N.Y.U. Proceedings

Exploring New Approaches to Unsettled Legal Questions

Category: Contributions Page 7 of 15

Can an Art Gallerist Own the Copyright in an Art Exhibit? Evaluating the Limiting Principles in the Copyright Act’s Definition of a Collective Work

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On October 18, 2021

In Contributions

by Michael J. Gladstone*

In copyright law, an artist does not sign away the copyright to an artwork simply by allowing the artwork to appear in an art gallery. However, where parties agree in writing that a work is a “work made for hire” and where a work is a “contribution to a collective work,” the commissioning party—and not the artist—is the copyright owner. In this Contribution, Michael Gladstone (’22) argues that in at least one case, an art gallerist could own the copyright in an artist’s work: where the work was specifically commissioned for use in a permanent art installation.

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The Right Against Self-Incrimination in the Digital Age

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On September 20, 2021

In Contributions

by Diego Wright*

Law enforcement agencies are increasingly seeking to compel the disclosure of passwords from the owners of password-protected encrypted devices, such as cell phones. Does the government have the right to compel this disclosure? In this Contribution, Diego Wright (‘22) argues that the Fifth Amendment right against self-incrimination protects an individual from being forced to disclose their passcode when analyzed under the “foregone conclusion” doctrine unless the government can demonstrate they already know the testimonial communications tacit in the act of providing the passcode.

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Inventio Ex Machina: The Patentability of AI Generated Inventions

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On May 18, 2021

In Contributions

by Delon Lier*

Only human beings have been recognized as inventors under the Patent Act. This is largely because patents are only granted to inventors capable of “conception.” Until recently, it was an agreed upon fact that no non-human entities are been capable of performing the mental acts required of conception. However, advancements in artificial intelligence (“AI”) technology have cast serious doubt on this position. Thus, the question has arisen; can an artificial intelligence  be recognized as the inventor of a patent? In this contribution, Delon Lier (‘21) considers whether the USPTO was correct in determining that the Patent Act and Federal Circuit precedent forecloses the possibility of AI entities being recognized as inventors. Ultimately, this contribution argues that while the USPTO was correct to reject inventorship under the text of the Patent Act, it was incorrect in determining that any future AI would fail the Federal Circuit’s legal standard of “conception.”

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Expansion of the Copyright Act: The Inclusion of Art Created In-Part by an Artificial Intelligence Program

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On May 5, 2021

In Contributions

by Naomi Perla*

This Contribution examines whether an artist can claim copyright protection over art they created with the assistance of an artificial intelligence program. Naomi Perla (’21) argues that such works satisfy the “original work of authorship” requirement pursuant to 17 U.S.C. § 102(a), thereby granting copyright protection to the artist. The requirements of both authorship and originality are satisfied due to the artist’s creative choices that are largely reflected in the finished pieces. Moreover, the Copyright Act is meant to expand to include new works of art so that artists are consistently incentivized to create for the benefit of the public.

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One Means One: The “Per Plan” Approach to Section 1129(a)(10)

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On April 28, 2021

In Contributions

by Elaine M. Andersen*

Negotiating a plan of reorganization is the most consequential aspect of a Chapter 11 bankruptcy process for both debtors and creditors. The balance of power in that negotiation process is principally defined by the requirements for voting and plan approval which are laid out in section 1129(a) of the Bankruptcy Code. Courts are divided as to whether, in a case where a class of claims is proposed to be impaired under a joint, multidebtor plan, section 1129(a)(10) of the Bankruptcy Code re-quires acceptance from at least one impaired class of claims of any one debtor (the “per plan” approach) or, alternatively, acceptance from one impaired class of claims of each debtor (the “per debtor” approach). In this Contribution, Elaine Andersen (’21) argues that the “per plan” approach better comports with the text, context, and purpose of the section.

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Voluntary Intoxication Defense to Contracting: Is Summary Judgment Appropriate in the Casino Context?

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On April 21, 2021

In Contributions

by Emily Kaplan*

In this Contribution, Emily Kaplan (’21) addresses the propriety of summary judgment when a casino patron raises a voluntary intoxication defense to contracting. Courts around the country recognize the voluntary intoxication defense in a casino context, which requires the casino patron to prove his and the casino employees’ states of mind. In general, summary judgment is typically not appropriate in cases involving state of mind because whether a party had the requisite state of mind will be a question of fact. This has even more weight in the voluntary intoxication context, where a court will rarely be able to decide as a matter of law whether a casino patron was sufficiently intoxicated to render the patron unable to understand the nature and consequences of his action, or whether the casino knew or had reason to know of that intoxication. Both determinations are required to prevail on a voluntary intoxication defense. Moreover, it would be a poor policy choice to allow casinos to profit off of their overly intoxicated patrons. This article does not address the propriety of allowing a voluntary intoxication defense in the casino context, but as long as the defense is recognized, it cannot be merely illusory; patrons must have the ability to prevail, at least to trial. Therefore, casinos should generally not be able to use summary judgment as a tool to profit off of intoxicated casino patrons.

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Nonce So Fast: Software “Structure” and Algorithmic Specificity in Computer-Implemented Means-plus-Function Patent Claims

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On April 13, 2021

In Contributions

by Zachary Hadd*

Despite decades of Federal Circuit precedent, a clear definiteness rubric for functional patent claims covering software inventions remains evasive. Questions persist on what constitutes sufficient structure to absolve these claims of means-plus-function treatment. The level of algorithmic specificity required to ensure definiteness for claims that are drafted in means-plus-function form is similarly abstruse. In this Contribution, Zachary Hadd (’21) argues that even software-specific “structure” is best interpreted under the means-plus-function framework and that according definiteness to anything less than step-by-step algorithmic de-tail is not only unjustified, but ultimately inconsistent with Federal Circuit precedent.

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Dismantling Crimmigration: Why No One Should Be Deported for a “Crime Involving Moral Turpitude”

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On March 29, 2021

In Contributions

by Kameron Johnston*

Crimmigration is the intersection of immigration law and criminal law. At this intersection, officials are widening the net of deportable offenses at an alarming rate to make immigrants more susceptible to removal. The “crime involving moral turpitude” provision of the Immigration and Nationality Act has been one means by which officials have arbitrarily expanded the reasons why a person may be deported out of the United States. But is the moral turpitude provision in 8 U.S.C. § 1227(a)(2)(A)(i) of the Immigration and Nationality Act—used to justify deporting “criminal aliens,” including lawful permanent residents—void for vagueness pursuant to the Fifth Amendment? In this Contribution, Kameron Johnston (’21) argues that the recent Supreme Court decisions Johnson v. United States and Sessions v. Dimaya require that the exacting vagueness test used in criminal contexts be applied to immigration law as well. Finally, this Contribution demonstrates that the moral turpitude provision has provoked unpredictability and judicial confusion that simply cannot be reconciled with the fair notice and enforcement standards that due process demands.

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How the Heeding Presumption Protects (And Does Not Hurt) Consumers in Strict Liability Failure-to-Warn Suits

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On March 9, 2021

In Contributions

by Jessica Christy*

Failure-to-warn claims in products liability suits face special problems in proving causation. Many courts have responded by establishing a rebuttable presumption that a plaintiff would have read and heeded an adequate warning if it had been provided. In this Contribution, Jessica Christy (’21) considers arguments that this “heeding presumption” ultimately undermines the well-being of consumers, and concludes that such concerns are best addressed by rigorously defining “warning defect,” not by abolishing the presumption of causation.

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Fear of Needles or Guilty Conscience? The Fourth Amendment and the Use of BAC Test Refusal Evidence in DUI Prosecutions

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On March 2, 2021

In Contributions

by Max Baumbach*

When a motorist is arrested on suspicion of intoxicated driving, the government cannot compel him to submit to a blood draw without a warrant or warrant exception, nor can it make his refusal to submit to a blood draw a crime. But can the government use the refusal as evidence of guilt in a subsequent DUI prosecution on the basis of an implied consent statute? In this Contribution, Max Baumbach (’21) argues that the Fourth Amendment prohibits the use of blood test refusal evidence in a DUI prosecution where the test itself would have been unlawful to conduct in the first instance.

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