For many years and still currently, it has been assumed—and even expressly asserted—that it is perfectly permissible to “stack” various legal theories (concurrently or consecutively) to protect nonfunctional “designs” for products. This is despite infrequent but cogent arguments that the available theories, notably design patents and product design trade dress—both of which are based upon federal statutes—are not Constitutionally compatible due to at least the concept of Superfluity. The authors of this article carefully examine the origin, nature, and meaning of these two types of IP protections in the context of their two Constitutional bases—the Patent/Copyright Clause and the Commerce Clause—and conclude that, indeed, “stacked” protections are not Constitutionally permissible; the authors then recommend a workable solution which they dub, the “Kewanee Kompromise.”
In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his return? Will he find the developments in the intervening decades interesting or surprising? What observations would he make had he not been frozen in 1978?
In 2004, Professor Leaffer published an article titled Life after Eldred: The Supreme Court and the Future of Copyright. He wrote about three cases decided in or after 2001 to provide a snapshot of the Supreme Court’s position on copyright issues. This Article discusses three reflections on this theme. The first reflection flows directly from Google. It discusses fair use in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, as well as text and data mining for artificial intelligence uses. This Article then reflects on Arnstein v. Porter’s lessons for modern copyright infringement law. Finally, it reflects on the current state of software protection at the intersection of patent and copyright law in light of Alice Corp. Pty. v. CLS Bank Int’l.
When Congress first added sound recordings to
the Copyright Act, it acted prospectively only: sound recordings fixed on or
after February 15, 1972, received federal statutory copyright protection, while
sound recordings fixed before February 15, 1972, were left to the vagaries of
state law. This historic inequity was corrected in 2018 with enactment of the
Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is
similar, but not identical, to federal copyright protection. But there is a
subset of pre-1972 sound recordings that already had federal copyright
protection before the CPA was enacted: namely, sound recordings of foreign
origin that were granted copyright under the umbrella of copyright
“restoration” in the Uruguay Round Amendments Act of 1994. This raises an
obvious question that Congress did not expressly address: is the new sui generis protection provided by the
CPA a substitute for the existing copyright protection that such foreign sound
recordings already enjoyed, or is it supplemental to the existing copyright
protection that such foreign sound recordings already enjoyed, or does it
simply not apply to such foreign sound recordings at all? This article examines
the three alternatives and concludes that Congressional clarification is
needed. Absent such clarification, it is possible that foreign sound recordings
are simply not covered by the CPA at all, rendering its protections for digital
music providers ineffective and depriving foreign sound recordings of the term
extension provided by the CPA.