Intellectual Property Law Commons^™

Fair Use And The Faces Of Transformation, Part I, James Gibson

Law Faculty Publications

The recent Kienitz v. Sconnie Nation case has been the focus of three recent posts in this Intellectual Property Issues series – from me, Doug Lichtman, and Rod Smolla. In Kienitz, the defendant changed a photograph of the mayor of Madison, Wisconsin, into a stylized, high-contrast image, printed on t-shirts that mocked the mayor’s policies. The U.S Court of Appeals for the Seventh Circuit held that the new image constituted a fair use and therefore did not infringe the photograph’s copyright. (The original photo and the stylized version on the t-shirt can be seen here.) …

Copyright Termination And Technical Standards, Jorge L. Contreras, Andrew T. Hernacki

University of Baltimore Law Review

Technical standards, which enable products manufactured by different vendors to work together, form the basis of the modem technological infrastructure. Yet an obscure provision of the U.S. Copyright Act, enacted to allow authors and composers to profit from the later success of their works, now threatens to disrupt this critical technological ecosystem. Enacted in 1976, Section 203 of the Copyright Act permits the author of a copyrighted work to revoke any copyright license or assignment between thirty-five and forty years after the grant was made. For grants made in 1978, the first year to which Section 203 applies, terminations could …

The Tangled Web: A Case Against New Generic Top-Level Domains, Joseph P. Smith Iii

Law Student Publications

This article’s purpose is to provide a general understanding of the legal and financial implications of the new generic top-level domains. By looking at the history and functionality of generic top-level domains, the reader will hopefully have the requisite background to understand the implications of adding new top-level domains.

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Mary Margaret Meg Penrose

SMU Science and Technology Law Review

No abstract provided.

Rethinking Trademark Functionality As A Question Of Fact, Yvette Joy Liebesman

All Faculty Scholarship

Trade dress functionality stands for a reasonable premise: features which are essential to the use or purpose of an article, which affect the cost or quality of the article, or whose exclusive use would put competitors at a significant non-reputation-related disadvantage, are not protectable as signifiers of source or sponsorship. Functionality has broad implications, as a product’s shape can be its most identifiable feature.

The problems plaguing the functionality doctrine have been examined from a substantive point of view; however until the standard by which functionality is determined is changed, these problems are likely to continue to persist. When adjudicating …

Judicial Capacities And Patent Claim Construction: An Ordinary Reader Standard, Greg Reilly

Faculty Scholarship

Patent claim construction is a mess. The Federal Circuit’s failure to provide adequate guidance has created significant problems for the patent system. The problems with claim construction result from the Federal Circuit’s inability to resolve whether claim terms should be given (1) the general, acontextual meaning they would have to a skilled person in the field; (2) the specific meaning they have in the context of the patent; or (3) some combination of the two. The claim construction debate largely overlooks the generalist judges who must implement claim construction. This Article fills that gap, concluding that existing approaches are difficult, …

Machine Learning And Law, Harry Surden

Publications

This Article explores the application of machine learning techniques within the practice of law. Broadly speaking “machine learning” refers to computer algorithms that have the ability to “learn” or improve in performance over time on some task. In general, machine learning algorithms are designed to detect patterns in data and then apply these patterns going forward to new data in order to automate particular tasks. Outside of law, machine learning techniques have been successfully applied to automate tasks that were once thought to necessitate human intelligence — for example language translation, fraud-detection, driving automobiles, facial recognition, and data-mining. If performing …

Judging Similarity, Shyamkrishna Balganesh, Irina D. Manta, Tess Wilkinson-Ryan

Faculty Scholarship

Copyright law’s requirement of substantial similarity requires a court to satisfy itself that a defendant’s copying, even when shown to exist as a factual matter, is quantitatively and qualitatively enough to render it actionable as infringement. By the time a jury reaches the question of substantial similarity, however, the court has usually heard and analyzed a good deal of evidence about: the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s …

Indistinguishable From Magic: A Wizard’S Guide To Copyright And 3d Printing, James Grimmelmann

Washington and Lee Law Review

No abstract provided.

“What He Said.” The Transformative Potential Of The Use Of Copyrighted Content In Political Campaigns —Or— How A Win For Mitt Romney Might Have Been A Victory For Free Speech, Deidre Keller

Journal Publications

In January 2012 Mitt Romney’s campaign received a cease-and-desist letter charging, among other things, that its use of news footage concerning Newt Gingrich’s ethics problems in the House of Representatives constituted a violation of NBC’s copyright. This is just the latest such charge and came amidst similar allegations against the Gingrich and Bachmann campaigns and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. Such allegations have plagued political campaigns as far back as Reagan’s in 1984. The existing literature is nearly devoid of a consideration of such uses as political speech protected by …

Patent Eligibility Post-Myriad: Reinvigorated Judicial Wildcard Of Uncertain Effect, Christopher M. Holman

Faculty Works

In the 1970s and early 1980s the US Supreme Court issued several landmark decisions establishing the contours of patent eligibility, a judicially created doctrine that serves as a gatekeeper to prevent the patenting of subject matter deemed so fundamental as to be better left unpatented. Over the course of the next 25 years the Court of Appeals of the Federal Circuit oversaw a progressive expansion in the scope subject matter deemed patent eligible, highlighted by the adoption in the 1990’s of a “useful, concrete and tangible” test for patent eligibility that for all practical purposes seemed to subsume the patent …

Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine, Christopher M. Holman

Faculty Works

Contrary to popular perception, the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., finding certain patent claims reciting isolated genomic DNA molecules patent ineligible is likely to have a relatively minor impact on the patenting of diagnostics and personalized medicine. Method claims generally play a much more important role than isolated DNA claims in the patenting of innovations in this important technological sector, and the Court’s earlier decision in Mayo v. Prometheus Labs that held claims directed towards non-genetic methods of personalized medicine to be patent ineligible will likely prove significantly more problematic in this …

Does Cariou V. Prince Represent The Apogee Or Burn-Out Of Transformativeness In Fair Use Jurisprudence? A Plea For A Neo-Traditional Approach, Kim J. Landsman

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Quiet On Set! We Have A Trademark To Sell, Brittany Robbins

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Funding Era Free Speech Theory: Applying Traditional Speech Protection To The Regulation Of Anonymous Cyberspace, Katherine Mccabe

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

“You Never Got Me Down, Delay”: Petrella V. Metro-Goldwyn-Mayer, Inc. And The Availability Of Laches In Copyright Infringement Claims Brought Within The Statute Of Limitations, Daniel Sheerin

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Real Separation Of Powers Or Separation Of Law: Can An Article I Administrative Agency Nullify An Article Iii Federal Court Judgment?, Shashank Upadhye, Adam Sussman

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article concerns whether and how Article I administrative agencies can overturn the final judgment of an Article III federal court. The Article identifies if there really is a constitutional crisis afoot because of a violation of the separation of powers doctrine. It also addresses the concern that the federal court is the final arbiter of a legal dispute and that neither Congress nor an agency can step in to undo that which the federal court has done. The Article focuses on the newly enacted America Invents Act and the current use of administrative agency proceeding to reexamine issued patents …

Fame, Property & Identity: The Purpose And Scope Of The Right Of Publicity, Daniel Gervais, Martin L. Holmes

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines the overlaps between the right of publicity and rights granted by trademark law and other deception-based restrictions on the use of names and symbols. It shows that the right of publicity creates a more expansive right rooted in a variegated normative soil with elements of privacy, personhood, and property. The Article suggests a proper scope for the right of publicity that protects free speech. The issue of descendibility is also discussed.

Case Ip News, Case Western Reserve University School Of Law, The Spangenberg Center For Law, Technology & The Arts

Case IP Law News

Vol. 1, #1

• Representing Artists, Athletes and Innovators
• Case and Harvard team up for “Creatvity Without Law” conference on Nov. 7
• Law school launches free online course “Representing the Professional Athlete”
• Leading IP scholars from eight countries come to Case Western for summer academy
• Students learn from industry’s best at Sports an Entertainment Law Academy
• Pegah Zardoost is first student to enroll in JD-MA in Art History & Museum Studies dual degree
• World Intellectual Property Organization (WIPO) Research Lab debuts at law school
• Faculty Updates

In Re Innovatio Ip Ventures, Llc Patent Litigation, Alexander M. Noble

NYLS Law Review

No abstract provided.