Copyright

Un-Blurring Substantial Similarity: Aesthetic Judgments and Romantic Authorship in Music Copyright Law

Un-Blurring Substantial Similarity: Aesthetic Judgments and Romantic Authorship in Music Copyright Law

Music copyright disputes have been in the limelight since long before George Harrison subconsciously ripped off the Chiffons. Yet, with copyright holders becoming ever more litigious, disputes over musical rights are revolving around increasingly narrow claims. While copyright law is meant to only protect the expression of an idea, rather than the idea itself, drawing the line is problematic and too often results in overly expansive definitions of “expression.” Lacking any objective definitions of the terms, determining when an idea becomes expression depends entirely on how one defines “art.” A recent case finding that pop-musicians Robin Thicke and Pharrell Williams infringed Marvin Gaye’s 1970s funk song, “Got to Give It Up,” by copying the amorphously defined “feel” and “sound” of the song, exemplifies the stifling affect our law is having on artists. After examining the evolution of the circuits’ current, and varied copyright infringement tests, this note ultimately suggests a unified and more precise approach that utilizes not only experts who are well-versed in the specific genres of art at issue, but also analytic dissection that carefully considers only protectable elements when determining if works are “substantially similar.”

Interview: The Indigo Book: A Manual of Legal Citation

Interview: The Indigo Book: A Manual of Legal Citation

In this interview, NYU Law Professor Christopher Sprigman discusses his experience conceiving, drafting and producing the Indigo Book, a manual of legal citation that replicates the uniform system of citation expressed by Harvard Law Review’s Bluebook. Formerly known as “Baby Blue,” the Indigo Book is published by Public.Resource.Org under a creative commons license and may be freely modified or distributed without restriction under copyright law. Professor Sprigman details his vision for the Indigo Book, the legal copyright and trademark uncertainties the project faced, and his plans for the citation manual’s future.

Smiley Face
Copyright Symbol
Book
: Emoji as Language and Their Place Outside American Copyright Law

<figure><img src="/wp-content/uploads/2016/04/NYU_JIPEL_Vol-5-No-2_3_Scall_EmojiAsLanguage_Image_Title1.png" alt="Smiley Face" align="left" width="30" height="30" /></figure><figure><img src="/wp-content/uploads/2016/04/NYU_JIPEL_Vol-5-No-2_3_Scall_EmojiAsLanguage_Image_Title2.png" alt="Copyright Symbol" align="left" width="30" height="30" /></figure><figure><img src="/wp-content/uploads/2016/04/NYU_JIPEL_Vol-5-No-2_3_Scall_EmojiAsLanguage_Image_Title3.png" alt="Book" align="left" width="30" height="30" /></figure>: Emoji as Language and Their Place Outside American Copyright Law

As emoji become more ubiquitous in society, users are learning to express themselves through these symbols. Copyright protection of emoji would hamper this growing area of free expression. This note argues that, given the ways in which emoji are used in American culture, they should not receive copyright protection, in order to encourage the use of emoji as an “accessory” to language. Emoji do not readily fit under U.S. copyright protection and their maintenance would be best left to private organizations. This structure would allow people to use emoji freely, in order to develop common meanings for symbols among emoji users and thereby maximize their communicative and expressive functions.

How Rings Fit into the Copyright Scheme: Assessing Their Intrinsic Utilitarian Function

How Rings Fit into the Copyright Scheme: Assessing Their Intrinsic Utilitarian Function

This Note examines how rings fit into the copyright system as sculptural pieces not subject to the separability test under the useful articles doctrine. It focuses exclusive on rings, as they seemingly possess numerous functions; they have been used for mystical purposes, portable bank accounts, and as a signal of socially meaningful codes. Moreover, since jewelry designers consider functional features in the design process, should rings be treated as useful articles? After examining the purposes of the Copyright Act and conversing at length with designers, this Note concludes that rings are more of an art form. Although jewelry designers are limited by a finger’s constraints, they employ a great deal of artistic creativity in expressing a message though the details of a ring.

Somewhere Beyond the ©: Copyright and Web Design

Somewhere Beyond the ©: Copyright and Web Design

This note evaluates the applicability of copyright to web design. Web design affects the appearance and user experience of a website, but excludes content such as the text or images. Web designers have an incentive to standardize websites to ease the learning curve of users who are new to a given website, which is strongly counterbalanced by internal and external pressures to perform creatively. Copyright law has been ambiguously applied to web design. Problems with copyrightability stem from the hurdles to determining what design is original, as well as the exclusion of functional elements. Even if a web design is copyrightable subject matter, successfully proving infringement is difficult. In several contexts where copyright protection might be an issue, this note finds that copyright is unnecessary to resolve disputes. The copyright symbol in the footer of websites can serve as a notice that socially pressures and deters potential copiers, protecting website design and incentivizing innovation, even in the absence of legal certainty.

The Current State of Pre-1972 Sound Recordings: Recent Federal Court Decisions in California and New York against Sirius XM Have Broader Implications than Just Whether Satellite and Internet Radio Stations Must Pay for Pre-1972 Sound Recordings

The Current State of Pre-1972 Sound Recordings: Recent Federal Court Decisions in California and New York against Sirius XM Have Broader Implications than Just Whether Satellite and Internet Radio Stations Must Pay for Pre-1972 Sound Recordings

Federal copyright law applies to sound recordings, but only to those fixed, i.e., produced, on or after February 15, 1972. Recordings produced prior to that date are subject to protection under the laws of the individual states until 2067. A recent spate of lawsuits has raised the issue of whether Sirius XM and Pandora’s digital radio services have the right to play pre-1972 sound recordings without permission from the owners of those records. The article discusses the cataclysmic potential impact that these cases may have on the current landscape of music licensing in New York and California and throughout the United States.

Copyright Law and Its Parody Defense: Multiple Legal Perspectives

Copyright Law and Its Parody Defense: Multiple Legal Perspectives

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

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.

Remixing Transformative Use: A Three-Part Proposal for Reform

Remixing Transformative Use: A Three-Part Proposal for Reform

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.

Media Law and Copyright Implications of Automated Journalism

Media Law and Copyright Implications of Automated Journalism

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.