admin – Page 2

Volume 5

Spring, 2015

Academic Scholarship from 2014 Leveraging Creativity Conference

In this volume, we are pleased to publish scholarship from the academic speakers who presented at the 2014 Leveraging Creativity: Artists, Entrepreneurship, and Intellectual Property Law produced by the Indiana Arts Commission and the Center for Intellectual Property Research at the Indiana University Maurer School of Law. Additional support was provided by Indiana University’s New Frontiers in the Arts & Humanities Program, the Indiana University Jacobs School of Music, the National Endowment for the Arts and Meitus Gelbert Rose LLP.

MASTHEAD

Editor-in-Chief
Emily Storm-Smith

Editorial Team
Deepa Balavijayan (Emory School of Law)
Rian C. Dawson
Chelsey McCory
Benjamin R. Holt
Peter M. Nacsa
Freddie D. Ordonez (Emory School of Law)
Scott A. Skiles
Utena C. Yang (Emory School of Law)

CONTENTS

Are the Courts Singing a Different Tune When it Comes to Music?: What Ever Happened to Fair Use in Music Sampling Cases? by Michael B. Landau, Georgia State University College of Law
Are We Serious About Performers’ Rights? by Mary LaFrance, William S. Boyd School of Law, University of Nevada, Las Vegas
Commentary: Revisiting the Derivative Works Exception of the Copyright Act Thirty Years After Mills Music By Robert Meitus, IU Maurer School of Law (Bloomington)
Copyright and Cross-Cultural Borrowing: Indo-Western Musical Encounters by Arpan Banerjee
Kamil Kubik: The Artist and Copyright Observed by Elizabeth Townsend Gard, Tulane University of Louisiana & Yvette J. Liebesman, Saint Louis University
Living Gardens, Living Art, Living Tradition by Roberta R. Kwall, DePaul University College of Law
No Comment: Will Cariou v. Prince Alter Copyright Judges’ Taste in Art? by Christine Haight Farley, American University Washington College of Law
Pre-1972 Sound Recordings: Why Does the Law Treat Them Differently? by June M. Besek
The Protection of Performers Under U.S. Law in Comparative Perspective by Daniel Gervais, Vanderbilt University Law School

Volume 4

Summer, 2014

In this volume, we are pleased to feature works on a range of intellectual property issues from Innovation in the biomedical industry to copyright liabilitiy. Professor Lisa Larrimore of Stanford Law School explains the Cultural Cognition of Patents, Professor Kylie Pappalardo from the Queensland University of Technology provides an Australian perspective on the Duty and Control of Intermediary Copyright Liability, and Professor W. Nicholson Price II from the University of New Hampshire School of Law writes about Innovation and Quality in Drug Manufacturing.

MASTHEAD

Editor-in-Chief
Francesca Cardillo (Indiana)

Editorial Team
Deepa Balavijayan (Emory)
Jim Crook (Emory)
Kevin Domanico (Indiana)
EJ Henricks (Indiana)
Karen Jhurani (Emory)
Kassandra Officer (Indiana)
Emily Storm-Smith (Indiana)
Tammy Tanner (Emory)
Anna Wortham (Indiana)
Rian Dawson (Indiana)

CONTENTS

Cultural Cognition of Patents By Lisa Larrimore Ouellette, Stanford Law School from Volume 4, Issue 1 (Summer, 2014) Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository. Abstract: Simply making empirical progress is not always enough to influence policy, as demonstrated by the polarized public discourse over issues ranging from climate change to gun control. The current discourse ...
Duty and Control in Intermediary Copyright Liability: An Australian Perspective By Kylie Pappalardo, Queensland University of Technology from Volume 4, Issue 1 (Summer, 2014) Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository. Abstract: In the internet age, copyright owners are increasingly looking to online intermediaries to take steps to prevent copyright infringement. Sometimes these intermediaries are closely tied to the acts of infringement; ...
Generic Entry Jujitsu: Innovation and Quality in Drug Manufacturing By W. Nicholson Price II, University of New Hampshire School of Law from Volume 4, Issue 1 (Summer, 2014) Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository. Abstract: The manufacturing side of the pharmaceutical industry has been neglected in innovation theory and policy, with the unfortunate result of stagnant manufacturing techniques ...

The Granting Clause and Intellectual Property Rights Management in Open-Source Software Licensing

by Vikrant N. Vasudeva, George Washington University (Washington, D.C.)

from Volume 3, Issue 2 (Spring 2013)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

The Expansion of Trademark Rights in Europe

by Irina Pak, BPP Law School, U.K.

from Volume 3, Issue 2 (Spring 2013)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: This Essay will argue that trademarks in the European Union (EU) presently enjoy sufficient protection and that further expansion of the proprietor’s rights may adversely affect the consumer. The European Court of Justice (ECJ) has played a major role in expanding trademark protection: it gave a wide interpretation to the meaning of ‘use’ under Article 5(1)(a) of the EU Trademarks Directive and accepted that the mark’s owner is entitled to protection of the investment per se in L’Oréal SA v. Bellure NV (the L’Oréal case). Hence, recognizing other functions of marks and granting them legal protection creates the danger of shifting protection away from consumers

Why Copyright Falls Behind the Requirement for Protecting Graphic User Interfaces: Case Studies on Limitations of Copyright Protection for GUIs in China

by Ling Jin & Yihong Ying (Rouse, Shanghai, China)

from Volume 3, Issue 1 (Fall 2012)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: In this paper, the author specifically addresses the copyright protection afforded GUIs in China and discusses why copyright protection alone fails to fully protect GUIs, supported by case law.

Volume 3, Issue 2

Spring, 2013

In this issue, scholars and practitioners from across the world present on a variety of issues, including trademark law, design protection, and open-source licensing. Dr. Vikrant Vasudeva discusses open-source software licensing and intellectual property rights. Irina Pak of the BPP Law School in the U.K. presents an essay on the evolution of European trademark rights. Professor Estelle Derclaye of the University of Nottingham, U.K., discusses design rights decisions and the future of design rights in the U.K. Professor Alexandra Roberts of the University of New Hampshire in Concord examines the effect of trademark law on the name change of educational institutions. Professor Sarah Burstein of the University of Oklahoma College of Law examines copyright protection of designs. Professor Jason Rantanen of the University of Iowa College of Law presents a discussion on inequitable conduct in patent suits. Camilla Hrdy of Berkeley Law considers in discussion state patent regimes as an alternative for inventors who disagree with the current patent system in the United States. Dean Timothy Holbrook of Emory University School of Law examines the interest of the Supreme Court in patent law.

MASTHEAD

Editor-in-Chief
Jason M. S. Goodman

Editorial Team
Natalie C. Jones
Alex F. Lewis
Jennifer M. Fujawa
Francesa M. Cardillo
Kassandra M. Officer
Kevin E. Domanico

CONTENTS

A Decade of Registered and Unregistered Design Rights Decisions in the UK: What Conclusions Can We Draw for the Future of Both Types of Rights? by Estelle Derclaye, University of Notthingham, U.K.
Dissenting State Patent Regimes by Camilla A. Hrdy, Berkeley Law
Explaining the Supreme Court’s Interest in Patent Law by Timothy R. Holbrook, Emory University School of Law
Goodwill U: School Name Change & Trademark Law by Alexandra J. Roberts, University of New Hampshire (Concord)
Not (Necessarily) Narrower: Rethinking the Relative Scope of Copyright Protection for Designs by Sarah Burstein, University of Oklahoma (Norman Campus)
Recalibrating Our Empirical Understanding of Inequitable Conduct by Jason Rantanen, University of Iowa College of Law
The Expansion of Trademark Rights in Europe by Irina Pak, BPP Law School, U.K.
The Granting Clause and Intellectual Property Rights Management in Open-Source Software Licensing by Vikrant N. Vasudeva, George Washington University (Washington, D.C.)

Volume 3, Issue 1

Fall, 2012

In this issue, a variety of scholarship and insight is presented by both academic scholars and practitioners from across the world. Horacio Gutiérrez of Microsoft discusses the evolution of industrial design protection in consideration of virtual and technological advancements in an essay. Blake Hartz of Woodard, Emhardt, Moriarty, McNett & Henry LLP presents an examination of the dissenting opinions penned by Judge Newman of the Federal Circuit. Andrew T. Langford, Maurer School of Law Class of 2013, describes parallels between contract interpretation and claim construction in the Federal Circuit. Xinbo Li, University of Illinois Urbana-Champaign Law School Class of 2011, LLM, presents a discussion on protection of fashion design in the intellectual property realm. Ling Jin and Yihong Ying of Rouse’s China Technology Group discuss the limitations of graphic user interface protection in China.

MASTHEAD

Editor-in-Chief
Jason M. S. Goodman

Editorial Team
Natalie C. Jones
Alex F. Lewis
Jennifer M. Fujawa
Francesa M. Cardillo
Kassandra M. Officer
Kevin E. Domanico

CONTENTS

Essay: “Advancing with the Times: Industrial Design Protection in the Era of Virtual Migration” by Horacio E. Gutiérrez, Microsoft
IP Protection of Fashion Design: To Be or Not To Be, That is the Question by Xinbo Li, University of Illinois (Urbana-Champaign)
Let’s Talk About Text: Contracts, Claims, and Judicial Philosophy at the Federal Circuit by Andrew T. Langford, Indiana University Maurer School of Law (Bloomington)
Newman, J., Dissenting: Another Vision of the Federal Circuit by Blake R. Hartz, Woodard, Emhardt, Moriarty, McNett & Henry LLP (Indianapolis, IN)
Why Copyright Falls Behind the Requirement for Protecting Graphic User Interfaces: Case Studies on Limitations of Copyright Protection for GUIs in China by Ling Jin & Yihong Ying (Rouse, Shanghai, China)

Volume 2, Issue 2

Winter, 2012

This volume includes scholarship from across the globe. From the United States, we present the work of Professor Jamie Lund, Saint Mary’s University School of Law; Professor Jonathan Stroud, American University Washington College of Law; and Professor Elizabeth Hayes, Texas Wesleyan School of Law. We are also proud to present scholarship from Professor Carl Mair from the University of Leiden (the Netherlands) and Professor Nicola Searle from the University of Abertay Dundee (Scotland, UK).

MASTHEAD

Editorial Team
Editor: Blake R. Hartz
Editor: Ariel Y. Bublick
Editor: Juna Q. Summerton
Editor: Jason M. S. Goodman
Editor: Chuck A. Meeker

CONTENTS

A Thousand Tiny Pieces: The Federal Circuit’s Fractured Myriad Ruling, Lessons to be Learned, and the Way Forward by Jonathan R. K. Stroud, American University Washington College of Law
Openness, Intellectual Property and Standardization in the European ICT Sector by Carl Mair, University of Leiden, The Netherlands
The Criminalization of the Theft of Trade Secrets: An Analysis of the Economic Espionage Act by Nicola Searle, University of Abertay Dundee, Scotland, UK
The End of Forgetting and “Administrative Rights” to Our Online Personas by Jamie R. Lund, Saint Mary’s University School of Law
Vernor V. Autodesk: Power to the . . . Producers? by Elizabeth Hayes, Texas Wesleyan School of Law

Volume 2, Issue 1

Winter, 2012

In this volume, we are pleased to publish scholarship from Christopher Holman on the impact of gene patents on whole genome sequencing.

MASTHEAD

Editorial Team
Editor: Blake R. Hartz
Editor: Ariel Y. Bublick
Editor: Juna Q. Summerton
Editor: Jason M. S. Goodman
Editor: Chuck A. Meeker

CONTENTS

Will Gene Patents Impede Whole Genome Sequencing?: Deconstructing the Myth that 20% of the Human Genome Is Patented by Christopher M. Holman, University of Missouri-Kansas City

The Protection of Performers Under U.S. Law in Comparative Perspective

by Daniel Gervais, Vanderbilt University Law School

from Volume 5, Issue 1 (Spring 2015)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract: The majority opinion of the Ninth Circuit panel in Garcia v. Google, Inc. stands for the proposition that an actor has copyright in her performance. The case was described as horrific and generated a significant amount of traffic on listservs and social media.

In the opinion, Chief Judge Kozinski made three key points. First, that there was originality in the performance, as required under Feist. The Feist court found that creative choices were necessary to generate sufficient originality to warrant copyright protection. Using Feist as backdrop, the Garcia majority found that:

An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., . . . . That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all.

Second, Chief Justice Kozinski found that a performance could be a derivative work of the script, noting that an unauthorized derivative received no copyright protection.

Third, he dismissed what might seem like a Coasean argument on the impossibly high transaction costs if a thicket of copyrights were recognized in film because:

As the above discussion makes clear, any analysis of the rights that might attach to the numerous creative contributions that make up a film can quickly become entangled in an impenetrable thicket of copyright. But it rarely comes to that because copyright interests in the vast majority of films are covered by contract, the work for hire doctrine or implied licenses.

The dissent also makes interesting points, in particular in drawing a clear distinction between a performance and a work in a copyright context—a distinction which, the dissent opines, is solidly anchored in the text of the statute:

Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance oract it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. . . . An acting performance resembles the “procedure” or “process” by which “an original work” is performed. . . . Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.

Wherever this case ends up in the courts, it raises fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.