Intellectual Property Law Commons^™

Much Ado About Nexus: The States Struggle To Impose Sales Tax Obligations On Out-Of-State Sellers Engaged In E-Commerce, Sara Shoenfeld

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Patent Law Is, At Best, Not Worth Keeping, Richard Stallman

Loyola University Chicago Law Journal

No abstract provided.

Crowdfunding: Fleecing The American Masses, Zachary J. Griffin

Journal of Law, Technology, & the Internet

No abstract provided.

Personal Health Information Shared Via Social Networking: The Gap Between Reality And Protection, Madison M. Pool

Journal of Law, Technology, & the Internet

No abstract provided.

A Trademark Justification For Design Patent Rights, Dennis D. Crouch

Faculty Publications

This article presents a new set of empirical results to support the theoretical construct that design patents fill a gap in trade dress law protection. Based on the data, I tentatively reject the oft-stated conventional wisdom that design patents are worthless for many because procurement is too slow, expensive, and difficult. Rather, based on a first-of-its-kind analysis of the prosecution history files of a large sample of recently issued design patents, I conclude that the current design patent examination system operates as a de facto registration system. Notably, more than ninety-eight percent (98%) of the patents in my study were …

Tattoos & Ip Norms, Aaron K. Perzanowski

Faculty Publications

The U.S. tattoo industry generates billions of dollars in annual revenue. Like the music, film, and publishing industries, it derives value from the creation of new, original works of authorship. But unlike rights holders in those more traditional creative industries, tattoo artists rarely assert formal legal rights in disputes over copying or ownership of the works they create. Instead, tattooing is governed by a set of nuanced, overlapping, and occasionally contradictory social norms enforced through informal sanctions. And in contrast to other creative communities that rely on social norms because of the unavailability of formal intellectual property protection, the tattoo …

Rethinking Innovation And Productivity Within The Workplace Amidst Economic Uncertainty, Shlomit Yanisky Ravid

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Lawyer With The Adr Tattoo, Jennifer W. Reynolds

Cardozo Journal of Conflict Resolution

This Article considers whether ADR presents a branding problem for legal professionals and, if so, how those professionals can reclaim the brand in productive, career-affirming ways. Whether one should self-identify as proponent, practitioner, or scholar of alternative practices implicates broad tensions not only around assimilating with integrity into any longstanding change-resistant profession, but also around the shortcomings of the adversarial system and the legitimacy of ADR.

People V. Diaz, Senate Bill 914 And The Fourth Amendment, Caitlin Keane

UC Law SF Communications and Entertainment Journal

After the Diaz decision in January, Senator Mark Leno, a Democrat representing San Francisco, took matters into his own hands and drafted Senate Bill 914. In short, the bill would have overturned the Court's decision and required law enforcement to obtain a search warrant from a neutral magistrate before searching arrestees' portable electronic devices. The bill passed with overwhelming support from both political parties in the State Assembly and State Senate and needed only Governor Brown's signature or tacit approval to become law. Governor Brown vetoed the bill in October 2011, stating, "[t]he courts are better suited to resolve the …

Imposing A Duty In An Online World: Holding The Webhost Liable For Cyberbullying, Elizabeth M. Jaffe

UC Law SF Communications and Entertainment Journal

In light of fettle attempts by state legislatures to subdue the growing cyberbullying epidemic, the time has come to create a civil duty upon those who can control the problem-web hosts and webservers. While the general "foreseeable plaintiff' duty set forth by then-Chief Judge Cardozo in PaIsgraf v. Long Island Railroad Co. has controlled the duty of care owed to the person of another for the last century, Judge Andrews' dissent may hold the key to unlock this new societal problem: "Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten …

Minor Changes: Altering Current Coogan Law To Better Protect Children Working In Entertainment, Danielle Ayalon

UC Law SF Communications and Entertainment Journal

Coogan Law provides statutory authority designating income earned by a minor under an entertainment contract as the minor's property, rather than the property of the minor's parents. These statutes were first enacted in 1939, substantially revised in 2000, and subsequently amended in 2004. But despite these ongoing efforts to provide financial protection, the adverse interests of parents and their children persist. The concern that many child entertainers are not yet adequately protected invites close scrutiny of the law to assess whether changes are still required to assure children in the entertainment business have optimal protection.

This note examines the current …

Stars In Their Eyes: The Dominance Of The Celebrity Brand And Intellectual Property Norms Protection Through Fan Goodwill, Naeha Prakash

UC Law SF Communications and Entertainment Journal

The widespread celebrity culture in today's society has signaled a shift from celebrity product endorsers to celebrity brands. Right of publicity and trademark laws leave a gap that does not adequately protect a brand as a whole. Rather, these laws make a distinction between the celebrity identity and the product, limiting protection of a brand that includes both components. Social norms found in the interaction between celebrities and fans can provide an alternate form of protection that reinforces ownership rights found in pure intellectual property. This article argues that a celebrity brand should foster fan goodwill to build a brand …

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

Scholarly Works

The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

Scholarly Works

Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

The Case Of The Missing Case: Stewart V. Abend And Fair Use Law, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

Three Supreme Court cases dominate fair use: Sony, Harper and Row, and Campbell. One case has gone mysteriously missing. In Stewart v. Abend, the Supreme Court held that it was not fair use for the producers of Alfred Hitchcock’s film "Rear Window" to continue showing the film. Their rights had been terminated in the underlying story, "It Had To Be Murder," by an unanticipated shift in copyright case law. Stewart remains well known in copyright law for its lengthy discussion of a complex issue of copyright renewal, but Stewart’s short, sharp fair use discussion has gone by the wayside. At …

Panel Iii: Politics And The Public In Ip & Info Law Policy Making, Michael J. Burstein, Derek Khanna, Jessica D. Litman, Sherwin Siy, Richard S. Whitt

Other Publications

We have been moving gradually from the theoretical to the practical. Having examined the impact of critical legal studies ("CLS") in the academy and having discussed the intersection between scholarship and activism, we now turn to the nitty-gritty questions of how to actually enact change in intellectual property and information law and policy.

Patent Prudential Standing, Xuan-Thao Nguyen

Articles

This Article is the first to focus on patent prudential standing. Patent prudential standing, a creation of the Federal Circuit, wastes precious resources and serves no sound policy goal. Under patent prudential standing, after many resources have been expended on the merits of a patent infringement case, parties face a reversal of course by the Federal Circuit’s ruling that the plaintiff, typically the exclusive licensee in a patent transaction, lacked standing to bring the case in the first place. Regardless that the plaintiff satisfies constitutional standing, the Federal Circuit propounds that the plaintiff must still meet patent prudential standing. The …

Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said

Articles

Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their examination.

In …

Mandated Disclosure In Literary Hybrid Speech, Zahr K. Said

Articles

This Article, written for the Washington Law Review’s 2013 Symposium, The Disclosure Crisis, argues that hidden sponsorship creates a form of non-actionable influence rather than causing legally cognizable deception that mandatory disclosure can and should cure.

The Article identifies and calls into question three widely held assumptions underpinning much of the regulation of embedded advertising, or hidden sponsorship, in artistic communications. The first assumption is that advertising can be meaningfully discerned and separated from communicative content for the purposes of mandating disclosure, even when such advertising occurs in “hybrid speech.” The second assumption is that the hidden promotional aspects …

The Real Issue Behind Stanford V. Roche: Faulty Conceptions Of University Assignment Policies Stemming From The 1947 Biddle Report, Sean M. O'Connor

Articles

The recent Supreme Court decision in Stanford v. Roche laid bare a faulty assumption of the federal research funding system. Government patent policy for federally funded research relies on "contractors"—the recipients of federal funding—to secure patent assignments from their employees. While this practice was routine for private firms and nonprofit research institutions, it was not for universities. This was in part based on the relationship of faculty and other researchers to universities that differed from industry employment relationships.

The roots of this faulty assumption can be traced to the seminal 1947 Biddle Report. Detailed monographs drafted as appendices to …