Quarterly Journal 48-2 Volume 48, Issue 2 August 2020

Visual Appropriation Art, Transformativeness, and Fungibility

As an intentionally flexible doctrine, fair use in copyright has a long history of ambiguity and criticism. While courts have developed various standards and considerations to give fair use some shape, key decisions have generally done so in the context of textual material. Likewise, the examples in Judge Leval’s seminal work on fair use involve textual material. His argument to assess the first fair use factor based on transformativeness has won the day. But in contrast to the textual examples, interpreting the meaning and transformation of visual works is rife with danger.

Recent appropriation art cases exemplify this danger and demonstrate a significant unbalancing of fair use. Specifically, as they have evolved, appropriation art cases strongly weigh in favor of finding fair use. These cases suggest that transformativeness is improperly used as a nearly dispositive determination, often minimizing the other fair use factors. Second, courts are evaluating the expression, meaning, or message of both visual works when such a determination is inherently even more problematic than interpreting written text, as reinforced by current principles of interpreting contemporary visual art. Further, the latitude created by visual art interpretation opens the door for other, potentially less appropriate factors to influence the transformativeness assessment. Finally, transformativeness itself is only one facet of the first fair use factor and should be balanced by considering the purpose of the original work’s material for the secondary artist.

In many ways, the evolution of these appropriation art cases is the canary in the coalmine—they warn of the potential for overly expansive fair use application across the creative arts spectrum. An unbalancing of fair use undermines the value of copyright rights and could therefore undermine the creation of new creative works. While maintaining flexibility is important, this Article proposes some methods to rebalance fair use in order to appropriately encourage visual art creativity by both copyright holders and those that should be able to claim fair use.

From Adidas to Zenga: A Historical and Comparative Analysis of
International Intellectual Property Law in Fashion

What are the most effective intellectual property models to protect a fashion brand? There is tremendous economic clout attached to a well-established trademark. Who among us does not immediately recognize the golden arches of McDonalds, the clever smile design imbedded in the Amazon

logo, or the unique designs, fonts and colors attached to FedEx, Facebook, Google, or Apple? Some trademarks achieve global status through the sheer power of the corporate brand. Likewise, copyright protection is an essential means of protecting the writings of an author. This is true, not only in music, film and book publishing, but also in the world of fashion where a great deal of status is often associated with names such as Michael Kors, Prada, Gucci, Louis Vuitton, and the like.

While most would agree with the stated purpose and need for intellectual property protection, these laws have jurisdictional borders that are often blurred for two significant reasons: first, trademarks and copyrights—at least those of successful works—are almost always international in their commercial use; and second, extraterritorial treatment of trademarks and copyrights often consists of legal nuances that are as diverse as the many nations in which the products are marketed. This Article will explore the history and differences between the way fashion is treated by trademark and copyright systems in the United States as compared with the treatment of fashion in various global territories. In conjunction with the exploration of the varied international laws and processes, the Article surveys the fashion industry and seeks to reveal the historical, business, cultural, and social reasons for their disparate treatment among the nations.

Trademark Holy Wars: The 2nd Circuit’s Attempt to Genericide God

Trillions of dollars are at stake in protecting religious trademarks. Notable religious markholders in the "faith economy" include Kanye West, Trinity Broadcasting Network, the Episcopal Church, and Intellectual Reserve, Inc., the intellectual property asset management company for the Mormon Church.  Oftentimes, owners of religious trademarks struggle with selecting non-generic marks and protecting existing marks from genericide. A major source of confusion for markholders stems from the circuit court split on how to evaluate religious marks for genericness. The lack of uniformity has created an opportunity for forum-shopping and has produced an inconsistent stream of legal interpretation, which compounds the uncertainty for current and prospective religious markholders. The Second Circuit's decision in Universal Church, Inc. v. Toellner, which resulted in the cancellation of the marks “Universal Church” and “The Universal Church,” further deepens the circuit split. The Second Circuit's decision raises concerns for markholders owning religious marks that are susceptible to a similar fate of genericide.  This Article analyzes the circuit split and provides factors for uniformly evaluating religious trademarks for genericness without getting entangled in First Amendment concerns.

It’s Time for the Copyright Act to Patch-in a Statutory License for Video
Game Streaming

The rising popularity of gaming, coupled with the growth of streaming sites like YouTube and Twitch, has helped create a rapidly expanding market for video game content directed toward viewers. This new market has provided new areas for content creation—most notably esports and streaming. Esports draws viewers in with competitive games and highly skilled professional gamers, mirroring the appeal of traditional professional sports. Streaming, on the other hand, blends in personality, more closely resembling talk shows and game shows. Both sources of content, however, rely on the ability to use the underlying copyrighted works: the video games themselves. This Note proposes amending the Copyright Act to implement a statutory license that would provide access to these underlying works without needing affirmative permission from a game publisher.

Specifically, the amendment would create separate statutory definitions for the terms “video game” and “video game that enables user creativity,” providing a foundation for video games to be eligible for the statutory license. Using the current statutory license for music as a framework, the license would be limited solely to “video games that enable user creativity.” The proposed definition for a “video game that enables creativity” is: a video game for which (1) the level of user autonomy outweighs (2) the pre-determined aspects of the video game rendering the user’s input the primary source of entertainment. This amendment would ensure that streamers and esports professionals have access to the medium they rely on, while still compensating publishers for creating the medium. This would guarantee that the underlying goal of copyright—encouraging content creation—is met by creating market certainty and ease of access. Lastly, this Note will walk through several examples of how the proposed statutory amendment would apply to various types of video games.

“Fake” Makeup Isn’t So Pretty: Revising the Vicarious Liability Standard
for Consumers Injured by Counterfeit Cosmetics

              Counterfeiting is a widespread issue that affects countless industries, but counterfeit cosmetics occupy a uniquely dangerous segment of the overall counterfeit market. The ease of access, the popularity of luxury brands, and the numerous health and safety risks pose a risk to consumers that is distinct from other kinds of counterfeit products. Despite these dangers, there is currently no effective way for an individual consumer who has been injured by counterfeit cosmetics to obtain legal recourse for the harm they have suffered. To compensate injured consumers for their harm, Congress should permit injured consumers to use the more inclusive theory of vicarious liability used in copyright law rather than the strict test currently used in trademark law in order to bring suits against the retailers of counterfeit cosmetics. This fusion between traditional tort principles and intellectual property law will allow consumers who relied on a trusted mark and were deceived by counterfeiters to access compensatory damages.