Intellectual Property Law Commons^™

Characters In Copyright Law: Extraordinary Rules For Ordinary Content, Robert F. Helfing

Marquette Intellectual Property & Innovation Law Review

Characters are a breed apart in copyright law. Only they have a special standard of creativity. Only they must have unique elements to qualify for protection. Only they are exempt from analysis as derivative works when they appear in multiple works, and only they are required to maintain consistent features in order to maintain protection previously earned. These and other idiosyncrasies do not follow naturally from precedent or statutory law, but operate heedless of and even contrary to legal authority.

This article shows that, after fifty years of undifferentiated treatment, the courts suddenly began to apply divergent rules to characters. …

Stars, Statutes, And Sharing: Designing Global Ip Frameworks For Space-Based Discoveries, Ed Koellner

Marquette Intellectual Property & Innovation Law Review

As humanity stretches farther into space physically, commercially, and intellectually, contemporary legal frameworks are beginning to creak under the pressure. Intellectual property laws seem to be playing catch-up. Those laws were written for a world bound by borders and gravity, not for orbital labs, the Earth’s Moon, or AI-generated inventions drifting above the Earth.

This article takes a closer look at the increasingly complex intersection of space law, intellectual property, and artificial intelligence. This domain is no longer reserved for state-led missions or high-level treaties. Now and in the near future, a university lab or a private startup might be …

The Role Of Antitrust In Innovation: Standard Essential Patents, Alexandra Perez

Marquette Intellectual Property & Innovation Law Review

A Standard Essential Patent (SEP) is a patent that is chosen to streamline a chosen industry standard to promote economic growth and consumer satisfaction. Consumers interact with SEPs in almost everything they do in their daily life, from connecting to WIFI to charging any device. This is possible because the patent selection process requires patent owners to license their patents on fair, reasonable, and non-discriminatory terms (FRAND) upon selection.  Yet, without proper regulation, this is easier said than done. Often SEP implementers are left with two options, entering exploitative agreements or rely on litigation to address unchecked anticompetitive behavior. This …

Can Miley Cyrus Really Buy Her Own Flowers: An Analysis Of Answer Songs In Relation To Fair Use, Emmeline Eike

Marquette Intellectual Property & Innovation Law Review

September 16, 2024, Tempo Music Investments LLC filed a copyright infringement complaint against Miley Cyrus. The complaint is due to the striking similarities between Cyrus’s song, Flowers, and Bruno Mars’s song When I Was Your Man. Tempo Music attributes Cyrus’ success with Flowers in 2023 to When I Was Your Man’s existence and not purely from the song itself.  In discussing this lawsuit, this comment explores how likely a fair use claim is to succeed, while also analyzing how the parody fair use defense is currently applied to songwriting. Additionally, it also discussed parodies vs. answer/response songs, specifically what the …

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

The Scope Of The Prior Art, John R. Thomas

Georgetown Law Faculty Publications and Other Works

The courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an invention may be patented by comparing it to the state of the art, which the patent community terms the “prior art.” Heavily influenced by Oliver Wendell Holmes Jr. and Learned Hand, and more recently expanded by the America Invents Act, the Patent Act features the broadest definition of prior art in U.S. history. No matter how remote, evanescent, or obscure, any activity or publication that occurs one day before the inventor files a patent application—anywhere in the world—may prove patent-defeating.

The government also holds patent proprietors accountable …

Medellín Manifesto On Transnational Value Chains And International Law, Diane Desierto

Journal Articles

Global Value Chains (GVCs) have been heralded as the ‘new world of trade’, yet they branch far beyond what has traditionally been considered ‘trade’—they interact with and are informed by multiple legal regimes often in ways unrelated to the theoretical and practical bases of those regimes. Building on the 2016 IGLP Manifesto, which sought to place law at the centre of GVC research, the Medellín Manifesto’s aspiration is to establish a research agenda that is specifically focused on international law: one that treats GVCs as amorphous and transnational legal creatures—they are transnational value chains (TVCs); one that recognises that the …

Revisiting Patent Linkage, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Alfred Engelberg’s article of a quarter-century ago, Special Patent Provisions for Pharmaceuticals: Have They Outlived Their Usefulness?, raised a provocative question that retains currency today. The special provisions that Hatch-Waxman established, and Engelberg addressed, have come to be known as patent linkage. Following the principle of linkage, the Food and Drug Administration (FDA) cannot approve generic drugs for marketing if they would infringe a patent.

Hatch-Waxman’s complex patent provisions aspire towards multiple salutary purposes, including encouraging the prompt availability of generic drugs, improving public notice of pharmaceutical patents, and accelerating dispute resolution proceedings. Congress also attempted to ameliorate perceived …

Just Research And Citation, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Contemporary research and citation practices are often unjust. Data cartels like Westlaw and Lexis have parent companies that prioritize profits in ways that threaten immigrants. Even before the Dobbs decision, search engines could be deployed to weaponize data against pregnant people seeking reproductive care. Women and people of color have been legal scholars for more than a century but, as many scholars have observed, colleagues consistently under-cite, mis-cite or appropriate those scholars’ work with minimal recourse. Citation materials are often inaccessible to disabled people, poor people, or the public due to poor design, paywalls, or unpreserved content that falls prey …

Artificial Intelligence And Music Mash-Ups: Monetizing An Opt-In Closed Universe Database To Preserve Royalties And Credit For Composer And Sound Recording Rights Holders, Michael M. Epstein

Marquette Law Review

This Article charts the development of an opt-in database of music publishing and sound recording catalogues that would allow music industry stakeholders to profit from those who use artificial intelligence to generate new creative content from existing intellectual property. The database would be a portal to content that rights holders would consent to include in a library made available to the public. The database could be advertiser-supported, allowing for no-cost access by the public, or users could pay for a blanket license or per- search fee. Proceeds from the database would be distributed to rights holders based on the content …

Celebrity Trademark Overload: The Rising Issue Of Excessive Registrations And Reverse Confusion, Lola-Marie Pyros

Touro Law Review

Celebrities use trademark law not only to protect their brands, but also to stake claims on a vast range of potential marks through intent to use (“ITU”) applications—often before any real commercial plan exists. This practice allows celebrities to reserve rights ranging from viral catchphrases to their children’s names which crowds the trademark register, delays legitimate filings by smaller businesses, and forces challengers into costly legal battles. A separate but equally troubling issue arises when a celebrity’s brand overshadows a preexisting weaker mark. In “reverse confusion” cases, courts often focus on whether the celebrity acted willfully, ignoring the fact that …

Boden Lecture: Taxation Of Autonomous Artificial Intelligence, Reuven S. Avi-Yonah, Lucas Brasil Salama, Herbert Snitz, W. Robert Thomas

Articles

This Article proposes that tax can be a useful supplement to other measures to regulate Autonomous Artificial Intelligence (AAI) and limit its potential harmful effects. This proposal differs from command-and-control regulation of AAI along the lines of European Union legislation that may unduly limit the development of AAI. It also differs from existing proposals to tax AAI to generate revenue to help workers displaced by AAI programs, or to tax the data used by AAI The proposal is based on granting AAI programs like ChatGPT separate legal personhood, like corporate personhood, while incentivizing or requiring their corporate owner to place …

Perception Pending: What Do Patents Signal To Consumers?, Alexander Billy, Neel Sukhatme

Articles

Patent law encourages inventors to label their products as “patented,” to mark their legal status and potentially secure monetary damages from infringing competitors. We examine whether such labels might have a separate and direct impact on consumers, by affecting how they view patented products and influencing what they purchase. We develop and conduct two experiments to isolate the impact of patent status on consumer behavior. In an online randomized experiment, we demonstrate how increasing the salience of patent status heightens consumers' beliefs that products are innovative and well made. We also reveal consumers' surprisingly sophisticated understanding of the patenting process …

Cross-Border Limitations And Exceptions To Copyright: “Powered By Ai.”, Trimble, Marketa

Santa Clara High Technology Law Journal

Businesses and institutions that wish to utilize copyright protected works in multiple countries face a multiplicity of national copyright laws; although national copyright laws have been harmonized in accordance with several international treaties and harmonized even more in the European Union member states by European Union legislation, countries’ copyright laws continue to vary. The multiplicity of national copyright laws raises costs of transnational operations, including for businesses and institutions that rely on limitations and exceptions to copyright (“L&Es”) in multiple countries. For example, AI companies might want to rely on L&Es to train and deploy their AI in multiple countries, …

Level Up Your Legal Knowledge: A Gamer’S Guide To Navigating Copyright Challenges For Video Game Music Covers And Sheet Music Arrangements., Lee, Aliza Jimin

Santa Clara High Technology Law Journal

Video games are a significant part of many people’s lives, offering immersive worlds, memorable experiences, and music that stays with us long after the controller has been put down. Fans and players who love video game music often express their appreciation by creating music covers, arranging sheet music, and performing video game compositions. However, the legal complexities surrounding copyright are not always top of mind for these creators. This paper explores the intersection of copyright law and fan-created video game music, focusing on covers and sheet music arrangements. It outlines how ownership of music in the video game industry is …

The Ai-Copyright Trap, Carys Craig

All Papers

As AI tools proliferate, policy makers are increasingly being called upon to protect creators and the cultural industries from the extractive, exploitative, and even existential threats posed by generative AI. In the haste to act, however, they risk running headlong into the Copyright Trap: the mistaken conviction that copyright law is the best tool to support human creators and culture in our new technological reality, when in fact it is likely to do more harm than good. This is a trap in the sense that it may satisfy the wants of a small group of powerful stakeholders, but it will …

Dividing Trademark Use, Jeremy N. Sheff

Faculty Publications

The trademark law of the United States places special emphasis on whether and how a trademark is used in commerce. But over the long history of the Lanham Act—including some less-than-careful drafting by Congress and some aggressive acts of interpretation by the federal courts—the concept of “use” has become complicated and in many ways confused. Two recent Supreme Court cases—Jack Daniel’s Properties, Inc. v. VIP Products LLC and Abitron Austria GmbH v. Hetronic International, Inc.—reflect and in some ways exacerbate that confusion. But the opinions in these cases also expose an interesting property of “use” in trademark law …

Regenerating Justice: Chatgpt And The Legal Minefield Of Generative Ai, Katie Szilagyi

Canadian Journal of Law and Technology

This paper adopts an automation bias lens to cast doubt on the growing claims that GenAI is a transformational tool for legal industry. In this context, automation bias refers to the well-known psychological phenomenon in which human decision-makers unwittingly defer to automated processes, flowing from overreliance on the accuracy of the automation. Even well-meaning individuals aiming to keep a “human-in-the-loop” of any automated decision can fall prey to this well-documented phenomenon, trusting the technology more than it deserves to be trusted. Champions for current GenAI technologies often do acknowledge limitations within the existing landscape of tools, like GenAI’s tendency to …

Ad Astra Per Aspera: Legal Revision Of Space Laws And Intellectual Property To Cultivate Global Alliance And Innovation, Jaiden E. Haggiag

Honors Undergraduate Theses

This thesis explores the inadequate nature of the current legal space regime and points out the gaps in outer space laws, including the following: Jurisdictional Challenges, Frameworks of Liability, and IP (Intellectual Property) Enforcement, utilizing laws such as the Outer Space Treaty (OST), the Liability Convention, the Registration Convention, the Moon Agreement, the Patent Cooperation Treaty (PCT), and TRIPS, along with national laws like the U.S. Commercial Space Launch Competitiveness Act and The Inventions in Outer Space Act (35 U.S.C. § 105.). Through analysis of current scholarly proposals and treaty evolution and synthesize to provide policy options, the goal of …

Intellectual Property—Copyright Law—Ai Is “Actual Imitation:” An Argument On Why Generative Ai Should Not Be Allowed To Learn From Copyrighted Materials Without Authorization, Tj Stotts

University of Arkansas at Little Rock Law Review

No abstract provided.