Speech, Enrique Armijo, Paul M. Barrett, Michael A. Cheah, Zahra Takhshid, Felix Wu

Cardozo Arts & Entertainment Law Journal

The article explores the complexities and future of Section 230, focusing on its role in protecting online platforms from liability for user-generated content. Panelists argue that Section 230 is an immunity, not a subsidy, and discuss its implications for content moderation, new technologies, and regulatory oversight. They propose various reforms, including FTC regulation and clarifying Section 230's scope for emerging harms.

“The Customer Is Always Right”: Consumer Perception For “Generic.Com” Trademarks, Sarah M. Simpson (Oliver)

Oklahoma Law Review

No abstract provided.

Antibody Claims And The Evolution Of The Written Description/Enablement Requirement, S Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Olympians As Laborers: How Unionizing Can Help Athletes Bargain For Compensation And Better Structural Support, Sherif Farrag

Fordham Intellectual Property, Media and Entertainment Law Journal

Team USA athletes suffer poor structural support and inadequate compensation despite constituting irreplaceable labor for the multi-billion-dollar Olympic sports industry. This poor support is evident in recent complaints made by Olympic stars of the poor mental health support provided by the United States Olympic & Paralympic Committee and in its failure to prevent nearly two decades of sexual abuse perpetrated on USA Gymnastics gymnasts. The inadequate compensation is apparent as athletes continue to receive no wages for their participation in the Olympics or Olympic-sanctioned events, generally struggle financially, and face restrictions on licensing their name, image, and likeness to partners …

Face The Facts, Or Is The Face A Fact?: Biometric Privacy In Publicly Available Data, Daniel Levin

Fordham Intellectual Property, Media and Entertainment Law Journal

Recent advances in biometric technologies have caused a stir among the privacy community. Specifically, facial recognition technologies facilitated through data scraping practices have called into question the basic precepts we had around exercising biometric privacy. Yet, in spite of emerging case law on the permissibility of data scraping, comparatively little attention has been given to the privacy implications endemic to such practices.

On the one hand, privacy proponents espouse the view that manipulating publicly available data from, for example, our social media profiles, derogates from users’ expectations around the kind of data they share with platforms (and the obligations such …

Failed Analogies: Justice Thomas’S Concurrence In Biden V. Knight First Amendment Institute, Sarah S. Seo

Fordham Intellectual Property, Media and Entertainment Law Journal

Twenty-six years ago, twenty-six words created the internet. Section 230 of the Communications Decency Act is a short, yet powerful, provision that notably protects social media platforms, among other interactive computer services, from liability for content created by third-party users. At the time of its enactment, Section 230 aimed to encourage the robust growth of the then-nascent internet while protecting it from government regulation. More recently, however, it has been wielded by Big Tech companies like Twitter and Facebook to prevent any liability for real-world harms that stem from virtual interactions conducted over their platforms.

Although the Supreme Court has …

Algorithms And Misinformation: The Constitutional Implications Of Regulating Microtargeting, Talia Bulka

Fordham Intellectual Property, Media and Entertainment Law Journal

The increased popularity of social media in recent years has brought with it unwanted consequences. Most notably, the world is experiencing a widespread epidemic of online misinformation and disinformation. In the form of news stories and advertisements, false information about candidates like Joe Biden, Hillary Clinton, and Donald Trump has spread over Facebook, Instagram, Twitter, and TikTok. Since false information is often more sensational than the truth, this information is reposted and shared until it reaches millions of people. However, the real culprit of this misinformation phenomenon is microtargeting—algorithms that exploit users’ personal information and previous media interactions to target …

I See Dead Patents: How Bugs In The Patent System Keep Expired Patents Alive, Dinis Cheian

Fordham Intellectual Property, Media and Entertainment Law Journal

One of the most important days in the life of a patent is the day it dies.

The moment a patent dies, the patent owner loses her monopoly over her invention, ending the stream of income generated by that patent. Without an enforceable patent to protect the invention, the competitors and public can freely buy and sell copycat products that compete with the patent owner’s. Consumers reap the rewards in the form of more options and lower prices.

Normally, those potential competitors must wait exactly twenty years from the date the patent application is filed with the United States Patent …

A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray

FIU Law Review

The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate …

Duty Of Disclosure -- Time To Reconsider After The Dawn Of The Information Age, David R. Soucy Esq.

Marquette Intellectual Property & Innovation Law Review

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Intellectual Property Rights As A Barrier For Developing Countries To Access A Covid-19 Vaccine, Kristina Frkovic

Marquette Intellectual Property & Innovation Law Review

None

Reconstruction Of The Reasonable Person Standard Under Chinese Patent Law, Weihong Yao, Robert H. Hu

Marquette Intellectual Property & Innovation Law Review

None

Patching The Data Security Blanket: How A Stronger, Collaborative Ftc Is The Answer Right Under Our Nose, Jose A. Gonzalez Lopez

Marquette Intellectual Property & Innovation Law Review

None

When Copyright Law Meet Anonymous Street Art, Breanna M. Moe

Marquette Intellectual Property & Innovation Law Review

None

Sabermetrics And Patents?: Open Source, Property Protections, And Alice V. Cls Bank, Keegan L. Rand

Marquette Intellectual Property & Innovation Law Review

None

Incessant Influence: Social Networking Sites Are Utilizing Patented Technology To Commandeer Human Emotion And Behavior, Mirna N. Bazi

Marquette Intellectual Property & Innovation Law Review

None

Justice Breyer And Intellectual Property Law, Daniel Sievert

Marquette Intellectual Property & Innovation Law Review

None

When Love Ends: The Division Of Copyright Between Spouses, Tal Itkin

Marquette Intellectual Property & Innovation Law Review

None

A Machete For The Patent Thicket: Using Noerr-Pennington Doctrine’S Sham Exception To Challenge Abusive Patent Tactics By Pharmaceutical Companies, Lisa Orucevic

Vanderbilt Law Review

Outrageous drug prices have dominated news coverage of the American healthcare system for years. Yet despite widespread condemnation of skyrocketing drug prices, nothing seems to change. Pharmaceutical companies can raise drug prices with impunity because they hold patents on their drugs, which give them monopolies. These monopolies are only supposed to last twenty years, and then competing lower-cost drugs like generics can enter the market, driving down the costs of pharmaceuticals for all. But pharmaceutical companies have created “patent thickets,” dense webs of overlapping patents surrounding one drug, which have artificially extended the companies’ monopolies for years or even decades …

Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

Monitoring Facebook, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

Few companies still in business have a track record as negative as Facebook. Facebook has paid billions of dollars in government fines and paid hundreds of millions in private settlements. Yet, the financial penalties are actually minimal relative to the harm done. Facebook seems to have been involved one way or another in privacy breaches, organized crime, election manipulation, suicide, and even genocide. Mark Zuckerberg, who still controls Facebook, appears to ignore the consequences of his choices, seemingly prioritizing profits over people. He appears to disregard the law and operate without integrity or honesty, excommunicating insiders who speak out or …

A Tale Of Four Decades: Lessons From Uspto Trademark Prosecution Data, Deborah Gerhardt, Jon J. Lee

Faculty Articles

No abstract provided.

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

Barriers To Criminal Enforcement Against Counterfeiting In China, Daniel C.K. Chow

Vanderbilt Journal of Entertainment & Technology Law

Multinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.

Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose …

Under A Nifty Light: Trademark Considerations For The New Digital World, Willajeane Mclean

Faculty Articles and Papers

No abstract provided.

Marijuana And Patents: The Complicated Relationship Between Patent Rights And The Federal Criminalization Of Marijuana, Reza Roghani Esfahani, Howard Bromberg

Articles

Difficult questions arise in the context of marijuana-related inventions, patent procurement, and patent enforcement. These questions are a subset of the contradictions in the law of marijuana, where the federal government prohibits marijuana use and yet many of the states legalize, regulate, and tax it. This federal prohibition could discourage research into the health effects of marijuana and makes it difficult for marijuana-related innovations to satisfy statutory patentability requirements. It also renders enforcement of marijuana patents questionable, making marijuana businesses and patent owners vulnerable to nonpracticing patent entities, sometimes called "patent trolls."