Tag: Copyright Law

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.

by Yonatan She­fa*

In the con­text of fair use, should courts fac­tor moral harms into their analy­ses? In this Con­tri­bu­tion, Yonatan She­fa (’19) chal­lenges the applic­a­bil­i­ty – in the con­text of fair use – of a recent line of research by legal aca­d­e­mics who argue that copy­right law should grant artists a degree of pro­tec­tion against moral harms since those pro­tec­tions bet­ter incen­tivize cre­ation. This Con­tri­bu­tion ulti­mate­ly argues that courts must not con­sid­er moral harms in the fair use scheme absent such a direc­tive by Con­gress, and that Con­gress would be ill-advised to effect such a change to the law.

by Jonathan Wieder*

Should the Copy­right Office be able to vet copy­right appli­ca­tions before any action for copy­right infringe­ment is insti­tut­ed? This term, in the upcom­ing case Fourth Estate, the Supreme Court will con­sid­er whether “reg­is­tra­tion” with­in the mean­ing of the Unit­ed States Copy­right Act mere­ly mean that the com­po­nents of the appli­ca­tion need to be sub­mit­ted to the Copy­right Office (the “appli­ca­tion” approach) or that the Copy­right Office has affir­ma­tive­ly approved or refused the appli­ca­tion (the “reg­is­tra­tion” approach). In this Con­tri­bu­tion, Jonathan Wieder (’19) dis­cuss­es the tex­tu­al and leg­isla­tive ori­gins and con­se­quences of each approach and the dif­fer­ing cir­cuit inter­pre­ta­tions that led to the grant of cer­tio­rari in Fourth Estate. Ulti­mate­ly, this Con­tri­bu­tion argues that the reg­is­tra­tion approach bet­ter effec­tu­ates con­gres­sion­al pol­i­cy of vest­ing the Copy­right Office with dis­cre­tion over copy­righta­bil­i­ty and bal­anc­ing pro­tec­tions for all par­ties to a copy­right dispute.

by Ari Lip­sitz*

How should courts address the con­tra­dic­tion between the pre­emp­tion rules for pre-1972 record­ings in the Copy­right Act and the safe har­bors in the Dig­i­tal Mil­len­ni­um Copy­right Act? In this Con­tri­bu­tion, Ari Lip­sitz (’18) ana­lyzes the statu­to­ry con­flict between these pro­vi­sions and exam­ines how courts have dealt with issues under these statutes. Ulti­mate­ly, this Con­tri­bu­tion dis­cuss­es the poten­tial effects of the Sec­ond Circuit’s deci­sion in Capi­tol Records v. Vimeo and pro­pos­es leg­isla­tive reform and judi­cial inter­pre­ta­tions to pro­tect inter­net pol­i­cy and copy­right law.

by Mol­ly Bal­ti­more*

Does the fair use doc­trine apply to online search results that dis­play excerpts from copy­right­ed mate­ri­als? Mol­ly Bal­ti­more (’17) address­es this ques­tion based on her expe­ri­ence at the Car­do­zo BMI Moot Court Com­pe­ti­tion held in March 2016, and con­cludes that it should be answered in the affir­ma­tive. The fair use doc­trine allows sec­ondary users to copy or repro­duce oth­er authors’ works with­out being liable for copy­right infringe­ment in cer­tain instances. Ulti­mate­ly, the Con­tri­bu­tion argues that, under an expan­sive read­ing of the fair use doc­trine, search­able online data­bas­es that mere­ly con­vey infor­ma­tion about a copy­right­ed work can do so in a trans­for­ma­tive man­ner, and with­out caus­ing real eco­nom­ic harm.

by Aaron Lichter*

Is the test for copy­right infringe­ment nec­es­sar­i­ly vague and ad hoc, as Judge Learned Hand once said, or can the test be made rig­or­ous? Based on his expe­ri­ence in the 2016 Car­do­zo BMI Moot Court Com­pe­ti­tion, Aaron Lichter (’17) explores this ques­tion by dis­cussing the var­i­ous copy­right infringe­ment tests that courts use to deter­mine lia­bil­i­ty. Specif­i­cal­ly, the “total con­cept and feel” test assess­es copy­right infringe­ment based on con­tex­tu­al, abstract con­cepts rather than spe­cif­ic details such as plot ele­ments or char­ac­ters. The Con­tri­bu­tion con­cludes that, despite its ambi­gu­i­ty, the “total con­cept and feel” test pro­vides pro­tec­tions that out­weigh poten­tial prob­lems with its vagueness.