Science and Technology Law Commons^™

The Apathy Economy: Patents, Advertising, And Consumer Indifference, Gavin J. Milczarek-Desai, Derek E. Bambauer

Cardozo Arts & Entertainment Law Journal

Patents function as signals as well as rights to exclude. They inform competitors, investors, employees, and consumers about the invention and its owner. How this information affects consumers is not well understood. Existing studies disagree about how advertising a product or service as patented, or patent pending, affects the price consumers will pay. This Article offers the first major empirical study of that question andfinds that consumers behave with surprising rationality: they will not pay any price premium for a patented product. A product's patent status conveys little information about whether it is superior to competing offerings. The results hold …

The Shifting Economics Of Influencer Sponsorship Disclosures, Uri Y. Hacohen

Cardozo Arts & Entertainment Law Journal

Conventional wisdom holds that disclosing influencer sponsorship diminishes advertising's effectiveness by triggering consumer skepticism. Responding to this perceived transparency gap, regulators have adopted mandatory disclosure regimes to address a perceived market failure: the divergence between private commercial incentives and the public interest in transparency. This Article challenges that assumption. Drawing on a large-scale social media experiment (N=600), it demonstrates that disclosures not only increase consumers' recognition of advertising but also improve their attitudes toward both influencers and brands, while significantly boosting their willingness to share promotional content. These empirical results are further supported by a comprehensive synthesis of the emerging …

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Language Models' Verbatim Copying: Copyright Infringement Analysis Through The Lens Of The New York Times Co. V. Microsoft Corp., Openai, Inc. Et Al., Tian "Tony" Chen

Cardozo Arts & Entertainment Law Journal

In their high-profile suit in late 2023, The New York Times Company ("The Times") alleged that OpenAI's Generative Pre-trained Transformer (GPT) language models might output "near-verbatim" copies ("memorizations") of the works of The Times based on certain user prompts and thus might have infringed on The Times's exclusive rights over its content. One of the central issues is whether the embodiment of unauthorized reproductions of Times content in the GPT models constitutes a copyright infringement. This comment argues that OpenAI might have a colorable fair use affirmative defense despite the plaintiff's prima facie copyright infringement claim.

Existing literature on the …

Al Assisted Inventing And Its Impact On The Patent System, Ben Gross

Cardozo Arts & Entertainment Law Journal

The note examines the challenges posed by AI-assisted inventing to the patent system, particularly focusing on the "black box" nature of AI, which obscures the inventive process and complicates patent requirements such as inventorship and disclosure.

Duped: The Implications Of The Proliferaiton Of Superfake Luxury Goods And What Consumers May Not Have Considered, Riann Colbert

Cardozo Arts & Entertainment Law Journal

The proliferation of "Superfake" luxury goods, which are high-quality counterfeit items nearly indistinguishable from authentic products, poses significant challenges to trademark law, consumer protection, and the broader economy. These items, often sold through e-commerce platforms, not only undermine legitimate businesses but also expose consumers to health risks, support organized crime, and perpetuate environmental harm. The note advocates for enhanced legal frameworks and consumer education to mitigate these issues.

The Doors Of Janus: A Critical Analysis Of The Socio-Technical Forces Eroding Trust In The Rule Of Law, Anuj Puri, Esther Keymolen

Cardozo Arts & Entertainment Law Journal

The Rule of Law is neither just a principle nor solely the institutions that embody that principle, a critical aspect of the Rule of Law is its grounding in trust which often gets neglected in the surrounding discourse. When the citizens' trust in the Rule of Law weakens, the Rule of Law becomes fragile. In this article we examine the impact of emerging technologies on the citizens' trust in the Rule of Law. Our analysis is specifcally focused on the effect of systemic disinformation which is likely to worsen with the advent of Generative AI, algorithmic misgovernance, and the digitalization …

"The Gift Of A Golden Voice": Shaping The Right Of Publicity To Protect Performers From A.I. Abuses, Sebastian Saavedra

Cardozo Arts & Entertainment Law Journal

The note explores the evolving nature of the right of publicity, a unique area of intellectual property and privacy law that protects individuals' control over their likeness and persona. It examines the challenges posed by emerging technologies, particularly AI-generated content, and advocates for a balanced approach that integrates elements from trademark and copyright law while respecting First Amendment rights. The analysis emphasizes the need to protect performers' rights to their public image without undermining established legal frameworks.

Can Commercials Be Art? An Analysis Of Intellectual Property Preawareness In The Barbie Era, Shreya Kalidindi

Cardozo Arts & Entertainment Law Journal

The note examines the evolution of advertising, particularly native advertising, and critiques the inadequacy of current regulatory frameworks in addressing its deceptive potential. It highlights how modern advertising practices, such as product placement in films like Barbie, blur the line between commercial speech and artistic expression, challenging the Federal Trade Commission’s (FTC) ability to protect consumers. The analysis argues that strengthening existing regulations is insufficient and advocates for empowering consumers to make informed decisions, as the legal system struggles to keep pace with innovative advertising strategies.

"Be Thankful I Don't Take It All ('Cause I'M The Taxman)": Music Transactions, Catalog Sales, And Tax Treatment, Hannah M. Bartfield

Cardozo Arts & Entertainment Law Journal

This Note examines music catalog transactions from a tax perspective to determine the key considerations, benefits, and consequences of such a transaction, and then addresses why these characteristics are inconsistent with the purpose of copyright law. First, this Note addresses the copyright concepts that govern the music industry in Part I.B. In Part II, royalties are discussed as one method that musicians can rely on to earn revenue from their music, including a summary of how those earnings are taxed. In Part III, these findings will be weighed against similar considerations for the sale of an artist's music catalog, including …

The Law Of The New Musical Author, Eyal Brook

Cardozo Arts & Entertainment Law Journal

The process of musical creation has been transformed materially in the Digital Age due to technological developments, both regarding the technologies for making music and regarding novel stylistic developments. New musical practices, based on novel technology, afford entirely new modes of creative authorship. The effects of such shifts have redefined the nature of music and the role of musicians in fundamental ways. This article opens a new debate regarding the identity ofthe new musical author and the changes to the musical creative process.

As such changes have impacted the musical creative process, there are necessary changes required to adapt the …

Lost In Translation: The Limits Of Explainability In Al, Hofit Wasserman-Rozen, Ran Gilad-Bachrach, Niva Elkin-Koren

Cardozo Arts & Entertainment Law Journal

As artificial intelligence becomes more prevalent, regulators are increasingly turning to legal measures, like "a right to explanation," to protect against potential risks raised by AI systems. However, are eXplainable AI (XAI) tools-the artificial intelligence tools that provide such explanations-up for the task?

This paper critically examines XAI's potential to facilitate the right to explanation by applying the prism of explanation's role in law to different stakeholders. Inspecting the underlying functions of reason-giving reveals different objectives for each of the stakeholders involved. From the perspective of a decision-subject, reason-giving facilitates due process and acknowledges human agency. From a decision-maker's perspective, …

(In)Dependence Day: Why The Modern Streaming Industry Requires Modern Antitrust Enforcement, Samuel Kahn

Cardozo Arts & Entertainment Law Journal

The note argues that the contemporary streaming industry, dominated by a few major platforms, mirrors the pre-Paramount era's anticompetitive practices, necessitating a reexamination of antitrust laws to address oligopolistic structures, protect independent creators, and ensure consumer access to diverse content. It contends that the repeal of the Paramount Decrees and the failure of current antitrust frameworks to adapt to the streaming industry's unique challenges have allowed media giants to grow unchecked, stifling competition and innovation.

Deceptive By Nature: A Model For Regulating Native And Embedded Advertising In The Contexts Of Children's Audiences, Zach Cihlar

Cardozo Arts & Entertainment Law Journal

The note advocates for enhanced regulatory measures to protect children from deceptive native and embedded advertising in digital media. It emphasizes the need for the Federal Trade Commission (FTC) to expand its regulatory framework to classify such advertising as deceptive, leveraging existing laws like the Federal Trade Commission Act (FTCA) and the Children's Online Privacy Protection Act (COPPA). The proposed model suggests a combination of stricter regulations, parental involvement through technology, and strengthened self-regulatory mechanisms to address the challenges posed by modern advertising formats.

Bias Notification Duty, Eldar Haber, Shai Stern

Cardozo Arts & Entertainment Law Journal

Algorithms are often tainted with bias that could negatively affect subjects' lives in many aspects. But while policymakers and scholars tend to focus their attention on methods to fix the bias within the algorithm or its output, they neglect a crucial piece of the puzzle: when companies discover bias and fix it in the algorithmic output, they do so behind the scenes. While such a move might debias the output, society remains in the dark about its existence or how it might have affected the outcome. Society thus misses a unique opportunity to study social and cognitive biases that shape …

Can Chatgpt And The Like Be Your Co-Authors?, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

On November 30, 2022, OpenAI released an AI based chatbot called ChatGPT (Generative Pre-trained Transformer). This AI system uses natural language processing (NLP) techniques to generate written text by learning the patterns and structures of natural language. ChatGPT is a versatile chatbot with the ability to write speeches, news articles, and essays either wholly or partially. Some users acknowledge ChatGPT as a co-author of the generated text, while others only acknowledge its use in writing the document. In fact, this issue became so pressing in academia that Springer Nature, the world's largest academic publisher, announced that software like ChatGPT cannot …

Service Of Process Via Nft Airdrops: The Pathway To Private Litigation For Injured Web3 Plaintiffs, Sophia Dudgeon

Cardozo Arts & Entertainment Law Journal

The note explores the evolving landscape of legal process in the digital age, focusing on the use of blockchain technology and NFTs for serving legal notices. It argues that courts are increasingly adapting traditional due process principles, such as those established in Mullane v. Alabama, to accommodate emerging technologies. The analysis highlights the landmark case LCX AG v. 1.274M U.S. Dollar Coin, where a court approved serving process via NFT airdrop, demonstrating how technological innovations can enhance access to justice in digital asset disputes. The author advocates for courts to embrace expansive interpretations of alternative service methods to …

Introductory Remarks, Carly Rothstein

Cardozo Arts & Entertainment Law Journal

This introductory remark explores the implications of recent Supreme Court decisions in Bad Spaniels and Andy Warhol on intellectual property law, focusing on the evolving landscape of copyright and trademark protections. It highlights the challenges and opportunities these rulings present for balancing artistic expression, cultural norms, and legal frameworks. The symposium serves as a platform for scholars and practitioners to discuss these developments and their broader impact on IP law and policy.

Panel 1: Copyright Law, Michael W. Carroll, Peter Karol, Christopher Sprigman, Jacob Noti-Victor

Cardozo Arts & Entertainment Law Journal

The Warhol v. Goldsmith case has reshaped the interpretation of fair use in copyright law, emphasizing market competition and the commercial purpose of the use. The Supreme Court's decision focused on the commercial licensing of Warhol's work, highlighting the importance of assessing whether the use competes with the original work's market. This shift could influence future cases, particularly in technology and art, by potentially altering how transformative use and market competition are evaluated.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Cardozo Arts & Entertainment Law Journal

In Google LLC v. Oracle America, Inc. ("Google v. Oracle"), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith ("Warhol"), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright.

This Essay argues that these arguments were instead grounded in a form of "prospect theory" of copyright scope that …

Introductory Remarks, Ethan Bordman, Ira S. Dizengoff, Sophie Dizengoff

Cardozo Arts & Entertainment Law Journal

The article discusses the legal implications and challenges surrounding college athletes' rights to profit from their name, image, and likeness (NIL), following the NCAA's 2021 decision to lift its ban on athletes cashing in on their fame. The symposium explores the evolving legal landscape, including regulatory frameworks, equity issues, and the role of collectives, highlighting the need for clearer guidelines to address the complexities arising from this change.

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Putting Trust In Technology: A Pandemic's Effect On Remote Estate Planning, Amy Weiss

Cardozo Arts & Entertainment Law Journal

The COVID-19 pandemic accelerated the adoption of remote witnessing and notarization in trusts and estates, offering convenience but introducing risks like fraud and privacy concerns. The article advocates for a balanced approach, suggesting uniform national standards to mitigate these risks while maintaining the benefits of remote processes.

Pay No Attention To The Influencer Behind The Curtain, Eliza Logan

Cardozo Arts & Entertainment Law Journal

The note argues that the Federal Trade Commission (FTC) must strengthen its regulation of social media influencers, particularly on platforms like Instagram, due to their significant influence on consumer behavior and the potential for deceptive marketing practices. It emphasizes that influencers should be held accountable similarly to advertising agencies, as their unique ability to build trust and authenticity with followers makes their endorsements more impactful than traditional advertising.

Combating False Election Information In A Section 230 Protected World: To Moderate Or Not To Moderate, Caitlin Muraca

Cardozo Arts & Entertainment Law Journal

The note examines the challenges of combating false election information on social media platforms, focusing on the role of Section 230 of the Communications Decency Act. It argues that while Section 230 is crucial for protecting online speech, its current form is inadequate in addressing the spread of misinformation in the modern digital landscape. The note evaluates various proposals for reform, including the repeal or modification of Section 230, and suggests a balanced approach that maintains its protections while incentivizing improved content moderation to combat false election information.

Accelerating Toward The Inevitable: How Covid-19 Helped Alter Traditional Models Of Talent Compensation In The Film Industry, Raven Berzal

Cardozo Arts & Entertainment Law Journal

The COVID-19 pandemic accelerated a significant shift in the film industry’s talent compensation models, driven by the rise of streaming platforms and the decline of traditional theatrical releases. This transformation has moved compensation structures from backend profit-sharing to upfront payments, raising legal and contractual challenges. The Johansson v. Disney case exemplifies these disputes, highlighting the need for clearer definitions of success and compensation in the streaming era. The industry is likely to adopt hybrid models, blending upfront fees with alternative compensation methods, as streaming continues to reshape how talent is paid.

Randomness, Ai Art, And Copyright, Richard H. Chused

Cardozo Arts & Entertainment Law Journal

The article argues that art created with the assistance of AI tools should generally be eligible for copyright protection. It posits that human agency is present in the creation of AI-generated art, as traditional artistic works also incorporate randomness and unpredictability. By examining works by artists like Alexander Calder, Robert Rauschenberg, and John Cage, the analysis demonstrates that randomness and unpredictability have long been protected under copyright law, suggesting that AI-generated art should receive similar treatment.

Mute Eloquence: A Gallery Of Contracting Emojis, Courtney Leon

Cardozo Arts & Entertainment Law Journal

The increasing use of emojis in electronic communications, exacerbated by the COVID-19 pandemic, has introduced complexity into contract law due to the lack of standardized interpretation. Courts are encountering disputes over emoji meanings, highlighting the need for a uniform framework. The proposed Emoji Codebook aims to address this by categorizing emojis and providing consistent interpretations, aligning with existing laws like the UCC and E-SIGN Act to facilitate clearer contract formation and mitigate misunderstandings.

Opening Remarks, Christopher J. Buccafusco, Matthew Vernace

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Section 230 And The Right To Remove Vaccine Misinformation, Michael A. Cheah

Cardozo Arts & Entertainment Law Journal

Recognizing its clear propensity to cause serious public harm, many online platforms have restricted vaccine misinformation. This essay argues that these platforms are protected from liability when they remove such content under Section 230 of the Communications Decency Act. The essay conducts a textual and policy-based analysis of the "publisher" immunity conferred by Section 230(c) (1) and the immunity for restricting objectionable materials under Section 230(c)(2) and concludes that both protect the removal of vaccine misinformation. The essay further argues that repealing Section 230 will not encourage platforms to combat vaccine misinformation as some policymakers have suggested. That is because …