Fragmented Data Privacy Laws: Time for Federal Legislation
Lydia Rudden Federal data privacy legislation is necessary to safeguard consumer data against privacy breaches by tech companies with increasingly intrusive data practices. In 2018, California pioneered its own comprehensive data privacy legislation, the California Consumer Privacy Act (CCPA). Currently, with nearly half of U.S. states in the process of formulating their own digital privacy laws, businesses are struggling to maintain compliance, causing financial difficulties and harming innovation. Piecemeal state legislation also leaves consumers with disparate protection depending on where they live. Without a comprehensive and uniform federal law, Big Tech lobbyists shift their focus to securing industry-friendly regulations from...
The Art of Economic Restraint: Andy Warhol Foundation v. Goldsmith
Kristine C. Braddock Copyright aims to incentivize the creation of original art, but it does so at the cost of public access. As technology has evolved over the past two hundred years, Congress has persistently extended the copyright term, theoretically providing more incentive and less public access. But this trend toward perpetual protection strains the “limited Times” constraint of the Copyright Clause, whose entire purpose is to maximize creative output. This Article examines the implications of an extended copyright term, focusing on its impact on artistic innovation, particularly in light of Andy Warhol Foundation for the Visual Arts, Inc. v....
Mad About Madden: Design Patent Protection and the Fashion Industry
Elizabeth Warner The United States economy is inundated with emerging businesses replicating high-fashion designs for a fraction of the cost, which benefits consumers but threatens high-fashion exclusivity. Historically, high-fashion designers have sought to protect their unique creations by using intellectual property protections. Despite seeking out these protections, the high-fashion industry has often brought unsuccessful suits against businesses that profit from the duplication and recreation of their designs. The failure of those suits indicates that intellectual property protections in the United States inadequately protect creative and artistic clothing designs. This Article argues that the U.S. Patent and Trademark Office (USPTO) implemented...
“It Wasn’t Me”: Rethinking the Right of Publicity in the Context of AI-Generated Content
Alexa Spitz Critics have chastised the right of publicity for expanding beyond its practical and moral justifications. Although the criticism is meritorious, technological advancements call for a reevaluation of the right of publicity’s role in protecting the public from AI-generated “deepfakes.” Deepfake technology exudes exciting potential, but it also threatens to misappropriate and exploit individuals’ identities to the detriment of both victims and the public at large. Bad actors have already leveraged deepfake technology to perpetrate acts of nonconsensual pornography, bullying, and deceptive advertising. Such abuses inflict feelings of helplessness and loss of control on victims, and those feelings are...
The Great Cyberwall: Navigating China’s Cross-Border Data Laws
Christopher Tan In recognition of data’s growing significance as a corporate asset, Chinese authorities have embarked on a strategic initiative to regulate data usage and safeguard individual privacy and rights. As Beijing increasingly prioritizes national security interests, the Chinese government is enhancing its data security regulations to address national security concerns. The changes have led to greater scrutiny of cross-border data transfers, as well stricter regulations for multinational firms in China. This Article seeks to clarify the complexities of China’s data laws while emphasizing how companies should enhance their understanding of these regulatory nuances. Adopting a proactive stance and implementing...
The Heart of Artificial Intelligence in the Music Industry: Amending the Music Modernization Act to Promote Transparency
Emily Rockwell In recent months, the music industry has continually called for comprehensive legislation or executive action to regulate the use of artificial intelligence (AI) in music production. Even so, the United States government has yet to propose regulations or executive measures to oversee the social and economic impacts of AI on consumer-driven industries such as music. In contrast, the European Parliament has recently developed a comprehensive plan to regulate the rapid expansion of AI technology. This Article explores the numerous impacts of emerging AI technology upon music production and examines how current legislation such as the Music Modernization Act...
Copyright Thickness, Thinness, and a Mannion Test for Images Produced by Generative Artificial Intelligence Applications
Molly Torsen Stech Human authorship has always been, and continues to be, a foundational requirement for copyright protection to subsist in a work. Generative artificial intelligence (AI) challenges this prerequisite but does not overcome it. The output of generative AI is not discernibly different from the output of a human author and therefore benefits from a false sheen of originality. While some argue that prompt engineering fulfills the requirements of originality––the threshold for which is quite low across jurisdictions––prompting still lacks the requisite link between human creativity and the resulting work to receive copyright protections. International copyright treaties and domestic...
BLOG POST: Looking Through the Lens: Can Photography’s Past Support the Copyrightability of AI Art?
Emily Luu *This writing is a blog post. It is not a published IPTF Journal article. The public release of text-to-image models, such as Midjourney and DALL-E, has allowed users to easily create AI-generated images using only a few words.[1] Text-to-image models take user-generated prompts and, within seconds, produce an image matching that description.[2] Although text-to-image programs are a new type of visualization tool that significantly increase accessibility to artistic works for artists and non-artists alike, they have also drawn criticism from traditional artists who view this innovation only as a tool used for perpetuating uncreativity and “copycat” works.[3]As of...
A Case for Crying Over Spilled Milk: Dosage and Bioavailability in the Patent Subject Matter Eligibility of Dietary Supplements
Jacqueline Short Dietary supplement use among Americans has become increasingly prevalent following the COVID-19 pandemic. Manufacturers of dietary supplements depend on patents for success in a competitive market. In order to be patent eligible, supplements cannot be too similar to the natural substances from which they derive. The United States Patent and Trademark Office outlines the markedly different characteristics test, which courts use to determine whether supplements are unique enough to receive patents. Yet the patent cases of two supplements, ChromaDex and Natural Alternatives, reveals significant confusion around the role of dosage and bioavailability of supplements under the markedly different characteristics analysis. This...
How Existing Patent Regulations Encourage Competition in the “Super Shoe” Race
Emma McMillan Since Roger Bannister broke the four-minute mile barrier in the mid-1950s, the American public has become increasingly obsessed with achieving the impossible. In 2016, the U.S. Patent Office approved Nike’s ground-breaking and controversial patent on its first of many “super shoes,” the Vaporfly, a shoe utilizing a new lightweight foam and carbon fiber plate designed to maximize energy return and enhance running performance. Since then, dozens of other manufacturers have succeeded in developing their own super shoes. Despite this progress, however, critics contend that the approval of Nike’s Vaporfly patent not only threatens the integrity of running as...