This spring, JIPEL is proud to present our readers with five cutting edge pieces. From ongoing litigation challenging our intellectual property laws, to cutting edge technology doing the same, our Spring Edition covers both the forefront of the law and the forefront of human innovation challenging. In what follows, you will find a pieces that combine scrupulous legal reasoning with insightful forward-minded reasoning.

First, Professor Barton Beebe and Professor Jeanne Fromer provide compelling arguments for holding the prohibition on immoral or scandalous remarks unconstitutional. Among their most powerful is an argument that is borne out of an empirical study they conducted on all word marks between 2003 and 2015 to assess the way the United States Patent and Trademark Office was applying the ban. Their study shows that the ban is applied in an arbitrary manner, and they identify numerous examples of word marks rejected as immoral or scandalous for one applicant yet allowed for another. The reader is advised to approach this article with caution, as the authors include the word marks uncensored to demonstrate their argument.

Next, Attorneys Simon J. Frankel and Ethan Forrest provide a practitioner’s review of the Federal Circuit’s decision in Oracle v. Google in March 2018. Their Article marches through the four statutory factors for fair use to meticulously demonstrate how the Federal Circuit departed from prior treatment of software under the doctrine. In doing so, they point out that if other courts adopt the Federal Circuit’s reasoning, it will be nearly impossible for any use of software to qualify as fair use.

Remaining in the world of high-tech, Samantha Fink Hedrick turns the reader’s head towards cutting edge technology and asks how the rise of artificial intelligence will impact copyright law. In particular, she asks whether the use of AI presents a barrier to humans claiming copyright in the outputs and emphatically concludes it should not. Like a human using the preset mode on a camera, a human using AI remains in control of inputs and parameters under which an AI operates. That control is legally sufficient to give rise to a copyright claim.

In our fourth piece this spring, Chloe L. Kaufman takes a look at our freedom of speech in the context of the private employment sector. Through a number of palpable modern examples, she demonstrates how a private employer’s unrestricted power to regulate speech disproportionately effects employees in the entertainment industry. Given the constant broadcast of our lives in the modern era, the private employer’s power is a constant threat against entertainment employee’s ability to speak and convey opinions. That threat cuts starkly against our democratic values.

Finally, James Yang turns the reader to the future in an imaginative piece about the way intellectual property laws will apply to the realms of virtual reality, augmented reality, and location based services. He argues that what laws do exist to analogize from (e.g., cases that considered open world video games) are not well suited to handle this new medium. While the virtual space of the past was firmly separated from reality and the core functions of intellectual property, the virtual space growing up around us is instead aimed at total integration and a blending of realities.

You may view and download a PDF of the complete issue here.

I hope the reader finds these pieces as compelling, thought provoking, and fun to read as they were to edit. As always, thank you for reading.

Sincerely,

Philip Simon
Editor in Chief
NYU Journal of Intellectual Property & Entertainment Law

The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 8 Issue 1 of the Journal. While PDFs of the individual articles may be found accompanying their respective posts, you may view and download a PDF of the complete issue here.

Legal journals are sometimes criticized as disconnected from the real world or labeled sounding chambers for academics. Like many of our favorite publications, our fall issue stands in stark contrast to this characterization. In what follows, you will find four discussions of real, pressing legal issues and practical legal solutions.

First, Professor Charles Tait Graves analyzes a striking disparity between the law of invention assignment contracts and the work for hire doctrine under the Copyright Act. To illustrate the divergence of the two areas of law, Professor Graves provides readers with a comprehensive legal background, a survey of the cases that have considered the conflict, and an enlightening discussion of the policy implications at play when the areas overlap. This article is the first of a three-part series in which Professor Graves calling attention to under-analyzed areas of intellectual property law that impact employee mobility.

Next, Professor Nicholas P. Terry invites readers to consider the future of healthcare given Amazon, Berkshire Hathaway, and JPMorgan Chase & Co.’s recently announced joint venture. Professor Terry begins with a case study of the expressed intentions and the past habits of a key member of the venture, Amazon. He then uses lessons from the case study to project a likely future of the healthcare venture before launching into a discussion of the possibilities of the venture, giving color to what some have hailed as the digital revolution of healthcare. Professor Terry concludes with an important discussion of existing regulatory structures as well as how hybrid healthcare should be regulated in the future.

Diving back into the world of copyright and authorship, Jennifer Yamin provides a critical analysis of how courts have applied the Aalmuhammed joint authorship test in the entertainment industry. Via an analysis of cases using the authorship test applied to screenplays, songs, and music videos, Ms. Yamin demonstrates the shortcomings of using the Aalmuhammed framework as a one-size-fits-all test. Ms. Yamin concludes by providing a starting point for reforming our evaluation of joint authorship.

Finally, Brette Trost reminds readers of the importance of intellectual property law. Using the 2016 Christopher Correa Major League Baseball scandal as a tangible example, Ms. Trost provides a riveting analysis of how the Economic Espionage Act can be used to prevent trade secret theft in professional sports. She further provides a compelling argument for why the Economic Espionage Act (that is, trade secret theft), rather than the Computer Fraud and Abuse Act, is the appropriate avenue for prosecuting behavior such as Correa’s, especially given the fluid nature of the talent pool in major league sports.

I hope that you find this issue both captivating and didactic, yet far from an academic sounding chamber. On behalf of the 2018-2019 JIPEL editorial board, thank you for reading.

Sincerely,

Philip Simon
Editor-in-Chief
NYU Journal of Intellectual Property & Entertainment Law