Confronting Imitation: Questioning Fair Use After \u3cem\u3eWarhol\u3c/em\u3e

The Constitution’s Intellectual Property Clause (IP Clause) contains a mandated goal of “progress” for copyright. Efforts to address what progress means move between some understanding it to be a specific Enlightenment-oriented term, progress as a forward-moving, Judeo-Christian ideal, to others viewing the term as strictly economic, understanding the goal of copyright is to get as many different products in the market as possible. Defining what progress means in copyright law is a necessary step, as courts are increasingly considering market forces in granting or denying authorial property rights. This Note addresses what progress means, how imitative art factors in, and ultimately how this understanding of progress affects fair use. It is important to address the state of the fair use analysis to understand how imitative art is currently treated within copyright law. The current approach to fair use analysis employs a broad brush in analyzing the commercial purpose and effect on the market: if the imitative work and the original work on which it is based share the same commercial purpose and operate in the same general marketplace, then fair use might not be found. This approach, however, does not take a more specific, nuanced look at the works involved. It does not favor consideration of how the two works are visually different, for instance, or how the market itself might perceive the two works as serving a different purpose even if they both exist in the same marketplace. This approach to fair use stems from the 2023 case: Andy Warhol Foundation v. Goldsmith. This Note proceeds in three parts. Part I explains standard interpretations of “[p]rogress” in the IP Clause and why these interpretations are insufficient. The interpretations assign a meaning to progress that is better associated with patents and other aspects of the Clause, rendering them inadequate. Part II introduces the intellectual matrix in which the IP Clause developed. It explores how the term “[p]rogress” reflected on a longstanding practice of imitation in the arts and how imitative practice guided English and early colonial copyright law. Part II also notes that understanding progress as integrating imitative art within its scope is not confined to the eighteenth century but rather carried through the nineteenth and twentieth centuries. Part III considers the implications of this version of progress on 17 U.S.C. § 107 and what a fair use analysis might look like with this historical practice in mind. This abstract has been taken from the author\u27s introduction

Mutual Fund Fees

Investors pay billions annually in fees for actively managed mutual funds, despite the availability of far superior, cost-effective alternatives like index funds. Mutual funds, with their unique legal structure, insulate management fees from competitive pressures, thereby enabling fund sponsors to maintain high fees. Contrary to the assumption that legal, regulatory, and governance mechanisms adequately protect investors, this Article demonstrates that such safeguards are largely ineffective. The competitive forces that would ordinarily drive fee reductions are rendered impotent by structural conflicts of interest, ineffective regulatory oversight, and the passive role of independent directors. Fund sponsors capitalize on economies of scale, reaping significant profits as fees remain resistant to market forces. This Article critically examines the failure of the Investment Company Act of 1940, the 1970 amendments, and the judiciary to address these issues, offering new insights into the persistent overcharging of investors and the systemic failures in mutual fund fee regulation. Through a comprehensive analysis, this Article underscores the urgent need for reform in mutual fund governance and regulatory frameworks to ensure that the benefits of scale are passed on to investors

Through the Lens of Natural Selection: Understanding the Development and Adoption of Legal Forms of Business Organization

This Article makes three contributions to the scholarship on the development and adoption of legal forms of business organization (LFBO). First, this Article examines how Charles Darwin’s theory of natural selection (i.e., variation, selection, and inheritance) can provide an overarching framework that can integrate previous theories of LFBO evolution propounded by Hurst, Blair, Hansmann, Kraakman, and Squire. Second, Hurst, Blair, Hansmann, Kraakman, and Squire focused primarily on the evolution of joint stock companies and corporations during the American Industrial Revolution. This Article uses the lens of natural selection to explain the development and adoption of more recent forms of business organization, such as the limited liability company and the benefit corporation. Third, by looking through the lens of natural selection, we can critically examine the profit maximization norm by focusing on selective agents and the traits that they select for. If—as is the conventional wisdom—the purpose of the corporation is to maximize profits to shareholders, then we would expect the dominant selective agent to be the shareholder, and the traits selected for to be those that maximize profit. However, that is not the case. Based on the foregoing, I conclude that the purpose of the corporation is not primarily to maximize profits to shareholders. Instead, the primary purpose of the corporation is to serve as a stable entity that can gather capital (both in terms of financing and human capital) to advance one or more major projects. Put differently, the true purpose of the corporation is to do great things in furtherance of entrepreneurial vision

Crypto-Influencer Liability

The growth of celebrities endorsing cryptocurrencies over the past few years has resulted in many lawsuits and regulatory actions against them. This Article examines some of these recent actions using Google Trends as well as insights from scholarly marketing literature. We suggest that while celebrities can have an influence on the public in terms of searches and interest in cryptocurrencies, such influence is more nuanced. The impact of celebrity endorsements depends on how the public perceives the celebrity both in terms of their fame and their expertise. As such, any legal or regulatory actions will have to account for these nuances when seeking legal redress against celebrities whose endorsements may have been placed on products that ultimately failed or caused losses for those who invested in them

Playing the Hermès Game: Quota Bags, Antitrust Law, and the Limits of Consumer Protection in Luxury Markets

Luxury fashion retail has become a behemoth of an industry. Through acquisitions and strong brand recognition, some brands have developed significant market power in the luxury retail space. Chief among these brands is Hermès, a luxury leather retail boutique known for its highly sought after quota bags, like the Birkin and the Kelly. Quota bags are handbags that can generally only be bought by customers who have developed a substantial purchase history and relationship with the brand. Through this sales model, Hermès has created what plaintiffs have alleged to be an antitrust tying scheme, in which the purchase of one item is tied or conditioned on the purchase of others. Some customers, including plaintiffs in Cavalleri v. Hermès, challenged this practice as unfair and unlawful under federal and state antitrust statutes. On September 17, 2025, the U.S. District Court for the Northern District of California dismissed the plaintiffs’ federal antitrust claims with prejudice, holding that the complaint failed to plausibly allege a relevant product market, market power, or antitrust injury. Though the United States’ legal system may not currently consider Hermès’s sales tactics to be illegal tying schemes, this Note explores precedent in the European Union that could pave the way to stricter enforcement of anti-tying schemes in the United States. Otherwise, the luxury retail market, without strict enforcement, could worsen the already-present signs of a monopoly in the market

Mandatory Cooperation Under International Law

Humanity in the twenty-first century faces serious global challenges and crises, including pandemics, nuclear proliferation, violent extremism, refugee migration, and climate change. None of these calamities can be averted without robust international cooperation. Yet, national leaders often assume that because their states are sovereign under international law, they are free to opt in or out of international cooperation as they see fit. This book challenges conventional wisdom by showing that international law requires states to cooperate with one another to address matters of international concern – even in the absence of treaty-based obligations. Within the past several decades, requirements to cooperate have become firmly embedded in the international legal regimes governing oceans, transboundary rivers, disputed territories, pollution, international security, and human rights, among other topics. Whenever states address matters of common concern, international law requires that they work together as good neighbors for their mutual benefit

The Priesthood in the Evolution of Anglo-American Criminal Procedure

A panel discussion on the priesthood’s role in post-Norman-Conquest factfinding procedures like compurgation, the ordeals, and trial by battle, as well as how the priesthood’s subsequent withdrawal from those roles (under the Fourth Lateran Council) served to shape the development of the jury and modern Anglo-American trial procedure more generally