Copyright

The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right

The Most Fascinating Kind of Art: Fashion Design Protection as a Moral Right

In recent years, politicians, academics, and industry professionals have argued vehemently that copyright protection should extend to cover fashion designs, which are currently excluded under the “useful articles” doctrine. Copyright in the United States is built on economic principles and aims to incentivize innovation. After reviewing the legislative history and other arguments made by proponents of fashion copyright, a different picture emerges: supporters of fashion copyright view fashion as “art” and feel a sense of harm when it is cheaply or slavishly copied. Even if designers feel no economic harm from the copying of their creations, they are morally harmed by it. Perhaps then moral rights law, not copyright, provides the appropriate theoretical framework in which to analyze the extension of further protections to fashion design.

Work as Weapon, Author as Target: Why Parodies That Target Authors (Not Just Their Works) Should Be Fair Uses

Work as Weapon, Author as Target: Why Parodies That Target Authors (Not Just Their Works) Should Be Fair Uses

In April 2011, comedic musician “Weird Al” Yankovic sought Lady Gaga’s permission to release his song “Perform This Way,” a spoof on Lady Gaga’s “Born This Way” that parodied the artist herself, rather than the original work. But did he even need Gaga’s permission to borrow from her hit song? Courts have only recently begun to consider whether to treat these “author parodies” more like traditional parodies, satires, or something else entirely. The Supreme Court and the circuit courts have yet to address the issue, and the few district courts that have weighed in have propounded opposite holdings. Given the prevalence of author parodies such as “Perform This Way” in popular culture, how the law eventually decides to view these distinctive works will have significant implications for authors and appropriators alike. This article presents both an economic and legal argument for privileging author parodies in a fashion similar to parodies of a work.

Choking the Channel of Public Information: Re-Examination of an Eighteenth-Century Warning about Copyright and Free Speech

Choking the Channel of Public Information: Re-Examination of an Eighteenth-Century Warning about Copyright and Free Speech

The U.S. Supreme Court in Eldred v. Ashcroft gave First Amendment importance to the topic of copyright history. In measuring whether Congress has altered the “traditional contours” of copyright such that First Amendment scrutiny must be applied, federal courts—including the Supreme Court in its 2011 Term case Golan v. Holder—must carefully examine the intertwined history of copyright and freedom of the press. The famous but misunderstood case of Donaldson v. Beckett in the British House of Lords in 1774 is an important piece of this history. In Donaldson, several lawyers, litigants, judges, and lords recognized the danger posed by copyright to untrammeled public communication. Eighteenth-century newspaper accounts shed new light on the free press implications of this important period in copyright law history.

Ideas and the Public Domain: Revisiting INS v. AP in the Internet Age

Ideas and the Public Domain: Revisiting INS v. AP in the Internet Age

The integration of the Internet into all aspects of society has led to the quick and widespread distribution of information in digital form. This digital information can be easily aggregated and redistributed by third parties. Such information aggregators can free ride on the work of others. For example, Google News collects links to news stories from other news outlets. Blogs, Facebook, Twitter and other social media also enable redistribution of news stories and other information. Newspapers, wire services and other news creators and providers have voiced concern that such free riding allows aggregators to benefit from the work of enterprises that create news media without having to pay any of the costs to obtain such news stories. It has been asserted that free riding is unfair and that it can economically injure or destroy such enterprises. These concerns are reminiscent of the 1918 Supreme Court decision in International News Service v. Associated Press, in which a news organization successfully enjoined a competitor from free riding on its efforts to obtain news stories. The underlying basis for the Court’s decision was a federal common law action for misappropriation. Although a subsequent Supreme Court decision negated federal common law some states adopted the misappropriation doctrine from International News Service under state unfair competition law. This doctrine has been asserted with limited success but courts continue to hold that the doctrine is viable under appropriate facts. This Article will critically examine the International News Service decision and subsequent judicial decisions relying on the misappropriation doctrine. It will argue that International News Service has been misunderstood and misapplied; and, that courts should unequivocally repudiate the doctrine as inconsistent with property law. Additionally, the commonly asserted rationales for the doctrine—preventing free riding and ruinous competition—are not legitimate. Instead, any common law action to protect ideas or information should only succeed, if at all, under existing contract and tort causes of action.

What Are the Constitutional Limits on Awards of Statutory Damages?

Music piracy is a major problem in this country, robbing the economy of billions each year. Andrew Berger argues that, if piracy is to end, large verdicts of the kind awarded in Sony BMG Music Entertainment et al. v. Tenenbaum may be necessary. In Tenenbaum, the first file sharing case ever to reach an appellate court following trial, the court held that the jury’s statutory damages award violated the Due Process Clause, even though the award was within the statutory range set by Congress. Berger discusses the ways in which this decision could negatively impact copyright enforcement for years to come.

Substantial Disparity: Copyright Chaos in the Second Circuit

The test for substantial similarity is a doctrinal mess.  In response, recent commentators have called for the inclusion of expert testimony at this stage of an infringement analysis.  Graham Ballou, however, argues that judicial latitude in the framing of the inquiry is more responsible for jury confusion than a lack of expert witnesses.  After surveying three years of summary judgment opinions on substantial similarity from district courts in the Second Circuit, Ballou concludes that copyright law should discourage summary judgment on and de novo review of substantial similarity, therefore re-empowering the jury on the inherently subjective question of improper appropriation.

Foreign Formats – Licensing Optional?: Why ABC’s “Bombshell” Memo regarding Foreign Formats Isn’t Scandalous at All

On June 24, 2008, ABC Executive Vice President Howard Davine wrote a memo to ABC’s executive producers and show-runners which suggested that there may be no need to license a foreign television show when all that is being taken from the show is the “underlying premise.”Alexandra Schwartz argues that there is, in fact, no difference between the decisions to license a U.S. format and a foreign format. While Mr. Davine’s memo may be provocative, Schwartz concludes that it reaches a sensible legal solution. Simply put, show-runners and executive producers need not contract and pay for every concept they produce as a result of seeing or hearing about a foreign TV show, movie, or book.

Girl Talk, Fair Use, and Three Hundred Twenty-Two Reasons for Copyright Reform

The music of the artist known as Girl Talk consists of hundreds of pre-existing samples taken without permission from popular songs. As Girl Talk becomes more prominent, lawyers, journalists and bloggers have entered the debate regarding whether the use of pre-existing samples from copyrighted works is a “fair use” as defined in the U.S. Copyright Act of 1976.Brian Pearl analyzes the merits of the “fair use” argument in light of sparse and largely unsympathetic case law regarding music sampling and ultimately concludes that Girl Talk’s use of pre-existing samples fails to qualify as a “fair use.” The Article further proposes an amendment to the Copyright Act that would enable Girl Talk to record legally while fairly compensating the owners of the sampled works.

Mixed Signals: Takedown but Don’t Filter? A Case for Constructive Authorization

Scribd, a social publishing website, is being sued for copyright infringement for allowing the uploading of infringing works, and also for using the works themselves to filter for copyrighted work upon receipt of a takedown notice. While Scribd has a possible fair use defense, given the transformative function of the filtering use, Victoria Elman and Cindy Abramson argue that such filtration systems ought not to constitute infringement, as long as the sole purpose is to prevent infringement.