This Fall 2020 issue – Volume 10, Issue 1 – contains works exploring a multitude of continuing and timely legal issues in intellectual property and our digital world. Notably, they are diverse in both subject matter and research methods.
First, Professor Barton Beebe provides a statistical study evaluating every reported federal court opinion utilizing section 107’s fair use test – a total of 579. His article also serves to update his previous study of the same, published in 2008. Beebe concludes that much has remained the same since his first edition. Specifically, the courts continue to apply section 107’s four factors mechanistically despite collective acknowledgement that the first and fourth serve as the heart of Fair Use analysis. At the same time, Beebe’s data demonstrate a few novel trends in the doctrine’s jurisprudence. For example: The Second Circuit has declined in their interpretative influence and we have seen a rise in summary judgment issuance. You may also see Beebe talk about his work with me on our second episode of The Author Series.
Second, our staff explains its statistical validation methods used for Beebe’s article and pushes for collective standards for validating raw data in legal empirical analysis.
Third, Professor Richard Chused reviews the recent confrontation between Wall Street, Charging Bull, Fearless Girl, and copyright law. Specifically, Chused analyzes the validity of Arthur di Modica’s claim: that he enjoys the legal right to control the physical setting in which Charging Bull is displayed and thus, Fearless Girl’s proximity infringes on his copyright. As an expert in art law, Chused beautifully addresses the issue by referencing historically significant compositional artworks and disputes. I find his comparison of the Charging Bull–Fearless Girl controversy to Pablo Picasso’s conflict with the Francisco Franco-led Spanish government over the location of his seminal work – Guernica (1937) – to be particularly insightful.
Finally, Managing Editor Ashley Ulrich provides a timely and critical analysis addressing whether the current assessment of procompetitive justifications within rule of reason analysis is sufficiently broad and flexible to deal with digital platforms accused of violating antitrust laws. Ulrich concludes that this existing approach – which allows courts to consider the range of ways that digital platform businesses enable market efficiencies – is superior to alternatives proposed by some courts and other legal scholarship.
You may view and download a PDF of the complete issue here.
This issue also marks a decade of publishing for JIPEL. Over this span, we have evolved from a blog of 10 editors to a journal staff of nearly 60. Our works have been discussed on The View, Live with Kelly & Ryan, The Guardian, Billboard, The Miami Herald, and more. This growth is owed to the hard work done by the nine volumes that have come before us. And on behalf of this tenth volume, I promise to continue this tradition of excellence in innovative scholarship.
Thank you for reading.
Zachary J. Bass
NYU Journal of Intellectual Property & Entertainment Law