Intellectual Property Law Commons^™

A New Curveball: An Analysis Of The Current Nil Battle That Is Destabilizing The Landscape Of College Athletics, Sierra Hamilton

Journal of Intellectual Property Law

On June 21, 2023, the Supreme Court unanimously ruled that the NCAA was in violation of antitrust law and found unlawful the organization’s restrictions on education-related benefits schools could offer student-athletes. This ruling marked the official beginning of the Name, Image, and Likeness (NIL) boom throughout college athletics. Presently, the NCAA has failed to develop uniform regulations that conform to the standards set by the Supreme Court and appease the nationwide educational institutions. As a result, states have drafted various bills and laws to regulate NIL contracts throughout their jurisdiction. Foreseeably, this has created an air of uncertainty around NIL …

The Secret Service Industry: Reimagining Trade Secret Protections To Curb Exploitation In The Hospitality Industry, Caleb Graham

Journal of Intellectual Property Law

This paper observes and analyzes the current discussion around the exuberant use of non-compete clauses in the business world by placing a focus on the hospitality industry and why, in an time where we are witnessing the demonization of non-competes it might be prudent to revisit and enhance trade secret laws to make them better equipped to handle the caseload that would inevitably come should non-competes be banned by the FTC. While the near-ban or complete ban of non-competes would certainly affect other industry fields and bodies of law, the hospitality industry is one that has been particularly scrutinized as …

Bootlegging For The Better: Livestreams And The Music Industry, Delta Pennington

Journal of Intellectual Property Law

As online presence has continued to become a more important aspect of everyday, it has become a norm in American Culture to share every aspect of life, including concert attendance. While artists expressed distaste in the past for recording at concerts, there has been a shift by musicians to acceptance of recording at concerts, sometimes being an important form of cheap promotion. Artists that do continue to express distaste for concerts being shared on social media have turned to non-legal remedies to solve their problem. Although there is a remedy available to artists for the livestreaming of concerts through the …

The Fringe Musician, The 360 Deal, And A New Look At Copyright And Competition In Music, Michael L. Menna

Journal of Intellectual Property Law

This article is guided by two questions: (1) How well does the law actually protect musicians from market exploitation? (2) What new perspectives and legal strategies can better secure their bargaining power and financial wellbeing? Copyright and antitrust are not mutually exclusive in music or in any other industry, yet there are important lessons to be learned from comparing how the musician’s prominence in each doctrine does and doesn’t correlate to what its laws can really do for different members of that creator class. Stakeholders frequently cast copyright as an essential necessity for “everyone in the music industry,” but this …

Art Wants To Be Free, Brian L. Frye

Journal of Intellectual Property Law

What is fair use? In Warhol v. Goldsmith, the Supreme Court held that licensing a painting based on a photograph wasn’t a transformative fair use, because the painting competed with the photograph in the market for images of the same person. This article tells the story of Warhol v. Goldsmith, analyzes the opinion, and explains how it changed copyright doctrine. It also presents a theory of how appropriation artists can use the public domain to insulate themselves from liability for copyright infringement.

Cardozo Aelj’S Spring 2025 Symposium Delves Into The Implications Of Artificial Intelligence On Copyright Law And Publicity Rights, Cardozo Arts & Entertainment Law Journal

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The Cardozo Arts and Entertainment Law Journal is pleased to present the 2025 Arts and Entertainment Law Journal Symposium: Fake It Till You Make It?: Striking the Right Balance Between Innovation, Publicity Rights, and Copyright. This event will bring together leading scholars and industry experts to explore the legal challenges posted by AI-generated voices, deepfake performances, and digital replicas.

Exploitation Of User Generated Content For Generative Ai: Making A Case For Data Privacy Rights In Your Social Media Posts, Millicent Wong

UC Law SF Communications and Entertainment Journal

Nearly all user-generated content contains personal data. Yet, Big Tech companies can exploit the user-generated content you posted because under current legal frameworks, the information is already public (no matter how many sordid details you’ve shared in that social media post). In the age of the great generative AI arms race between OpenAI, Google, and Meta, technology companies are collecting mass amounts of user-generated content on their platform for training AI models. This Note argues that current data privacy practices with respect to user-generated content is anti-consumer, because it fails to take today’s technological advancements, business practices, and online norms …

From Murphy To The Seminole Compact: California’S Pathways To Sports Betting Legalization Without A Constitutional Amendment, Makenalani “Roo” Cash

UC Law SF Communications and Entertainment Journal

No abstract provided.

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Replicating Reality: Is Trademark Use In The Metaverse Commercial Or Expressive?, Vito Quaglia

UC Law SF Communications and Entertainment Journal

This Note will examine how trademark law should be applied to emerging digital spaces known as metaverses, which can function as both new-age video games and digital marketplaces. The Note will first explain the concept of the metaverse. Next, it will lay out the current landscape of trademark law as it is applied to marks in artistic works, including First Amendment protections for artistic relevance. Then, the Note will illustrate trademark infringement lawsuits dealing with fashion and digital media. Following that, this Note will detail how trademark law is applied to video games, especially in cases involving artistic expression. The …

Humanist Copyright, Jane C. Ginsburg

Faculty Scholarship

This exploration of the role of authorship in copyright law proceeds in three parts: historical, doctrinal, and predictive. First, I will review the development of author-focused property rights in the pre-copyright regimes of printing privileges and in early Anglo-American copyright law through the 1909 U.S. Copyright Act. Second, I will analyze the extent to which the present U.S. copyright law does (and does not) honor human authorship. Finally, I will consider the potential responses of copyright law to the claims of proprietary rights in AI-generated outputs. I will explain why the humanist orientation of U.S. copyright law validates the position …

Drowning In The Patent Pool: Is Statutory Invention Registration A Lifeguard?, Henry H. Perritt Jr.

West Virginia Law Review

Patents for inventions, available since the first Congress enacted the Patent Law of 1790, have been controversial. Defenders justify patents on the grounds that they are necessary to protect inventors from free riding—copying that would deprive the inventors of an opportunity to recover the costs of development. Detractors attack patents as unnecessary monopolies, thwarting innovation. The debate continues, even as the law itself has remained remarkably constant. Technology and industry structure have not remained constant, however. Patents have proliferated, resulting in patent thickets that make it impossible to create and market any innovative product without infringing hundreds of patents. Patent …

Preserving Pixels: The Dmca And The Quest To Preserve Video Gaming’S Legacy, Samantha Ennis

Washington and Lee Law Review

Video games have fundamentally transformed how humans learn, play, and connect, becoming essential cultural artifacts that warrant careful preservation for present and future study. Yet, video game preservation has emerged as a critical challenge for cultural institutions as the medium rapidly evolves and early works become inaccessible due to technological obsolescence and legal barriers. Without immediate action to address the limitations of current Digital Millennium Copyright Act (“DMCA”) exemptions for video game preservation, libraries, archives, and museums risk permanently losing access to historically significant games, with studies showing 87% of pre-2010 video games are already inaccessible. Congress should amend the …

The “Blurred Lines” Between Copyright Law And Its Role In The Music Industry, Caroline Mcdonald

Senior Theses

This thesis examines the dynamic relationship between copyright law and the music industry by analyzing three landmark cases: Bright Tunes Music Corp. v. Harrisongs Music, Ltd., Williams v. Gaye, and Skidmore v. Zeppelin. Through these case studies, the paper explores how courts assess copyright infringement using the tests of extrinsic and intrinsic similarity, as well as identifies the weight of expert testimony in court, and the role of legal tools such as the inverse-ratio rule. Each case illustrates different implications for artists: from the threat of subconscious plagiarism to the controversial expansion of protectable musical elements, and finally, a shift …

Bibliography For "Literary Copyright Display", Arianna Tillman, Isabella Piechota, Annikah Carpio

Library Displays and Bibliographies

A bibliography created to support a display about literary copyright in April 2025 at the Leatherby Libraries at Chapman University.

Infringing Information Architectures, Michael Goodyear

Articles & Chapters

Information architectures—systems that facilitate storing and sharing data and content—underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. Since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers and users directly infringe others’ copyrights. Almost fifty years ago, however, a largely unexplored paradigm shift occurred. Copyright owners started to allege that information architecture providers should be broadly secondarily liable for all their users’ infringements. These claims, which this Article terms architectural infringement claims, pose an acute challenge to the …

Design Patent Infringement As Unfair Competition, Mark D. Janis

William & Mary Law Review

The rule for determining design patent infringement requires an assessment of substantial similarity through the eyes of an ordinary observer—similarity sufficient to induce the observer to purchase the infringing design supposing it to be the patented design. That test, which originates in the Supreme Court’s 1871 Gorham Manufacturing Co. v. White decision, is an anomaly. It is a patent infringement test framed in language that would be more at home in a trademark infringement or unfair competition case. Yet the Federal Circuit has insisted that design patent infringement is unlike trademark infringement or unfair competition, dismissing any kinship as superficial. …

Examining The Implications Of A Stricter Tacking Standard In The Aftermath Of Bertini V. Apple, Catherine S. Condyles

University of Richmond Law Review

Trademarks serve to indicate an item’s source of origin and distinguish it from other commodities in the market. When there are two or more entities with similar trademarks, who offer related goods or services, the entity to use the mark first has seniority over the other users. Furthermore, the senior user has priority, making him or her “entitled to enjoin other ‘junior’ users from using the mark, or one that is deceptively similar to it” in a way that is likely to confuse consumers. But under certain circumstances a trademark owner can claim priority over a mark by relying instead …

Generative Al's Illusory Case For Fair Use, Jacqueline C. Charlesworth

Vanderbilt Journal of Entertainment & Technology Law

Pointing to Authors Guild, Inc. v. Google Inc., Authors Guild, Inc. v. HathiTrust, Sega Enterprises Ltd. v. Accolade, Inc. and other leading technology-driven fair use precedents, artificial intelligence (AI) companies and those who advocate for their interests claim that mass unauthorized reproduction of books, music, photographs, visual art, news articles, and other copyrighted works to train generative AI systems is a fair use of those works. Though acknowledging that works are copied without permission for the training process, the proponents of fair use maintain that an AI machine learns only uncopyrightable information about the works during that process. Once trained, …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

Faculty Scholarship

Most literature at the intersection of copyright and AI has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country's economic and technological future.

This article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentive-based. The article then discusses a third line of arguments—harmonization-based arguments—and identifies select instances …

Do You Know Where Your Trademark Is? How The Fourth Circuit’S Interpretation Of The Anticybersquatting Consumer Protection Act Correctly Protects Trademark Owners Online, Alexa Blandeburgo

St. John's Law Review

(Excerpt)

This Note argues that the Fourth Circuit correctly held that “registration” encompasses both the initial and subsequent registration of a domain name under the ACPA. The Ninth Circuit’s narrow interpretation oversimplified the complexity of domain name ownership and thereby created a narrow loophole for cybersquatters to evade liability. Part I of this Note provides an overview of cybersquatting and the statutory framework that practitioners used prior to the enactment of the ACPA. Part II of this Note compares the ACPA and the UDRP and why a trademark owner would choose one avenue for relief as opposed to the other. …

Deepfakes And Shallow Laws: Regulating Distorted Narratives In The Political Cyberspace, Shimona Mohan, Sarthak Wadhwa

Indian Journal of Law and Technology

With a sizable section of the global population witnessing electoral churn, protests, and resistance movements in the past couple of years, this is clearly a watershed moment for modern democracies vis-à-vis technological advancements. Electoral canvassing in these democracies has expanded its footprint in the digital space, be it through social media or navigating the general contours of anonymity, engagement, and misinformation that govern our online worlds. In this context, the advent of deepfakes in the recent past, and the exponential evolution of the technology both for outreach and disruption, has invited acute regulatory attention and intervention. However, traditional policy design …

Tying, Self-Preferencing And The Digital Competition Bill: A Changing Landscape For Competition Intervention?, Pankhudi Khandenwal

Indian Journal of Law and Technology

The dominance of a few major entities in digital markets has led to stricter enforcement under competition law. Many jurisdictions have developed an ex-ante regulatory framework, such as the Digital Markets Act (DMA) in the EU. The need for an ex-ante regulation has also been highlighted in India, where the Committee on Digital Competition Law has issued the Draft Digital Competition Bill (“DDCB”). Some of the prohibitions included in the bill are tying, bundling, self-preferencing, restricting third-party applications, and steering. There have been opinions by various scholars on the impact of such legislation on the Indian economy, comparing the same …

Goods And Service Tax On Online Skill Gaming: A Constitutional Perspective, Eeshan Sonak, Saranya Ravindran

Indian Journal of Law and Technology

In light of the rapid growth and the consequent regulatory focus on the taxing of online gaming in India, this paper discusses the CGST (Amendment) Act, 2023 and the amendment in CGST Rules that mark a shift from a Gross Gaming Revenue model to a turnover model of taxation and impose a uniform tax on games of skill and chance. It analyses the compatibility of this shift with our GST regime, undertakes a policy analysis of its economic desirability by drawing from the experiences of other jurisdictions, and challenges its constitutionality by showing that imposing an onerous burden that could …

The Perils And Promises Of Artificial Intelligence In Criminal Sentencing, Tasnimul Hassan Md

Indian Journal of Law and Technology

The proliferation of technology has resulted in an increased reliance of individuals on technological devices. The world is progressively being automated using Artificial Intelligence (AI) systems that are implemented to achieve specific objectives. Automation is now an important part of people’s lives, and it could heavily change the criminal justice system. This article looks at the use of AI in criminal sentencing in India, arguing that AI-based sentencing can reduce sentencing disparity, either if it is subject to a human element or it is fed with ample data that no case-fact is left out. The paper argues that since AI …

Digital Child Labor Exploitation In Sharenting: Proposing Legislative Solutions For Enhanced Child Protection, Joana Guzman Gonzalez

University Honors Theses

This thesis explores the implications of sharenting -- the practice of sharing children's information on mass media--raises urgent concerns about child safety and potential human rights violations -- and the exploitation of children in digital spaces, focusing on the risks of privacy, safety and mental health pose by the rise of kidfluencers – children influencers under the age of 18 – and family vlog channels. Through a comprehensive literature review, the research examines children's online presence's emotional, legal, and societal impacts, drawing from case studies such as Sheri Franke, Wren Eleanor, Ryan Kaji, and JoJo Siwa. The analysis reveals a …

Brief Of 11 Narcolepsy Patients, Public Interest Orgnizations, Medical Professionals, And Professors Of Law As Amici Curiae In Support Of Defendants-Appellees, Charles Duan

Amicus Briefs & Court Filings

Amici curiae are patients, organizations, medical professionals, and legal scholars who share a common interest in advancing the law toward better patient health and welfare. New, clinically superior drug products for treating rare diseases and conditions tremendously benefit patients and society, because those products offer choice, competition, and improved patient care. In filing this brief, amici hope to make this Court aware of the broad real-world implications of this case, both for narcolepsy patients and for the public interest generally. Generation Patient is a nonprofit organization that represents young adults with chronic and rare conditions across the United States. Created …

Brief Of 12 Narcolepsy Patients, Public Interest Organizations, Medical Professionals, And Professors Of Law And Medicine As Amici Curiae In Support Of Defendants-Appellees (Amended To Add Further Signatories), Charles Duan

Amicus Briefs & Court Filings

A prior copy of this brief was filed, inadvertently omitting one signatory. This brief has accordingly been amended to correct the error, reflected in the Certificate as to parties and the Appendix.

The Legal Reckoning Of Reality Television: Contestant Rights And Producer Responsibilities, Tyler Caffrey

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Reality television has become a dominant force in modern entertainment. Behind the scenes, however, contestants face serious legal and ethical concerns. Many reality TV participants allege exploitative working conditions, misleading contracts, and inadequate compensation. Traditionally, networks classify contestants as independent contractors, exempting them from labor protections such as minimum wage and overtime pay.

Brief Of 30 Scholars Of Law, Economics, And Medicine As Amici Curiae In Support Of The Petition, Charles Duan

Amicus Briefs & Court Filings

Amici curiae are scholars of law, economics, and medicine, listed in the Appendix. Their interest is in the proper development of patent law in ways that best promote the interests of innovation access and the public interest.