New Issue of IP Law Review

The latest issue of the Marquette Intellectual Property Law Review is now out in print.  The contents include:

  • Mark Lemley’s Nies Lecture, “Can the Patent Office Be Fixed?”
  • Ysolde Gendreau’s lecture on copyright reform in Canada, “Canada and the Three-Step Test: A Step in Which Direction?”
  • Dalila Hoover’s article, “Coercion Will Not Protect Trademark Owners in China, but an Understanding of China’s Culture Will: A Lesson the United States Has to Learn”
  • Benedetta Ubertazzi’s article, “Intellectual Property Rights and Exclusive (Subject Matter) Jurisdiction: Between Private and Public International Law”
  • Brian Jacobs’ comment on intellectual property as security for financing
  • Colin Shanahan’s comment on the Anti-Counterfeiting Trade Agreement
  • Syvil Shelbourne’s comment on rule of reason patent misuse analysis
  • Nicholas Smith’s comment on Medimmune v. Genentech

Abstracts and links for full-text downloads are here.  Congratulations to the editors for bringing Volume 15 to a successful conclusion!

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Levels of Transformativeness

Brian Frye has an interesting post up over at Concurring Opinions on Friedman v. Guetta, a recent Central District of California copyright case involving an altered photograph of Run-D.M.C. Somewhat like Fairey v. AP, the issues on summary judgement included whether the original photograph was copyrightable and whether Guetta’s use of it was fair. (You can see the original and altered photographs here.)

There’s lots of interesting issues there, but one that caught my eye is one that has been bugging me more and more every time I teach the fair use section of Copyright Law: the seemingly infinite manipulability of the transformativeness inquiry of the first fair use factor. The fair use exception to copyright infringement liability, as defined in the Copyright Act, requires the court to weigh four factors: the purpose and character of the defendant’s use; the nature of the plaintiff’s work; the amount and substantiality of the portion used; and the effect of the use on the potential market for the plaintiff’s work. The first factor—the purpose and character of the use—is typically determined by looking at whether the defendant’s use of the plaintiff’s work was “transformative”—that is, whether the defendant used the plaintiff’s work for some new and different purpose, or whether the defendant’s use merely supplanted the plaintiff’s work.

In resolving the transformativeness issue, much seems to depend on how broadly or narrowly the purposes of the two works are defined, but that categorization is almost never accompanied by any discussion of the proper level of generality. Here’s how Judge Pregerson in Friedman defined the purpose of each work:

Here, Defendant has not offered a transformative alternative use of the Photograph image. Both Plaintiff and Defendant are artists, and the image was used by both in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.

“Works of visual art for public display” is a pretty broad category; almost every photograph for any purpose will fit that description. Surely that can’t be the proper level of generality.

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DeGuire Award Winner Explores Copyright Remedies

Congratulations to 3L Andy Spillane, the winner of this year’s DeGuire Award for best student comment published in the Marquette Intellectual Property Law Review.  Andy’s paper discusses the availability of injunctive relief for copyright violations.  Recently, some courts have abandoned the presumption of irreparable harm that traditionally benefitted copyright plaintiffs seeking injunctive relief.  In the face of this emerging trend, Andy presents a strong case for maintaining the traditional presumption.

Andy’s paper, “The Continuing Vitality of the Presumption of Irreparable Harm in Copyright Cases,” is available here on SSRN.

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