By David Lange, H. Jefferson Powell
The unique textual content of the structure gives you Congress the facility to create a regime of highbrow estate defense. the 1st modification, in spite of the fact that, prohibits Congress from enacting any legislation that abridges the freedoms of speech and of the click. whereas many have lengthy famous the strain among those provisions, contemporary felony and cultural advancements have reworked mere stress into clash. No Law bargains a brand new solution to process those debates.
In eloquent and passionate kind, Lange and Powell argue that the 1st modification imposes absolute limits upon claims of exclusivity in highbrow estate and expression, and strips Congress of the ability to limit own notion and loose expression within the identify of highbrow estate rights. even though the 1st modification doesn't repeal the Constitutional highbrow estate clause in its entirety, copyright, patent, and trademark legislations can't constitutionally license the personal commodification of the general public domain.
The authors declare that whereas the unique rights at the moment mirrored in highbrow estate will not be honestly had to inspire highbrow productiveness, they improve a compelling answer for a way Congress, even in the limits imposed by way of an absolute First modification, can nonetheless keep watch over incentives for highbrow creations. these attracted to the impression copyright doctrines have on freedom of expression within the U.S. and the theoretical and sensible features of highbrow estate legislations probably want to take a more in-depth examine this bracing, resonant work.
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21 Adding to the difficulty in understanding Hand’s insight in practice is the fact that a second work which is an exact replica of an earlier work may also be found to have been copied from the earlier work on no greater evidence than that fact alone. From such delicious paradoxes is the doctrinal stuff of copyright derived. Nevertheless Hand’s observation captures the essence of copyright originality, which requires, as we have said, nothing more than independent creation. 22 In this, copyright and patent law diverge utterly.
For Nimmer the court’s decision was a triumph of legal realism. His essay detailed the points we have summarized here in terms that left no 20 u n fa i r c om p e t i t ion a n d t r a de m a r k s doubt that he approved of Judge Frank’s ingenuity in addressing and deciding the matter, as well as the consequences for subsequent transactions in the entertainment marketplace. But he was concerned with the underlying jurisprudence: how should one think about this new right? Surely it should not merely grow like Topsy.
On the rare occasion when her wishes were ignored she did not hesitate to pursue a remedy grounded in the fourth branch of privacy. 36 But we understand as well that many public figures do not share Mrs. Kennedy’s inclinations toward such matters. 37 In any event celebrity endorsements are commonplace and have been for a very long while. One must ask, then, how the law should deal with the case of the celebrity who does not seek protection for privacy, but rather for publicity? 39 If a conveyance of something amounting to a right of publicity is contemplated, one would expect the transaction to be treated as a matter of property.