Notre Dame Law Review

Articles from Vol. 86, No. 5, September

A Note on Incentives, Rights, and the Public Domain in Copyright Law
I. A GAP IN MINIMALIST COPYRIGHT DISCOURSE The idea that the purpose of copyright law is to provide incentives for creativity is among the most fundamental and most established ideas in North American copyright discourse. (1) There can be no doubt,...
Atypical Inventions
Patent law is constantly evolving to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved over time leading to a growing disconnect between the patent system and certain technical...
Cloud Cover: Privacy Protections and the Stored Communications Act in the Age of Cloud Computing
INTRODUCTION Internet technology has completely revolutionized the way people interact, how companies transact business, and the type and amount of information that is available to the public. From its beginnings as a forum for users to transmit...
Considering the Constitutionality of Nonstate Intervenors in Original Jurisdiction Actions
One of these things is not like the others, One of these things just doesn't belong, Can you tell which thing is not like the others By the time I finish my song? (1) INTRODUCTION It is not often that one begins to hum a familiar Sesame...
Creativity and Cultural Influence in Early Jewish Law
INTRODUCTION Jewish law maintains that man is obliged to create and to renew the cosmos with his creative enterprise. According to Rabbi Joseph Soloveitchik, a leading modern authority on Jewish law, "[t]he peak of religious ethical perfection to...
Creativity, Improvisation, and Risk: Copyright and Musical Innovation
The goals and beneficiaries of copyright frameworks have long been contested in varied contexts. Copyright is often treated as a policy tool that gives creators incentives to create new works. Incentive theories of copyright often emphasize appropriability,...
Genius against Copyright: Revisiting Fichte's Proof of the Illegality of Reprinting
This essay is dedicated to the memory of Keith Aoki, dear friend and colleague. INTRODUCTION The "romantic author" or "romantic genius" has been central to the history and critique of copyright for a few decades now. (1) A figure of radical individuality,...
Harvesting Intellectual Property: Inspired Beginnings and "Work-Makes-Work," Two Stages in the Creative Processes of Artists and Innovators
This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists,...
Knowledge Curation
This Article addresses conservation, preservation, and stewardship of knowledge, and laws and institutions in the cultural environment that support those things. Legal and policy questions concerning creativity and innovation usually focus on producing...
Market Structure and Innovation: The Case of Modern Art
INTRODUCTION From the Renaissance through the mid-nineteenth century, nearly all artists faced markets for their work that were dominated by powerful institutions or individuals. The rise of a competitive market for advanced art in the late nineteenth...
Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children
She didn't really make it. She made it but she shouldn't have. She made it but look what she made it about. She made it but she isn't really an artist, and it isn't really art. She made it but it's derivative. She made it but it's infringing. She made...
Taking It on the Chenery: Should the Principles of Chenery I Apply in Social Security Disability Cases?
INTRODUCTION Facing an increasing caseload, (1) federal courts must review thousands of Social Security disability cases each year, with most ending in reversal of the agency's decision. (2) Judges have grown frustrated with the process, believing...
The Role of Creativity in Trademark Law
INTRODUCTION I. TRADEMARK LAW A. Implementation B. Theory II. THE CREATOR AND CREATIVITY A. The Mark's Creator B. Creativity's Role in Trademark Law CONCLUSION INTRODUCTION From her outre fashion--such as a dress of bubbles and...
The Western Cultural Model of Creativity: Its Influence on Intellectual Property Law
INTRODUCTION In this Article, I examine the Western cultural model of creativity, a set of ten implicit beliefs about creativity that members of Western and European cultures often hold. The Article is organized into ten Parts, each corresponding...
To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity
INTRODUCTION Intellectual property is the primary area through which the law seeks to motivate and regulate human creativity. The U.S. Constitution grants Congress the power "[t]o promote the Progress of Science and useful Arts," (1) and Congress...