Prof. Jane C. Ginsburg, Columbia University School of Law* June 29, 2016 Courts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article's utilitarian function. Varsity Brands, Inc. v. Star Athletica, LLC, 799 [...]

Dean Rodney A. Smolla, Delaware Law School, Widener University June 24, 2016 Louis Vuitton can’t take a joke.  That was the view of Judge Jesse Furman of the United States District Court for the Southern District of New York in a decision earlier this year involving a trademark and copyright infringement action brought by Louis [...]

Prof. Jane C. Ginsburg, Columbia University School of Law* May 30, 2016 Photographers, graphic designers, and photo agencies have expressed dismay over the systematic stripping of copyright management information (CMI), including author identification, from images uploaded to social media platforms.  Sometimes downstream users remove author identification, often unwittingly, as detailed in this recent blogpost by [...]

Dean Rodney A. Smolla, Delaware Law School, Widener University May 24, 2016 The U.S. District Court for the Northern District of Georgia, in a decision by Judge Leigh Martin May, recently issued an order allowing a copyright infringement case brought on behalf of 54 Sudanese refuges against the makers of the film “The Good Lie.”1 [...]

Dean Rodney A. Smolla, Delaware Law School, Widener University February 29, 2016 The U.S. Court of Appeals for the Ninth Circuit recently decided a major right-of-publicity case with important implications for creative works based on real events.  The case, arising from the film “The Hurt Locker,” was Sarver v. Chartier.1  Mark Boal, a journalist working [...]

Prof. Randal C. Picker, University of Chicago Law School February 10, 2016 For roughly the last two years, I have been taking improv classes, first at Chicago’s legendary Second City and more recently at iO (equally well-known in the comedy community but probably less well-known to the general public; iO used to be known as [...]

Prof. Jane C. Ginsburg, Columbia University School of Law* January 25, 2016 The 1980s brought us market failure fair use analysis.1  Will the 20-teens bring us security failure fair use analysis, particularly in cases of mass digitization?  Regarding market failure, Professors Wendy Gordon, Rob Merges, and many others have shown that the absence of manageable [...]

Dean Rodney A. Smolla, Delaware Law School, Widener University December 28, 2015 As I and other contributors to IP Viewpoints have written in numerous essays over the last year, two fascinating cases have been wending their way through the federal courts testing whether the federal government may deny or cancel trademark registration to racially or [...]

Prof. Jane C. Ginsburg, Columbia University School of Law* November 24, 2015 In this time of prospective copyright reform, some have called for revising copyright law to make a showing of commercial harm an obligatory element of the plaintiff’s infringement case.1  The result: Even were an author’s work copied or communicated to the public, she [...]

Prof. Jane C. Ginsburg, Columbia University School of Law* October 19, 2015 A for-profit corporation scans millions of in-copyright books and permanently stores their full contents in its database, all without seeking permission or paying the books’ authors or publishers.  Over 10 years ago, when Google began its massive digitization and storage program, with the [...]