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This study investigates how instructors consider resource cost and availability when compiling assignments in their course syllabi. It uses the academic planning model from Lattuca and Stark to frame the influences on instructional material selection. It employs a critical incident technique method, asking instructors to take into account one course syllabus when making assignments. Findings address differences across formats including books, chapters, articles, and video. Findings show differences between disciplines and concerning lack of familiarity with fair use. It concludes that increased consultation with library personnel regarding course books would help provide students with affordable materials in compliance with fair use. [ABSTRACT FROM AUTHOR]

The article discusses the issue of copyright protection for AI-generated content and suggests that alternative dispute resolution tactics may be able to address this issue until the law catches up with rapidly developing technology. It highlights cases where the United States Copyright Office and courts have rejected federal copyright protection for AI-generated artwork, emphasizing the requirement of human authorship for copyright protection. The article argues that protecting AI-generated works does not align with the original purpose of copyright law, which is to incentivize human creativity. It suggests that alternative dispute resolution methods, such as mediation and arbitration, may be more suitable for resolving disputes related to AI-generated content. The article also discusses the benefits of early neutral evaluation in providing business-oriented solutions and the importance of ADR in international copyright disputes. It presents ADR as an efficient and effective solution to fill the gap in copyright law related to AI-generated content. [Extracted from the article]

The Digital Millennium Copyright Act ("DMCA") has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is section 1201. Among other things, section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about section 1201 empirically. While empiricists have assessed parts of the DMCA, they have left section 1201 largely untouched. Our understanding of section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. In this Article, we seek to bolster these anecdotes with greater empirical evidence for ongoing discussions about how section 1201 is performing and whether it needs revising. To do so, we conducted a broad-based search of Westlaw to collect every issued opinion, whether reported or not, where a court purported to apply some part of section 1201. We then reviewed these cases to glean as much information about section 1201 as possible. This review led to a number of important and, in some cases, surprising results. First, section 1201 opinions are a relative rarity. In the nearly quarter of a century since the DMCA's enactment, we could find only a little over 200 opinions, with only about sixty of those being published. The average number of opinions during the DMCA's existence has been around nine annually, which pales in comparison to other types of copyright cases. Second, despite the Second Circuit receiving much attention in anecdotal accounts of section 1201, courts within it issue section 1201 opinions infrequently. The Ninth Circuit is the dominant section 1201 court, both in terms of citations to its opinions and overall number of opinions, and the Sixth and Eleventh Circuits both issue more section 1201 opinions than the Second Circuit. This result stands in contrast to other types of copyright litigation, where the Second Circuit is a behemoth. Third, the most common subject matter in dispute in section 1201 cases is computer software, followed distantly by audiovisual material such as movies. Music stands in last place, showing up in only a couple issued opinions. Debates at the time of the DMCA's enactment were informed by widespread fears of copyright infringement relating to digital music and other types of digital content. Yet section 1201 litigation has resulted in but few written opinions involving those subject matters. Fourth, suits and defaults against individuals happen relatively frequently in the section 1201 context, with courts often assessing large statutory damages against those individuals. As we discuss in this Article, this result raises important equity issues. Fifth, despite section 1201 including a number of statutory exemptions, these exemptions basically never make their way into issued opinions. Fair use, too, only infrequently enters courts' section 1201 discussions. This means, effectively, that the primary way to escape section 1201 liability is through administrative exemptions granted by the Library of Congress on a triennial basis. But as we shall see, this process has significant holes. Finally, plaintiffs disproportionately win section 1201 cases. This result is somewhat bloated because of the frequency of defaults against individuals. Setting these aside, plaintiffs still enjoy tremendous success under section 1201. However, when looking at opinions only outside of the Ninth Circuit, win rates become mostly even. I conclude with several calls for DMCA reform. These include bolstering statutory exemptions and more closely tying section 1201 to copyright infringement. Pursuing these reforms will more faithfully align section 1201 with its purported objectives. [ABSTRACT FROM AUTHOR]

Synchronization (sync) licenses are required for works in which music is synchronized to video and generally have high transaction costs because they must be individually negotiated. Traditionally, sync licenses were obtained by sophisticated parties for movies, television, commercials, and the like. But digital platforms like TikTok have brought sync licenses from obscurity into the hands of every person with a smartphone. This transformative innovation has created new issues for copyright law. First, usergenerated content (UGC) created by individuals and shared on the internet via social media platforms or websites may require sync licenses that are cumbersome to negotiate and overinclusive. Private agreements between platforms like TikTok and record labels and publishers usually fill the gap, allowing most users to play music with their videos free from concern about copyright infringement. However, these licenses do not account for copyright's fundamental balance between access and exclusivity because they are overinclusive: Some content on TikTok may be covered by the doctrine of fair use, in which case no license is required. Fair use is an affirmative defense to copyright infringement that permits the defendant to use the copyrighted work without paying the rightsholder. Second, TikTok's agreements with labels and publishers could be eroding fair use. The ex-post nature of fair use means that risk-averse parties, when confronted by a situation in which the viability of their claim is unclear, are likely to obtain a license not required by law. This in turn can narrow the scope of fair use because the existence of an active licensing market makes it less likely that a court will find a use is fair. Future parties then become less likely to rely on an increasingly dubious fair use defense. In the TikTok context, doctrine about fair use and sync is especially uncertain. The scant precedent in UGC fair use cases appears to be highly fact-dependent, there are few cases that specifically deal with sync rights, and none of those have decided fair use as applied to sync. This Note proposes a blanket, compulsory license for noncommercial UGC sync as an imperfect solution to help correct the balance of copyright in the digital platform era. The compulsory license would return review of public copyright law back to Congress and courts and prevent private ordering from curtailing fair use. Further, valuable creativity would be protected because rightsholders would not be able to withhold permission for use of copyrighted material. [ABSTRACT FROM AUTHOR]

This paper addresses the question of whether generative AI can create copyrightable works by making a comparative analysis between European Union law and U.S. copyright law. First, it is argued that for copyright law it does not seem possible for an entity other than a human being to be the copyright holder, thus ruling out the possibility of generative AI being considered a copyright holder. It is established that in US copyright the door it may be possible to register part of a work made using generative AI, and that in the EU this door remains open and pending evolution, although European jurisprudence already gives some guidelines. Afterwards, this paper explores possible infringement of exploitation rights in the different parts of the training process of generative AI models and in the activities that lead to the generation of content that is like intellectual works. It is concluded that in US law there is a gap in knowledge as to whether fair use would cover these types of activities. In European Law, although there are exceptions such as those in Directive 2001/29, it is not at all clear whether this will be sufficient to cover these activities, or whether the authorization of the rights owner will be necessary. If the latter is true and judging by the wave of lawsuits that have followed against companies and institutions that have made generative AI tools publicly available, it is possible that licensing negotiation may take a central role in the AI industry, with the negative consequences that this may bring for the advancement of science and for the public domain. [ABSTRACT FROM AUTHOR]

The emergence of ChatGPT and other related artificial intelligence systems has posed many questions upon the impact that such tools could have on some jobs, including media workers. Serious legal concerns have arisen regarding the learning practices of AI-related companies such as OpenAI and Google. These concerns involve crawling and extracting presumably unauthorized copyright works from news repositories, whose rightholders are often media companies. In this article, we aim to categorize the newsroom practices and routines affected by artificial intelligence. We also explore copyright-law related issues, including AI-assisted reporting, its impact on journalists and the media workforce, SEO and commercial strategies, as well as training and blocking AI engines. The legal solutions applied to solve those questions are also addressed, including technical solutions, fair use guidelines and legal solutions (litigation, legislative reform, and negotiation). Our conclusion is twofold: first, in the unequal fight against artificial intelligence systems, a utilitarian and entrepreneurial conception of intellectual property is enforced; and second, the position of journalists as authors is weakening. [ABSTRACT FROM AUTHOR]

The article discusses the intersection of generative artificial intelligence (AI) and copyright law, particularly in the context of architectural works. It explores how generative AI technologies are reshaping the creative landscape and the legal challenges they pose in terms of copyright infringement. It is reported that the rise of generative AI has led to a cascade of class actions against AI companies, raising questions about authorship, rights allocation, and fair use.

The article focuses on the intersection of copyright law and generative AI (artificial intelligence), particularly in relation to the concepts of fairness and fair use.

The article focuses on the complex and often contentious relationship between content creators who produce Let's Play videos and the video game developers who own the rights to the games being played. It highlights the challenges creators face due to YouTube's automated Content ID system, which frequently flags and removes videos for alleged copyright violations, and the lack of clear legal guidelines governing the fair use of video game content.

In the midst of the twentieth century, a South African musician and composer named Solomon Linda wrote "Mbube." "Mbube" never prospered to the heights reached by its foreign progeny, "The Lion Sleeps Tonight." Disney accrued millions of dollars capitalizing on Linda's magnum opus, while Linda died a pauper. In the aftermath, the postcolonial Republic of South Africa remains scarred and reminiscent of the abject atrocities of Western encroachment. Thus, when the American-incubated doctrine of fair use, a provision that allows for the usage of copyrighted works for an infinite number of purposes, introduced itself at the doors of the National Assembly of Parliament, it was to no one's surprise that the South African public strongly resisted the doctrine which they feared would expose their works to Western exploitation. As a result, President Ramaphosa reserved the fair use doctrine, and referred the Bill back to parliament for breach of international law and deprivation of the constitutional right of property. This Article examines these two postulations, inter alia, and confutes the omnipresent misconceptions of fair use that have been promulgated throughout South Africa by several competing interest groups. It begins by delving into the history of copyrights in South Africa all the way to the introduction of the fair use doctrine in 2015. The Article then discusses the context revolving around the introduction of fair use, which portrays the numerous perceptions projected by the South African copyright industry, the academic sector, tech companies and conglomerates, the print disabled, and US and European delegates. Those that impugn the doctrine conjecture that it is in breach of the Berne Convention's Three-Step Test, deprives authors of their constitutional right to property, is incongruous with other specific copyright exceptions, and is incoherent and uncertain. This Article proves that these postulations are baseless and stem exogenously from competing copyright industries and alliances to generate a dubiety visà-vis its legal status. This dubiety is devised to repel the proliferation of the fair use doctrine globally, while it remains intact and unimpinged domestically. This Article concludes that South Africa should base its legislative affairs solely on its own interests, impervious to the cynical perspectives of exogenous nations and alliances that could care less about its affluence or the welfare of its people. [ABSTRACT FROM AUTHOR]

Copyright of IDP: Revista de Internet, Derecho y Politica is the property of Universitat Oberta de Catalunya and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This Paper is a reaction to AWE v. Goldsmith (Warhol), which found that Warhol's adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol's use, while the dissent emphasizes the artistically transformative quality of Warhol's adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of thefair use doctrine. That need was largely met by Gordon's article in 1982. I aim to develop the economic theory of fair use further. especially in light of case law since 1982. A theory of fair use is at the same time a theory of the scope of copyright. I clarify the economic basis for jair use, taking advantage of basic concepts in welfare economics. As a general matter, the optimal scope of copyright minimizes the sum of dynamic (having to do with incentives over time) and static (having to do with allocation at a given time) welfare costs. One proposition advanced is that the concepts of economic complementarity, substitutability, and preference correlation provide crucial analytical tools in resolving fair use disputes. This proposition may seem narrow, but it stands the approach taken in the cases on its head. I explain how the approach urged here works ** by applying it to several cases, including Warhol and Google v. Oracle. [ABSTRACT FROM AUTHOR]

This article explores the issue of copyright protection for video games without narratives. The author argues that granting copyright protection to game mechanics and rules may hinder the growth of the video game industry and suggests that patents should be used instead. The article discusses the purpose of intellectual property rights, the principles behind copyright and patent protection, and the potential implications of current copyright law on the video game industry. It also examines the challenges of determining copyrightable elements in video games, the ambiguity surrounding copyright and patent protection, and the use of patents as an alternative to copyrights for games without narratives. The conclusion emphasizes the importance of providing economic incentives to video game developers while avoiding oppressive monopolies. [Extracted from the article]

Moral intuitions regarding when it is "fair" to engage in unauthorized copying or derivation from a copyrighted work may often take into account factors that the fair use statute, 17 U.S.C. § 107, does not enumerate among fair use considerations. This project examines one extralegal factor that may weigh in a moral equation: a contrast in relative status between the copyright owner of the underlying work and the accused infringer. Is it more or less "fair" for a teen to sell unauthorized fanfiction based on their favorite movie or for a movie studio to turn a kid's fiction into a blockbuster movie without permission? A number of scholars have observed that copyright law has the potential to promote social justice or, conversely, to establish or reinforce stubborn social, racial, or economic hierarchies. The fair use doctrine provides an example of this duality: it can allow less privileged speakers to "talk back" to dominant culture, to find voices and audiences, and to forge paths to success; it can also allow more privileged speakers to engage in cultural appropriation and exploitation with impunity. The differences between these scenarios may have more to do with who is on which side of the fair use coin than with any of the doctrinally prescribed fair use factors. This thought experiment considers whether and how the fair use doctrine might better promote progress if it took considerations, such as party resources and cultural market share, into account. [ABSTRACT FROM AUTHOR]

The digital revolution has launched myriad new technologies in the field of art and cultural heritage law, including digital art, NFTs (non-fungible tokens), artificial intelligence (AI)-generated art, virtual reality and reality augmentation, online viewing rooms and auctions, holograms, immersive experiences, and more. As a $67.8 billion industry, the art market is a global driver of innovation, international collaboration, and national economies, given its cross-border transactions. However, given the extremely rapid development of these new technologies, regulators have struggled to keep pace and implement legal measures that are fit for purpose in this field. Limited oversight has resulted in several claims that have the potential to change the legal landscape. For instance, claims over the theft/misappropriation of NFTs and the related fraud and money laundering that may ensue, as well as a recent class action copyright infringement suit against the creators of a popular AI algorithm and infringement claims over immersive installation and light technologies, demonstrate how new ways of thinking are required to assess cases involving digital property (distinguished from other types of non-tangible property). Moreover, the US Supreme Court has issued a landmark ruling on fair use within the copyright context, which will be relied upon in the future to determine whether (and to what extent) the appropriation of existing copyrighted material is permitted. This includes both the digital use of physical artworks and the use of born-digital works. Although jurisprudential decisions are made on a case-by-case basis, factual patterns involving online media, digital art, and related technologies could serve as guidance for legislators and other decision-makers when considering what limits should be imposed on Web 3.0. This article will focus on recent US-based claims and regulations and dovetail with existing art market regulations in this jurisdiction (e.g., anti-money-laundering statutes) to determine their impact on new technologies, whether directly or indirectly. Finally, the article highlights ongoing trends and preoccupations to provide an overview of the shifting legal landscape. [ABSTRACT FROM AUTHOR]

Three copyright doctrines focus more than any others on the contributions of authors to visual artworks: originality, substantial similarity, and fair use. Questions regarding the aesthetics of works of authorship filter into judicial determinations under each of these doctrines. This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense. The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts' ability to properly evaluate whether the use of appropriated material in a second work is justified, or whether expression has been taken from the first work for some other (infringing) purpose, is compromised. If courts fail to properly understand works because they do not fully analyze basic infringement claims, it can also affect later users and owners of artworks. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith illustrates the conflicts appellate courts face when they are forced to analyze cases solely through the lens of fair use. This Article embraces Warhol's majority opinion but suggests that the dissent's concerns about judicial reluctance to engage with and understand creative works aesthetically are not entirely misplaced. Such engagement should happen earlier in the infringement inquiry, however--not merely as part of a fair use analysis. This Article expands the 2022 Meyer Lecture delivered by this Author shortly after oral arguments concluded in the Warhol litigation. It urges that to ensure the best outcomes for all artists, courts should apply a procedurally conscious approach to analyzing copyright infringement cases involving visual artworks. Specifically, district courts should establish a solid record that the first work is original; then inquire whether the second work infringes, applying the test for substantial similarity. Only if they find infringement should courts consider the affirmative defense of fair use. Following the proper procedural path is crucial to balancing all parties' interests--particularly when the works of two artists are involved. Allowing both the first and the second artists equal voice in representing the originality of their contributions is necessary to ensure an adequate factual record in copyright litigation. Courts require this record to anticipate the impact of their rulings on future litigants and the art world at large. These goals are consistent with copyright jurisprudence, which encourages creativity and original contributions to the creative lexicon. [ABSTRACT FROM AUTHOR]

Over the last few years, due largely to breakthroughs in deep learning technologies, artificial intelligence (AI) has begun to step into the shoes of human content generators and make valuable creative works at scale. Before the end of the decade, a significant amount of art, literature, music, software, and web content will likely be created by Al rather than traditional human authors. Yet the law lags behind this technological evolution by prohibiting copyright protection for AI-generated works. The predominant narrative holds that even if AI can automate creativity, this activity is not the right sort of thing to protect, and that protection would even harm human artists. AI-generated works challenge beliefs about human exeeptionalism and the normative foundations of copyright law, which until now have offered something for everyone. Copyright can be about ethics and authors and protecting the sweat of a brow and personality rights. Copyright can also be about the public interest and offering incentives to create and disseminate content. But copyright cannot have it all with AI authors-there is valuable output being generated, but by authors with no interests to protect. This Article argues that American copyright law is, and has traditionally been, primarily about benefiting the public interest rather than benefiting authors directly. As a result, AI-generated works are precisely the sort of thing the system aims to protect. Protection will encourage people to develop and use creative Al which will result in the production and dissemination of new works. Taken further, attributing authorship to Al that functionally does the work of a traditional author will promote transparency, efficient allocations of rights, and even counterintuitively protect human authors. AI-generated works also promise to radically impact other fundamental tenets of copyright law such as infringement, protection of style, and fair use. How the law should respond to AI activity has lessons more broadly for thinking about what rules should apply to people, machines, and other sorts of artificial authors. [ABSTRACT FROM AUTHOR]

The JPAIR Multidisciplinary Research is a peer-reviewed journal that welcomes research articles from scholars around the world. The journal uses Digital Object Identifier (DOI) for each article and is published four times a year. The editorial review process relies on the cooperation of authors and reviewers. The journal has policies in place for retraction of articles, digital preservation, handling complaints, conflicts of interest, publication ethics, and peer review. The double-blind review process is used, and referees are selected based on their expertise in the field. The acceptance or rejection of a manuscript is based on the evaluations of the referees. The journal also accepts comments on previously published articles, and there are technology-based quality assurance measures in place, such as readability tests, plagiarism detection, and appropriate citation formats. Contributors are encouraged to perform word count, spelling, and grammar checks before submission. [Extracted from the article]

This article explores the topic of intellectual property rights for artworks generated by artificial intelligence (AI). It discusses the advancements in AI technology that allow for the creation of art pieces that imitate the styles of famous artists. The article highlights the popularity of AI art technologies among the general public and the challenges that arise in terms of copyright protection. It examines the requirements for copyright protection in the United States, including originality and fixation, and discusses the issue of authorship in relation to AI-generated art. The article also explores how other countries are addressing these issues within their own copyright laws. [Extracted from the article]

Copyright of Critique of Law: Independent Legal Studies / Krytyka Prawa: Niezalezne Studia nad Prawem is the property of Akademia Leona Kozminskiego and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

With its fact-intensive inquiries and limited bright-line rules, copyright law is known for its ambiguity, and courts often differ in their interpretations of various doctrines. The fair use doctrine is no different, and was in fact designed to grant courts discretion in making their determinations, all with the aim of maintaining the true purpose of the copyright law. Recent technologies and popularized forms of art only complicate things, adding rougher terrain to an already confusing landscape. This Comment explores two relatively recent cases that consider the intersection of tattoos, copyrights, and video games, one stemming from the Southern District of New York and the other from the Southern District of Illinois. To properly consider these cases, this Comment first provides a brief overview of copyright law and the fair use doctrine as it is applied to allegedly infringing uses of copyrighted works. Next, this Comment discusses the copyrightability of tattoos as a general matter. After laying this groundwork, this Comment moves to summarize the two cases this Comment is designed to investigate--Solid Oak Sketches and Alexander--before considering which court "got it right." Lastly, this Comment considers available avenues for reaching consensus, or, at the very least, creating some type of predictability, in the hopes of providing authors and users with a consistent understanding of what can be permissibly used and what will constitute infringement. [ABSTRACT FROM AUTHOR]

The article explores copyright enforcement in the U.S., discussing traditional methods like notice and takedown and federal court litigation. It introduces the Copyright Claims Board (CCB) as a new option for resolving smaller disputes. It highlights potential fairness concerns for defendants and suggests solutions such as applying the fair use defense automatically and educating respondents.

Courts cannot predict the future, but their decisions are binding precedent on future generations. Technological changes—that courts could have never predicted— break down this system of stare decisis. What made sense yesterday no longer makes sense today. Leveraging an understanding of technology, the rule of law, and stare decisis, this Note proposes a new approach to copyright fair use decisionmaking that involves utility-expanding technologies, or tools that radically change the use of and access to copyrighted works. When applying past precedent, courts should carefully contextualize prior decisions’ analyses of the first and fourth fair use factors within the precedent’s time and perform a similar analysis for the current case in the current era. The more that the factual circumstances diverge between the two cases, the less weight the court should give to the past precedent. Moreover, when generating precedent on utility-expanding transformative fair uses, courts should narrow their fair use decisions to the dispute before the court and only rule on the specific technology in question—helping ensure that the balance between advancing technological interests and protecting the rights of content creators does not become rooted in shortsighted thinking from a materially different past. [ABSTRACT FROM AUTHOR]

The article focuses on the fair use doctrine in the context of museums using copyrighted works without permission. It specifically analyzes the case of Marano v. Metropolitan Museum of Art, where the museum reproduced a copyrighted photograph on its website without the photographer's permission. It explores the concept of transformative use in fair use analysis and how museums reproduction of works for historical context on different subjects can fall into a gray area of fair use.

Intellectual property (IP) is the legal mechanism that transforms intangible instances into tradeable commodities. While creating the conditions for extraction of value and capital accumulation across all domains of economic and social life, IP law defines at the same time the boundaries of commodification by determining the scope of the public domain. Within this traditional framework, opponents of neo-liberal market expansionism have championed the role of IP doctrines and principles such as fair use, exceptions and limitations. However, new informational capitalism relies primarily on non-IP forms of appropriation and de facto control. To a large extent, commodification of intangibles and capital accumulation is no longer distressed by -- and even benefits from -- traditional public-domain-enhancing IP doctrines. This challenges traditional IP narratives and calls for a new foundation for a truly counter-hegemonic discourse in IP law. [ABSTRACT FROM AUTHOR]

The article explores trademark considerations for nonfungible tokens (NFT). Topics discussed include conflict around the use of NFT, trademark cases involving ethereum and infringement, trademark principles of creative expression under protection of the First Amendment and of fair use, and dilemma in the enforcement of trademark infringement law.

The article focuses on the U.S. Court of Appeals for Ninth Circuit's reversal of a district court decision in McGucken v. Pub Ocean Ltd., highlighting the challenge of analyzing fair use, particularly the impact of transformativeness on the analysis of the other factors. Topics include the Copyright Act's aim to protect artists and scientists, the fair use doctrine's role in safeguarding the interests of secondary creators, and the tension between copyright law's goal of promoting science.

Copyright law provides that when two or more authors create a single work with the intent of merging their contributions into inseparable or interdependent parts of a unitary whole, the authors are considered joint authors. For photographic works, judicial precedent establishes that the creative contributions necessary to support a copyright claim include the author's choices concerning elements such as lighting, pose, garments, background, facial expression, and angle. In many visual works, however, those creative elements are determined not solely by a photographer, but also by the subject, who can sulk or smile, stand with good posture or stoop, and be situated in full light or obfuscated by shadow, among many other options. A subject's rights in photographs have not been fully explored. The Supreme Court avoided deciding the issue more than a century ago. Today, paparazzi and celebrities make high-stakes legal assertions about copyright infringement and fair use through litigation. Certain portrait photographs of an individual person may be works of joint authorship, the co-authors being the photographer and the subject. While it is established across the globe that photographs merit copyright protection, and that the rights in a photograph generally vest in the photographer, it is a mistake to allow the authorial inquiry into every photograph to end there. Copyright law is accustomed to doing the hard work of specific factual analysis; its fair use doctrine requires such scrutiny, and an apportionment of joint authorship should be no different. The construction of joint authorship is legally flexible, at least in the manner that it is codified. This Article proposes making better use of a framework that already exists in US copyright law. No legislative change is necessary, but courts' current interpretation of joint authorship requires recalibration to permit more flexibility. Such a stance will more accurately reflect how creative people work together and will bestow rights more fairly and on creative parties, which will sometimes include photographic subjects. [ABSTRACT FROM AUTHOR]

The article attempts to resolve the three-way circuit court split on the nominative fair use doctrine. Topics discussed are differences in the approaches of the Ninth Circuit, Third Circuit and Second Circuit to the nominative fair use doctrine, relationship between the Lanham Act and the policy rationale involved in resolving the circuit split, nominative fair use doctrine as a necessary defense and as an affirmative defense expanding the freedoms of trademark defendants.

The article argues that Nintendo could not restrict The Big House annual Super Smash Bros. Melee (SSBM) video game tournament series from using the emulator Dolphin and game modification Project Slippi but could restrict them from streaming their tournament on websites under the fair use doctrine of the Copyright Act of 1976. Topics include the history of Nintendo's disputes with SSBM, a background on Dolphin and Slippi, and an explanation of the Copyright Act of 1976 and its fair use doctrine.

Copyright of Artnodes is the property of Universitat Oberta de Catalunya and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright law seeks to encourage creativity and the creation of new works of authorship. To facilitate this creativity, the law allows authors to use portions of preexisting copyrighted materials when the new use survives a "fair use" analysis. In adjudicating the fair use question, courts apply a multifactor test which includes consideration of the new work's market effect. This market effect consideration asks how the new work influences sales of the original copyright materials. The scholarship analyzing this market effect is incomplete because this inquiry requires empirically measuring how consumers react to the third-party reuse of a copyrighted work. Thus, courts and authors are currently ill equipped to accurately forecast ex ante market effects because these empirical determinations occur only after the work has been reused--i.e., ex post to creation of the putative fair use. Building from this recognition, we provide a more robust theoretical framework for categorizing and analyzing market effects. This Article builds from our expanded theory by empirically measuring the effect of reusing copyrighted material in subsequent works. We use a novel experimental design with one type of third-party reuse (music sampling) and find that the market reception of a new work that incorporates copyrighted material can impact perceptions about the original work (and thus, influence the original's market). We find evidence that if the new work is a failure, this in turn has a negative impact on the original work's perception. Accordingly, our study points to a negative spillover effect that may harm perceptions of the underlying copyrighted work. Because this recognition expands the foundation for courts considering a new work's market effect, we argue that these insights are crucial to making efficient and effective fair use determinations. [ABSTRACT FROM AUTHOR]