Truth, Lies, and Copyright

Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the tele-phone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction. This Article is the first to offer a comprehensive analysis of copyright protection of fake facts contained in fake news and other sources. It details the different categories of fake facts we encounter today and courts’ inconsistent protection of fake facts under copyright law. Even though copyright law may technically protect fake facts as original expression fixed in a tangible medium, this Article argues that the public interest in promoting efficiency, fairness, and production of socially valuable works justify treating fake facts as unprotectable facts under copyright law. Specifically, courts should apply copyright law’s factual estoppel doctrine to treat fake facts as unprotectable facts in infringement cases where an author previously held out fake facts as facts, with the intent that the public rely on the fake facts as facts, if the public could believe the fake facts to be true

Editing classic books: a threat to the public domain?

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while copyright in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines instances where editors have claimed copyright in new illustrations or new editions of classic books. More specifically, it considers the potential creation of copyrightable derivative works when editors revise and publish new editions that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure that follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books

Squeeze Blood From Turnip: Abusing Trademark Law\u27s Morality Provision in the TTAB

Trademark law prohibits the registration of trademarks that are immoral or scandalous. This Morality Provision in trademark law has been criticized as being an unconstitutional abridgement of free speech and resulting in inconsistency and other problems at the USPTO examination stage. This essay exposes another problem with the Morality Provision, which is its abuse by third parties in the TTAB. This essay explores why the Morality Provision-and not any other provisions in trademark law-is susceptible to this type of abuse and outlines examples of these abusive cases in the TTAB. These cases show that, in inter partes proceedings in the TTAB, the Morality Provision is often asserted by individuals without any real interest in the proposed trademark, but who instead morally disapprove of the trademark owner or its commercial activities. This type of behavior, where third parties use trademark law and the TTAB to direct their moral outrage at individuals or businesses ofwhich they disapprove, overextends trademark law\u27s jurisprudence, disrupts commerce, and inappropriately drains government resources. Yet as long as the Morality Provision is part of trademark law in the U.S., these cases continue to appear in the TTAB and result in years of contentious and unnecessary litigation. The tendency and ease for the Morality Provision to be abused in this way combined with its potential to violate free speech and its other problems at the USPTO examination stage supports the argument that the Morality Provision is flawed and should be overhauled or removed from trademark law

Creative Destruction: Copyright\u27s Fair Use Doctrine and the Moral Right of Integrity

This Paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor or reputation. Actions that have been found to violate an author’s moral right of integrity include, for instance, altering a mural by painting clothing over nude figures, selling separated panels of a single work of art, and displaying sculptures with holiday ribbons. At the same time, copyright’s fair use doctrine allows follow-on creators to transform original works by altering the original work with new expression, meaning, or message. While the federal Visual Artists Rights Act of 1990 (VARA) includes language explicitly making the right of integrity “[s]object to” copyright’s fair use doctrine under § 107, there have been no decisions in the United States interpreting how the doctrine might apply to a moral right of integrity claim. The lack of case law interpreting how courts might balance an author’s moral right of integrity with the public’s rights to expression is particularly troubling in light of the ongoing discussion to expand moral rights in the United States. If moral rights are to be expanded, most interest or industry-groups and commentators agree that those rights must be subject to fair use. However, without any guidance from courts, and with commentators and legislative history doubting the compatibility of fair use with the right of integrity, how can the United States expand moral rights with the assumption that fair use would provide the proper balance between authors’ rights and the public’s rights? This Paper illustrates different contexts in visual art where a follow-on creator distorts, mutilates, or modifies an author’s work in order to make an artistic, social, or political statement, and how the doctrine of fair use might limit the moral right of integrity in those contexts. It argues that copyright’s fair use doctrine can serve as a limitation on an author’s moral right of integrity and illustrates how the four fair use factors in § 107 may be used to balance the author’s right of integrity with the public’s rights to find fair use where a follow-on creator modifies, distorts, or mutilates an author’s work to transform the work and give the work new meaning

Political Fair Use

During election season, politicians and political campaigns often use pop culture or iconic works, such as viral memes or popular songs, to help convey their political messages—often without authorization from the copyright owners of these works. As politics and politicians become ever more divisive, these unauthorized political uses of copyrighted works can be particularly objectionable to copyright owners. In addition to offending their political or moral inclinations, artists and copyright owners frequently claim that these political uses infringe their copyrights. Politicians and campaigns argue that their right to use copyrighted works for political purposes is protected by the First Amendment and that such political uses are presumptively fair use. This Article examines unauthorized political uses of copyrighted works under copyright law’s fair use doctrine to demonstrate that, in fact, both sides are correct. Through a series of case studies, this Article identifies a pattern in political fair use decisions: in disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under section 107 of the Copyright Act in order to both accommodate the import of political speech and to respect copyright owners’ dignity and rights to control use of their expressive works. Under the courts’ political fair use analysis, one determination—the nature of the original copyrighted work—seems to exert an outsized influence on the determination of all four fair use factors, permitting certain unauthorized political uses of copyrighted works to appear presumptively fair. This contradicts the Supreme Court’s guidance to courts not to subject copyright to independent First Amendment review nor to expand copyright’s fair use doctrine in infringement cases involving political or public figures. It also disregards certain copyright owners’ right to control use of their work but permits other copyright owners the right to curtail infringing behavior that causes no market harm. This Article highlights these concerns and explores the normative implications of political fair use on litigation certainty and predictability, incentives to create political expressive works, and the balance between respecting creators’ dignity and rights to control use of their expressive works with guaranteeing free and open discussion of politicians and political candidates

Food Art: Protecting Food Presentation under U.S. Intellectual Property Law

In 2006, a scandal broke in the culinary world. It was alleged that Robin Wickens, chef at (now closed) Interlude restaurant in Melbourne, Australia, had copied dishes by renowned American chefs Wylie Dufresne, Jose Andres, and Grant Achatz. It is not uncommon for chefs to borrow recipes from other chefs, and there has been a long culture of sharing in the cuisine industry. However, what made Wickens’ actions scandalous was that he had purportedly copied the artistic presentation and plating of other chefs’ dishes, not just their recipes. This Article examines whether chefs can protect the artistic presentation or plating of their dishes under U.S. copyright law, trademark law, or design patent law. The analysis proceeds in three parts: (1) whether artistic food plating could fulfill copyright’s requirement of being an original work of authorship fixed in a tangible medium of expression containing artistic aspects separable from its utilitarian functions; (2) whether artistic food plating could function as protectable trade dress that is nonfunctional and able to acquire secondary meaning; and (3) whether artistic food plating could be protectable as new, original, ornamental, and nonobvious design patent. This Article concludes that a chef may not be able to copyright her artistic food presentation because of copyright law’s fixation and conceptual separability requirements, but—in limited circumstances—a chef may be able to claim trademark protection of a signature dish, or apply for a design patent for her ornamental plating arrangement. Nevertheless, even though chefs may have these options under intellectual property law, they are not guaranteed to prevail in an infringement action, nor would chefs necessarily want to use intellectual property laws to protect their dishes in light of the accepted culture of sharing and borrowing in the cuisine industry

Beware the Slender Man: Intellectual Property and Internet Folklore

Internet folklore is created collaboratively within Internet communities-through memes, blogs, video games, fake news, found footage, creepypastas, art, podcasts, and other digital mediums. The Slender Man mythos is one of the most striking examples of Internet folklore. Slender Man, the tall and faceless monster who preys on children and teenagers, originated on an Internet forum in mid-2009 and quickly went viral, spreading to other forums and platforms online. His creation and development resulted from the collaborative efforts and cultural open-sourcing of many users and online communities; users reused, modified, and shared each other\u27s Slender Man creations, contributing to his development as a crowdsourced monster. This Article uses Slender Man as a case study to examine the online creation and production of Internet folklore and cultural products and to explore how intellectual property law treats these types of collective creations. Specifically, it traces Slender Man\u27s creation, development, and propertization to explore collaborative creation and ownership rights in Internet folklore. Collaborative creation of cultural products is a familiar story. But who owns those works? What happens when those works are propertized? This Article analyzes claims to own Slender Man\u27s character under copyright law and Slender Man\u27s name and image under trademark law, and ultimately argues that even though parties claim to own Slender Man, Slender Man\u27s character, name, and image are in the commons, free for anyone to use in her own expressive works. Claims to own cultural products under intellectual property law, and the subsequent assertions of those claims, cause uncertainty and chill creativity, which ultimately harms the public by depriving it of more creative works

Non-Conventional Copyright: Do New and Atypical Works Deserve Protection?, Enrico Bonadio & Nicola Lucchi eds., Edward Elgar Publishing, 2018, 128-149.

https://scholarship.law.umt.edu/faculty_books/1007/thumbnail.jp

Weaponizing Copyright

Copyright grants authors exclusive rights in their works in order to encourage creation and dissemination of socially valuable works. It permits copyright owners to assert their copyright against violations of those rights when necessary to protect their market exclusivity and economic interests. Increasingly, however, copyright is being used by individuals to achieve other objectives. This Article examines the increasingly widespread phenomenon of individuals using copyright to vindicate noncopyright interests, which this Article refers to as “weaponizing copyright.” In some cases, copyright is weaponized to silence criticism and legitimate speech. In other instances, the objective is to erase facts and make information disappear. Some assertions of copyright are intended to punish or retaliate for some perceived wrongdoing. Other assertions of copyright involve attempts to protect the reputation and dignity of copyright owners. Another objective is to protect privacy in personal and intimate information. In none of these scenarios are copyright owners seeking to protect their legitimate market or economic interests in their copyrighted works, the intended purpose of copyright. Through exploring recent and high-profile instances of copyright weaponization involving Harvey Weinstein and Ronan Farrow, Pepe the Frog and InfoWars, Success Kid and Steve King, Navy SEALS and the Associated Press, PewDiePie, Dr. Drew, the McCloskeys, Netflix Films, Jehovah’s Witnesses, and others, this Article exposes the increasingly widespread practice of copyright weaponization. It explains how copyright became the weapon par excellence for individuals to punish, erase, suppress, protect, and vindicate noncopyright interests, and why individuals choose to weaponize copyright instead of pursuing claims under other laws. It reviews commonly proposed solutions to dealing with copyright weaponization, and examines the drawbacks of each solution. It also challenges the presumption that weaponizing copyright is always harmful and must be discouraged by exploring the power dynamics and blurry lines between weaponization by aggressors to punish, erase, and suppress, and weaponization by the vulnerable to protect, preserve, and defend. Ultimately, this Article attempts to resolve two important questions: whether copy-right should serve to protect some noncopyright interests but not others, and whether there is a fair and just way to manage the increasingly pervasive practice of copyright weaponization

Copyright Silencing

Copyright has been weaponized to suppress speech,1 frustrate competition,2 punish third parties,3 and silence criticism and erase facts.4 This Essay highlights one form of copyright weaponization I call “copyright silencing.” Copyright silencing is a form of copyright weaponization where owners assert copyrights to silence criticism or suppress facts instead of to protect copyright owners’ legitimate interests5 in their works. This Essay identifies recent or notable instances of copyright silencing, examines the harm copyright silencing perpetrates, and explains why it is increasingly difficult to stop the assertion of copyright to silence, suppress, and censor facts, information, and criticism