Intellectual Property Law Commons^™

Committed To Copyright's Constitutional Role, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Who is Pam Samuelson? She is many things to many people: scholar, teacher, mentor, leader, advocate, and friend, to name a few. One could easily add “force of nature” to the list. This Article suggests adding the term “loyalist” to argue that an important through-line in Pam’s work has been an unwavering commitment to understanding and promoting copyright law’s ability to serve its purpose in our constitutional order.

Patient Access To At-Home Health Care Device Data Toward A Legal Framework, Charles Duan, Christopher J. Morten

Contributions to Books

No abstract provided.

Tools Do Not Create: Human Authorship In The Use Of Generative Artificial Intelligence, Michael D. Murray

Journal of Law, Technology, & the Internet

Artistic tools, from brushes to complex algorithms, don’t create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are “created” by the AI in the copyright sense of the word. Not so.

The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the …

Copyright Infringement In The Use Of Copyrighted Material By Generative Artificial Intelligence Programs, Kristin Lee

Honors Undergraduate Theses

The importance of protecting artistic works and promoting the creation of new works has been well established since the inception of United States Constitution. Copyright protections were created by Congress to grant authors exclusive rights over how their works are used and any violation of these rights is copyright infringement. This paper outlines why the use of copyrighted material to train generative artificial intelligence (A.I.) systems is an infringement upon the rights of the author and not an exception under fair use. While no court decisions have been rendered on this legal issue, this paper utilizes previous court decisions in …

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 …

Dance Like Everyone Is Watching: Why Tiktok Choreography And Copyright Aren't In Sync, Roseanne Planker

Cardozo Arts & Entertainment Law Journal

The note argues that viral dances on platforms like TikTok should not be protected under the U.S. Copyright Act due to their ephemeral nature, social functionality, and the incompatibility of copyright's exclusivity with the viral dissemination process. It advocates for statutory reforms to ensure fair compensation and attribution for creators, proposing that platforms like TikTok be held accountable for these protections, similar to the EU's Copyright Directive. The analysis emphasizes the need for new legal frameworks to address the unique challenges of viral choreography, balancing artistic progress and creator rights.

Tackling The Thicket: A Comparative Analysis Of Biologic Drugs And Biosimilars In The United States And Abroad, Lauren Cutler

Cardozo International & Comparative Law Review

The note examines the legal and regulatory landscape surrounding biologic drugs and biosimilars in the United States and Europe, focusing on patent protections, litigation trends, and the impact of biosimilar competition on drug pricing. It highlights the challenges posed by patent thickets and evergreening strategies employed by brand-name biologic manufacturers, which delay biosimilar market entry and maintain high drug prices. The analysis underscores the differences in regulatory frameworks and market dynamics between the U.S. and Europe, emphasizing the need for policy reforms to enhance competition and affordability in the biologic market.

(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.

For The Love Of The Game: Examining The Legality Of Unofficial Fan Video Game Remakes, Madeleine Higgs

Cardozo Arts & Entertainment Law Journal

The note explores the legal challenges faced by creators of fan remakes of delisted video games under the Digital Millennium Copyright Act (DMCA) and proposes potential solutions to address these issues. It argues that expanding exemptions for such works and adopting a statutory licensing regime could provide a legal framework that balances the rights of copyright holders with the creative interests of fan creators. The analysis emphasizes the need for reforms to prevent overly broad enforcement of copyright protections and to incentivize fair use considerations.

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 …

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 2: Trademark Law, Stacey Dogan, Christine Haight Farley, Jessica Silbey, Rebecca Tushnet, Felix Wu

Cardozo Arts & Entertainment Law Journal

No abstract provided.

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 …

Trademark Fair Use Is No Joke, Christine Haight Farley

Cardozo Arts & Entertainment Law Journal

The article critiques the Supreme Court's decision in Jack Daniel's Properties v. VIP Products, arguing that the Court missed an opportunity to clarify the relationship between trademark law and the First Amendment. While the Court acknowledged the importance of protecting parodies, it failed to develop a comprehensive framework for balancing trademark rights with free speech. Instead, it introduced a narrow rule that limits the application of the Rogers test, potentially undermining speech protections in trademark disputes. The article contends that the Court's reliance on the likelihood of confusion test is insufficient to address the broader First Amendment implications of …

Impossibility Of Artificial Inventors, Mateusz Blaszczyk

Scholarly Works

Recently, the United Kingdom Supreme Court decided that only natural persons can be considered inventors. A year before, the United States Court of Appeals for the Federal Circuit issued a similar decision. In fact, so have many of the courts all over the world. This Article analyzes these decisions, argues that the courts got it right, and finds that artificial inventorship is at odds with patent law doctrine, theory, and philosophy. This Article challenges the intellectual property (IP) post-humanists, exposing the analytical and normative perils of their argumentation, and recommends against getting rid of the nominally central place of humans …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Unveiling The Dark Side Of Innovation: Sustainability, Cobalt Mining, And Modern-Day Slavery, Kaitlin Schleich

SMU Science and Technology Law Review

As the need and demand for sustainability come to the forefront of innovative efforts by technology companies, the use of rechargeable batteries has only become more prominent. A critical mineral in the manufacture of such batteries is cobalt. Looking deeper into how manufacturers get their hands on cobalt exposes the troubling cobalt-mining practices largely taking place within the Democratic Republic of Congo (DRC). This article dives into the underbelly of the cobalt-mining industry, revealing the egregious human-rights abuses occurring in the DRC and examining the current legal and ethical landscape surrounding cobalt mining around the world. In both small-scale artisanal …

A Tale Of Two Sams: Effective Altruism’S Threat To The Security Of Emerging Technology, Mackenzie Young

SMU Science and Technology Law Review

Since the onset of scientific innovation, the character and charisma of the inventors and scientists behind emerging technologies have been a centerpiece of focus. However, in light of the driving forces behind innovation—especially the global need to “get ahead” of competitors—few are willing to inquire into the sincerity of held belief. From the ouster of Sam Altman as CEO of OpenAI to the criminal conviction of cryptocurrency mogul Sam Bankman-Fried, the philosophy of “effective altruism” has taken over the minds, hearts, and pocketbooks of Silicon Valley.

This Comment evaluates the origins of the Effective Altruism movement and argues that its …

Administration For Community Living (Acl) Response To The Office Of Science And Technology Policy Memo, 2022: Public Access Plan (January 2024)

Copyright, Fair Use, Scholarly Communication, etc.

ACL response to OSTP memo, 2022: Public Access Plan (January 2024)

Open Access And U. S. Federal Information Policy, Eric Harbeson

Copyright, Fair Use, Scholarly Communication, etc.

Federal agencies are directed, as a matter of United States Federal policy, to provide free, immediate public access to peer-reviewed scholarly publications that are produced with support from Federal research grant funding. Because copyright vests in the author of the work, agencies must have permission from the author in order to provide that access. A government-wide regulation, in place since 1976, constitutes one possible source for the needed permission. The “Federal Purpose License” provides that, as a condition of Federal funding, grant recipients issue the granting agency a non-exclusive license to use all works subject to copyright and either developed …