Remixing Transformative Use: A Three-Part Proposal for Reform By Liz Brown* Download a PDF version of this article here. Introduction I. Cariou’s Impact on Transformative Use and the Art Market A. The Rise and Rise of Appropriation Art B. The Origins of Transformative Use C. The Expansion of Transformative Use in Cariou 1. The District Court’s Ruling 2. The Second Circuit’s Reversal D. The Dubious Trend Toward Expanding Transformative Use II. The Troubling Consequences of Expanding Transformative Use A. The Doctrinal Impact B. The Commercial Impact C. The Societal Impact III. Evaluating Proposed Solutions to the Transformative Use Problem A. Proposed Statutory Amendments Paint With Too Broad a Brush B. Compulsory Licensing for Visual Artists Is Untenable in the United States IV. A Three-step Solution to Reforming Transformative Use in the Visual Arts A. Recognize Appropriation Art as Transformative Use Per Se B. Broaden the Use of Expert Testimony by Art Scholars in Infringement Cases C. Limit Visual Artists’ Derivative Rights to Reproduction Rights Conclusion Continue reading →
Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites By Liz Brown* A pdf version of this article may be downloaded here. Introduction I. Copying Websites’ Look and Feel: A Growing Threat to E-Commerce A. The Nature of Look and Feel Copying B. The Economic Impact of Look and Feel Infringement II. Using Copyright or Trade Dress to Protect Website Look and Feel A. The Ambiguous Nature of Look and Feel Protection B. The Limits of Copyright Law in Protection Look and Feel 1. The Copyright Office May Not Register “Look and Feel” Elements 2. Judicial Use of Copyright Claims in Look and Feel Cases C. The Limits of Trade Dress Law to Protect Website Look and Feel 1. Articulating the Elements of the Alleged Trade Dress 2. Proving Distinctive Trade Dress 3. Secondary Meaning in the Website Context 4. The Difficulty of Proving Non-Functionality 5. Likelihood of Confusion in Look and Feel Cases D. The Threat of Copyright Preemption in Look and Feel Cases E. New Technology Requires a New Framework III. Proposing a Trade Dress-Based Solution for Look and Feel Infringement A. A Multi-Factor Test for Website Look and Feel Infringement 1. Overall Similarity i. Fonts and Formatting ii. Color Scheme iii. Sound Effects and Animation iv. Symbols, Logos and Other Marks v. Layout and Arrangement vi. User Experience Designer Testimony 2. Proximity of Products or Services in the Relevant Market(s) 3. Intentional Copying and Other Fraudulent Measures 4. Likelihood of Confusion 5. Additional Considerations B. Designing an Effective Damages Scheme IV. Additional Issues Conclusion Continue reading →
