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Burrow-Giles Lithographic Co. v. Sarony produced one of the Supreme Court's first interpretations of the term "writings" of "authors" in the Constitution's "copyright clause." But Burrow-Giles also stands out in U.S. copyright jurisprudence for its analysis of the impact of new technological modes of creation on the concept of authorship. Part I of this book explores the doctrine and debates over the copyright status of photographs before and immediately after the 1865 amendment in which Congress explicitly added photographs to the statutory subject matter of copyright. Part II assembles primary sources to lay out the story of the litigation over Sarony's Oscar Wilde photograph, from Sarony's initial complaint through the Supreme Court's decision, including a postscript on the fate of Sarony's photographic studio. Part III documents legislative and caselaw developments after Burrow-Giles, examining pre-1909 Act cases and subsequent legislative developments, the surprisingly sparse caselaw under the 1909 Act, and subsequent caselaw under the 1976 Act to the present. Notes and questions accompany each section, making the text idea as an elective or a supplement to any course in Intellectual Property or Copyright Law. Twenty-first–century observers must determine whether that role is now receding in the face of digital methods of content-generation in which perhaps no human being, whether alone or in collaboration, conceives a vision for any particular work and controls its specific execution. ; https://scholarship.law.columbia.edu/books/1296/thumbnail.jpg

After a series of decisions in which the Court of Justice of the European Union appeared to be cutting back on the application of the right of communication to the public with respect to the provision of hyperlinks, the Court's most recent decisions in Brein v. Filmspeler (C-527/15) and Brein v. Ziggo (C-610/15) concerning, respectively, sale of a device pre-loaded with hyperlinks to illegal streaming sites, and The Pirate Bay BitTorrent platform, indicate instead that the Court's prior caselaw was in fact gradually advancing toward a European harmonization of the law on derivative liability (i.e., liability in the second degree) for violation of the right of communication to the public. These two most recent decisions have now achieved that harmonization. Moreover, harmonization was necessary given both the lack of uniformity regarding secondary liability across the national laws of the member states, and the growing economic importance of furnishing the means to access infringing sources (without serving as the initial source of the infringing communication). This article will first briefly review of the facts of the cases. It then will examine how the Court's reasoning results in a European law of communication to the public that reaches actors who do not originate illicit communications, but who knowingly facilitate them (I). Next, the analysis will show that the harmonized law of derivative liability can be considered the flip side of the law of non-liability for "the storage of information provided by a recipient of the service,. for the information stored at the request of a recipient of the service" already harmonized by art. 14 of the eCommerce directive 2000/31 (II). The article concludes with a brief postscript evoking some comparisons with U.S. copyright law.

National legislation establishing extended collective licenses (ECLs) "authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law." Albeit authorized under national laws, collective coverage of non-members' works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a "formality" prohibited by art. 5(2) of the Berne Convention? Without an opt-out, does the collective's exercise of nonmember rights operate like an exception or limitation whose contours the Berne Convention, the TRIPS Accord, and the WIPO Copyright Treaty "three-step test" constrain? This essay will analyze the extent to which international norms apply to ECLs and then will propose a treaty-compatible approach to opting-out. ECL systems are a pragmatic response to the growing demand for bulk use of works of authorship, particularly in the digital environment. They can enhance access for users and remuneration to authors, and often may furnish the best means of achieving these ends. Provided, however, that authors' consent is properly presumed, or that the covered uses are defined to avoid conflict with normal exploitations, including emerging exploitations. An opt-out can enable the CMO to license uses that might otherwise encroach on normal exploitations, but for that reason, the more the ECL treads on transactionally-licensable exploitations, the higher the burden to justify the extension effect to non members through a rigorously-administered opt-out program that effectively notifies and clearly explains the consequences to non CMO member authors of their right to opt-out.

Some years ago, caselaw on trademark parodies and similar unauthorized "speech" uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers' alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense prevailed coupled copyright and trademark claims. Just as copyright law has influenced the development of trademark doctrine in the US, so has trademark law evolved a reciprocal relationship with copyright, potentially extending the protection of certain copyrighted works, notably cartoon characters, beyond the copyright term. This essay will first address how the US copyright fair use doctrine has allowed US federal judges in trademarks cases to connect with their inner comic impulses. Second, I will consider the conflict between trademark law's potentially eternal duration and copyright's constitutionally mandated limited times, particularly in the context of visual characters such as Mickey Mouse. Looking to EU law, I will also offer some additional considerations regarding the use of expired copyrighted works as trademarks. While those analyses address trademarks and copyright as potential antagonists where exercise of trademark rights threatens to frustrate copyright policies, there is another side of the coin. To an increasing extent, we are seeing trademark symbols become characters and acquire value not only as source-indicators, but also as artistic (or audiovisual) works. I will conclude by considering the value that copyright protection might add to registered trademarks.

In Alan Jay Lerner's lyric, Professor Henry Higgins laments: "Why can't a woman be more like a man?" Professor Rebecca Tushnet's provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between "procedural" and "substantive" registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration. Before elaborating on the similarities between Tushnet's suggested reforms of U.S. trademark law and current EU trademark law, this Response will articulate the premises underlying use-based and registration-based systems, premises implicit in Tushnet's arguments, but which may not be apparent to readers unfamiliar with trademark law. This Response will then address ways in which the EU trademark registration system offers a model to implement some of Tushnet's prescriptions.

This article offers an overview of copyright in general in common law and civil law countries, with an emphasis on the U.S. and the European Union. It addresses the history and philosophies of copyright (authors' right), subject matter of copyright (including the requirement of fixation and the exclusion of "ideas"), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. The article also covers the liability of intermediaries, and new copyright obligations concerning technological protections and copyright management information. It concludes with some observations concerning the role of copyright in promoting creativity and free expression.

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" standard has become so complex and incoherent that the U.S. Supreme Court has agreed to hear an appeal from a case in which the appellate court, echoing sister Circuits, expressed the lament quoted in the title of this article. The article will review the genesis and application of the statutory standard, with illustrations from several of the cases, and will offer two conclusions and a legislative proposal. First, the controversy before the Court does not concern the "design of a useful article," and therefore does not require the Court to resolve the meaning of "separability." The controversy nonetheless reveals the importance of ascertaining whether the contested design is in fact the design of a "useful article." A pre-existing pictorial, graphic or sculptural work applied to a useful article is not itself a useful article, and courts need not "twist themselves into knots" endeavoring to parse the meaning of the statutory separability standard. Were the Supreme Court to decline to reach separability on the ground that resolution of the Varsity Brands dispute does not in fact require it, some might be disappointed that the Court would fail to tidy the disarray in the lower courts. But the predicate issue – what is the design of a "useful article" – also warrants more attention than lower courts have given it. Thus, were the Court to leave separability to a case that in fact poses that issue, the Court would still contribute to clarifying this area of copyright law. Second, the statutory requirements of separate identifiability and independent existence apply to "features" of the design, not to the entire shape of a useful article; attempts (including those ventured by this article) to extend separability analysis to the useful article's form as a whole prove unworkable. Accordingly, rather than continuing to struggle with an intractable statutory copyrightability standard, this article proposes the enlargement of Title 17's sui generis design protection regime to cover original designs of most useful articles.

In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international lawmakers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" standard has become so complex and incoherent that the U.S. Supreme Court has agreed to hear an appeal from a case in which the appellate court, echoing sister Circuits, expressed the lament quoted in the title of this Article. The Article will review the genesis and application of the statutory standard, with illustrations from several of the cases, and will offer two conclusions and a legislative proposal. First, the controversy before the Court does not concern the "design of a useful article," and therefore does not require the Court to resolve the meaning of "separability." The Varsity Brands case nonetheless reveals the importance of ascertaining whether the contested design is in fact the design of a "useful article." A pre-existing pictorial, graphic or sculptural work applied to a useful article is not itself a useful article, and courts need not "twist themselves into knots" endeavoring to parse the meaning of the statutory separability standard. Were the Supreme Court to decline to reach separability on the ground that resolution of the Varsity Brands dispute does not in fact require it, some might be disappointed that the Court would fail to tidy the disarray in the lower courts over separability. But the predicate issue—what is the design of a "useful article"—also warrants more attention than lower courts have given it. Thus, were the Court to leave separability to a case that in fact poses that issue, the Court would still contribute to clarifying this area of copyright law. Second, the statutory requirements of separate identifiability and independent existence apply to "features" of the design, not to the entire shape of a useful article; attempts (including those ventured by this Article) to extend separability analysis to the useful article's form as a whole prove unworkable. Accordingly, rather than continuing to struggle with an intractable statutory copyrightability standard, this Article proposes the enlargement of Title 17's sui generis design protection regime to cover original designs of most useful articles.