In the United States, whether a disputed work qualifies as a parody is critical, if not determinative, to the success of a fair use defense in copyright lawsuits. How can different schools of legal thought contribute to copyright law and its fair use doctrine, particularly its contentious parody exception? By drawing upon different legal theories, this article argues that courts, in determining whether new creative works that build upon existing works constitute fair use, should focus heavily on the possible harm that the new works would bring to owners, and the copyright system of financial incentives as compared to their potential social benefits.
Establishing an Indirect Liability System for Digital Copyright Infringement in China: Experience from the United States’ Approach
In order to address the digital revolution that has challenged copyright protection, China has carried out a series of legislative attempts at developing an indirect copyright liability system in recent years. The joint tort oriented, knowledge-centered liability attribution rules and a set of borrowed safe harbor provisions from the United States have set out the rudiments of the indirect copyright liability regime to deal with digital copyright infringements. However, there have been constant debates on the confusing joint tort law underpinnings, the inconsistent knowledge standard and the conflicting nature of safe harbors, which are major factors impeding the effective copyright law enforcement and the efficient operation of the intermediary’s business. Through analyzing current rules in China and the United States, this article finds that compared to the borrow-to-use approach, a more efficient build-to-suit approach for a viable legal transplantation is recommended. To construct an efficient, well-balanced and predictable indirect copyright liability system for dealing with digital copyright infringement in China, this article proposes an independent-tort theory and a culpable conduct based indirect liability system, with modified safe harbor provisions. In this way, a justified and compatible indirect liability system can be optimized through equilibrium among relevant parties.
The concept of “use” in trademark law is fundamental. However, many activities undertaken by a mark owner in connection with the trademark are not relevant uses for the purposes of obtaining and maintaining federal trademark registration. Two recent decisions, Clorox and Gameologist, serve as reminders that there is little statutory guidance on the use requirement under the Lanham Act and that uniformity under the Act is yet to be achieved. In exploring the use requirement under the Lanham Act, this note argues that Congressional amendment to a qualitative bona fide minimal use standard would broaden the use requirement and be the most effective way to better protect all trademark owners.
Restoring Order in European Patent Law: A Proposal for the Reintroduction of the Substantive Patent Provisions of the Unitary Patent Package into EU Law
Europe is on the verge of instituting a uniform patent regime that will change the landscape of patent litigation in twenty-five member countries. The unitary patent package will include a European patent with unitary effect (“unitary patent”) and the creation of a Unified Patent Court (“UPC”). Patentees will no longer have to litigate in each member country; a single litigation will be binding throughout all of the participating countries. This note argues that the EU should not have removed the substantive patent provisions from the UPR and that their removal will have an unintended negative effect for the UPC by looking at the relevant history and structure of the European patent system, the probable consequences of removing the patent provisions, and that the groups opposed to the provisions exaggerated their concerns over the inclusion of the substantive patent provisions in the UPR. The inclusion of the substantive patent provisions in EU law will provide benefits to the European patent community and EU law that outweigh any negative effects.
The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 4 Issue 1 of the Journal. While individual PDFs of articles may be found accompanying their respective posts, you may download a complete PDF of the Issue here.
Recently the Second Circuit held, in Cariou v. Prince, that Prince’s unlicensed appropriation of Patrick Cariou’s photographs, with what many consider to be only minor modifications, was fair use rather than copyright infringement, thus broadening the scope of copyright law’s fair use defense. The Cariou decision resolved issues that are critical to appropriation art, but the Second Circuit’s ruling in that case—final now that the Supreme Court has denied certiorari—has troubling implications for the entire art market. By broadening the definition of “transformative,” the Second Circuit’s decision in Cariou may encourage other appropriation artists to use original images in ways that have never before been considered fair use. Without the revival or reaffirmation of limitations on how one artist can use another’s work, many creative artists—and the businesses that rely on their work—are likely to suffer severe economic loss. After Cariou, one might question who is best suited to evaluate the creativity that the law is designed to foster. In its wake, lawyers, artists, and dealers face growing uncertainty as to what kind of copying is legal. The ruling has led to a new sense of unease, has uncovered a generational shift in the perception of artistic ownership rights, and reflects a dramatic reversal of the roles of artists and judges in evaluating art. In order to preserve the balance between protecting existing works and incentivizing the creation of new ones, in light of recent jurisprudence, this proposal calls for three critical, interdependent changes to copyright law as it applies to visual art.
For a rule to have an optimally positive impact on society, it must be a valid regulation (a rule that comes to be enforceable); just (with an axiological goal); effective and efficient (that can extract a maximum amount of welfare, however understood, for the people it regulates). This article aims to advance the international regulation of patent protection by improving upon the axiological considerations of global regulation, while contributing to its effectiveness and efficiency. It does so by proposing the introduction of proportionality in the TRIPS Agreement, so that each country will contribute to technological development according to its economic capacity. A formula, which renders a politically feasible result, is used to further explain this theory. The chance of conceiving a healthy globalization based on formulas that encourage the cohesion of humanity should not be overlooked. That being reflected, an event of global generosity without precedent in the history of mankind would be witnessed. Hobbes’s theory would be proven wrong, and cohesion of humanity would be globally envisioned. The Achilles heel of the idea presented in this paper is that it maybe utopian; it would not be surprising that once again it is proven that homo homini lupus.
Amicus Brief of the Electronic Frontier Foundation and the ACLU of Virginia in Radiance Foundation, Inc. v. NAACP
Courts have recognized that speech utilizing the names of organizations, celebrities, and trademarked products, to comment on them is constitutionally protected, even when there is a risk of brief confusion about the source of the speech. This brief asserts that the district court, in Radiance Foundation, Inc. v. Nat’l Ass’n for the Advancement of Colored People 25 F.Supp. 3d 865 (E.D. Va. 2014), erred in accepting the NAACP’s trademark infringement and trademark dilution theories. Amici thus asks the Court to reverse and to hold that Radiance should have been granted a declaratory judgment that its posts were not infringing.
Computer-generated journalism is just one type of information that will be disseminated with increasing frequency as similar technologies are adapted to various ends. The popularity of algorithmic reporting will require courts to more fully and definitively articulate a set of first principles for free speech lest they work case-by-case or see a fractal splintering of decisions in the lower courts. This article argues that the relative clarity of copyright’s theoretical underpinnings, in comparison with the more open questions surrounding the First Amendment, offer a more straightforward translation of existing jurisprudence to the new questions presented by automated journalism technology.
Association for Molecular Pathology v. Myriad Genetics, Inc. and Its Impact on the Patentability of “Designer” Genes
With the rapid advances in biotechnology and the widespread availability and popularity of assisted reproductive technologies, biologists may soon have the ability to manipulate human gametes and embryos in order to create children with certain desirable characteristics. Despite the fact that this scientific idea is closer to becoming a reality, the question remains whether such techniques or the altered genetic material itself are eligible for patents. After the Supreme Court’s decision in Association for Molecular Pathology v. Myriad Genetics, Inc., — US. —, 133 S. Ct. 2107 (2013), the court held that isolated DNA was not the proper subject matter for patent under 35 U.S.C. § 101, while holding a patent on synthetic DNA, or “cDNA.” This article argues for a narrow reading of the holding in Myriad Genetics regarding cDNA, which would limit its application to the medical uses and gene therapy.