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.
In October 2011, an online marketplace for reselling pre-owned digital music emerged. The founders of this online marketplace aptly named it ReDigi. In January 2012, ReDigi was promptly sued by Capitol Records for copyright infringement. Despite reassurances from ReDigi that its software required users to delete copies of the music before being allowed to sell it to another user, the court did not consider that safeguard relevant. The court found that the copyright holder’s reproduction right was being infringed regardless. This paper examines the intersection of the law and science in copyright law. Specifically, it presents a technical way of looking at the reproduction right by explaining how digital files are stored in data storage devices and transferred over the Internet by electromagnetic signals. Ultimately, this elucidation undermines the reasoning used by the court to reach its conclusion. While ReDigi modified its software implementation to skirt any further reproduction right problems, this paper suggests ReDigi should not have had to be so obedient.
John Koegel, attorney and founder of the law firm The Koegel Group LLP, and Barton Beebe, John M. Desmarais Professor of Intellectual Property Law at NYU School of Law, discuss past and present trends in the application of IP law to the world of art and artists.
The de facto steward of U.S. patent law is the United States Court of Appeals for the Federal Circuit, which is the exclusive appellate venue for patent cases. As the perceived importance of the patent system has steadily increased since the court’s formation in 1982, the Federal Circuit’s performance has been closely followed by an ever-expanding group of practitioners, academics, and other interested observers, who have not been shy about pointing out the court’s deficiencies. Common complaints about the Federal Circuit’s case law and the quality of its decision-making include: panel-dependency, formalism, indeterminacy, and the over- or under-enforcement of certain doctrines. The academic literature offers a variety of proposals for remedying or compensating for the Federal Circuit’s perceived shortcomings, such as having specialized patent trial judges, expanding the number of circuit courts that hear patent appeals, and modifying the Federal Circuit’s jurisdiction. Compared to existing proposals, this Article takes a different approach to analyzing the Federal Circuit’s problems by focusing primarily on the judges themselves and their adjudicatory environment. Lessons from cognitive psychology, management science, and the literature on judicial behavior suggest that many of the complaints about the court are potentially grounded in, or at least aggravated by, the expertise developed by the judges and the internal dynamics of the court, which may adversely affect the Federal Circuit’s ability to reconsider its precedents in a timely manner. This Article explores how the Federal Circuit, in its current form, may have difficulty self-correcting, and proposes that a solution may lie in staffing the Federal Circuit with only district judges who serve staggered terms of limited duration.
3-D Printing Your Way down the Garden Path: 3-D Printers, the Copyrightization of Patents, and a Method for Manufacturers to Avoid the Entertainment Industry’s Fate
What happens when a home user can scan and print a physical item, or download plans to print a physical item from the Internet, as easily as he or she can rip and share a song or movie? With home 3-D printers on the horizon, the question will begin to ring louder. Manufacturers of tangible goods should heed lessons learned about infringement of music, movies and books when these 3-D printers arrive in homes across the country. A key lesson learned from peer-to-peer file sharing of digital content is that once a technological monopoly (being the only one who can efficiently produce an item) on a protected item falls, the legal monopoly of intellectual property law is insufficient to protect property rights. Once efficient and inexpensive 3-D printers arrive, businesses can (1) shift to a market or bifurcated model in pricing goods, (2) seek to persuade people not to misuse intellectual property for moral reasons, (3) seek to use the judicial and legislative systems to (temporarily) slow sharing of protected designs, or (4) fade away. This article argues that the third solution (using the courts and legislatures to protect the legal monopoly once the technological monopoly is lost) sets a price on violations while removing any moral disincentive, and that only a combination of the first two methods—moral persuasion and market model pricing—will in fact protect tangible goods manufacturers from catastrophic losses.
Every company strives for a unique and memorable website. There is a growing threat, however, that this valuable investment in website design will be copied by competitors without effective legal remedy and with potentially devastating consequences. The “look and feel” of a website – the immediate impression that makes a website recognizable, easy to use, and deserving of consumer trust – is not adequately protected by copyright, trademark, or any other intellectual property doctrine. Website look and feel protection falls into a chasm between copyright on one hand and trade dress on the other, neither of which adequately addresses this modern problem. While copyright protects fixed texts, it cannot offer the scope and fluidity of protection needed to capture the look and feel of entire websites. Trade dress falls short because existing law does not adequately address the blend of form and function essential to website protection. This article proposes the adoption of a multi-factor test adapted from trade dress law in order to secure more effective protection for websites and clarify that trade dress is the proper doctrinal home of “look and feel” protection.