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Brief of Copyright Scholars as Amici Curiae in Support of the Petitioner
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Working paper
Content Moderation in an Age of Extremes
In: Case Western Reserve Journal of Law, Technology & the Internet, Vol. 10, No. 1, 2019
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Fixing Incontestability: The Next Frontier?
In: Boston University journal of Science and Technology Law, Forthcoming
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The First Amendment Walks into a Bar: Trademark Registration and Free Speech
In: Notre Dame Law Review, Forthcoming
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Content, Purpose, or Both?
Most debates about the proper meaning of "transformativeness" in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright's broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn't broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners' authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative "purpose" is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay.
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What's the Harm of Trademark Infringement?
In: Akron Law Review, Band 49, Heft 3
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A Mask that Eats into the Face: Images and the Right of Publicity
In: Columbia Journal of Law & the Arts, Band 38, S. 1-47
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'I'm a Lawyer, Not an Ethnographer, Jim': Textual Poachers and fair use
In: The Journal of Fandom Studies, Band 2, Heft 1, S. 21-30
ISSN: 2046-6692
Abstract
Henry Jenkins' Textual Poachers (1992) remains an important text for many reasons. I will focus on its importance as a text that, while not in any way lacking in complexity, clearly and accessibly brings forth the positive aspects of fandom cultures and creativity. This is vital for very practical reasons: there are many institutions and copyright owners who believe that fandom should be owned – by them, and not by fans. In this context, Jenkins' arguments form a key part of the case for continued, robust fair use doctrines that allow fans to make the things that they love to make.
A Mask that Eats into the Face: Images and the Right of Publicity
In: https://doi.org/10.7916/D87943WQ
In their eagerness to reward celebrities for the power of their "images," and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as are applied to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual and audiovisual media, particularly comics and video games. These problems show up both in First Amendment defenses and in copyright preemption analysis. The possible arguments one might offer for treating images differently are insufficient to justify this disparity. The Article concludes that, absent the distortion produced by images, the right of publicity would properly be understood as sharply limited.
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Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children
In: Notre Dame Law Review, Band 86, Heft 5, S. 2133
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Fighting Freestyle: The First Amendment, Fairness, and Corporate Reputation
There are three distinct groups who might want to engage in speech about commercial entities or to constrain those commercial entities from making particular claims of their own. Competitors may sue each other for false advertising, consumers may sue businesses, and government regulators may impose requirements on what businesses must and may not say. In this context, this Article will evaluate a facially persuasive but ultimately misguided claim about corporate speech: that because consumers regularly get to say nasty things about corporations under the lax standards governing defamation of public figures, corporations must be free to make factual claims subject only to defamation-type restrictions on intentionally false statements. The premise that this would further equality ignores the overall structure of advertising law, in which consumers cannot be equated to advertisers, competitors are already on equal footing with one another, and the government as regulator is not supposed to be on equal footing with anyone.
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Copy this Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It
In: Yale Law Journal, Band 114, S. 535
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Trademark Law as Commercial Speech Regulation
In: South Carolina Law Review, Band 58, S. 737-756
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