TIPLJ: Volume 33

September 2024

“The Work Will Teach You How To Do It”: Lessons from Patent Litigation Courts’ Use of Limits on Case Activity to Effectively Manage Litigation Costs

Citation: 33 Tex. Intell. Prop. L.J. 1 (2024)

Author: Michael C. Smith

About: Mr. Smith is a partner in the Marshall office of Scheef & Stone, LLP, and is the editor of the EDTexweblog.com and TexIPLawBlog.com online blogs providing analysis and commentary on practice in Texas’ federal courts, with a particular focus on intellectual property cases and practice in the Eastern District of Texas. This paper was submitted in partial fulfillment of the thesis requirement for the Executive LL.M in Litigation Management program at Baylor Law School. Prior to receiving his LL.M, Mr. Smith received his law degree from Baylor Law School and his bachelor’s degree from East Texas State University (now Texas A&M University – Commerce). Mr. Smith also holds a master’s degree in public affairs from the LBJ School of Public Affairs at The University of Texas at Austin, and a Master of Arts in World War II Studies from Arizona State University. 

ELVIS Act: From Authorship to Ownership in Intellectual Property Law 

Citation: 33 Tex. Intell. Prop. L.J. 19 (2024)

Author: Mira Moldawer

About: Mira Moldawer, ORCID: 0000-0002-7989-6406. Attorney at Law; Director and Senior Acting Instructor, Beit Zvi, School of the Performing Arts, Israel; B.F.A in Theatre & Directing (Cum Laude); Instructors Course Drama Centre, London, U.K; LL.B. Tel – Aviv University; MA Thesis Program in Law, Technology and Business Innovation, Harry Radzyner Law School, Reichman University (Summa Cum Laude); Ph.D. (Summa Cum Laude), Harry Radzyner School of Law, Reichman University; This article is a part of my Ph.D. thesis. I wish to thank Prof. Lior Zemer for his profound and inspiring supervision, Prof. Roberta Rosenthal Kwall and Prof. Dov Greenbaum for giving me the honor of serv-ing on my committee, and Prof. Shlomit Yanisky-Ravid and Prof. Lior Barshack for giving me the honor of taking part in my examination committee. I also thank Harry Radzyner Law School, Reichman University’s senior staff and colleagues for their suggestions, and my family and friends for their love and support. I would also like to thank the Texas Intellectual Property Law Journal team for their sharp editorial eye, invaluable comments, and constructive criticism of the Article. 

Abstract: ELVIS Act, being the quintessence of the exaggerated power of publicity rights, demonstrates how authorship in both copyright law and publicity rights is devoured by ownership, as analyzed in two axes: the axis of ideology and the axis of technology. The axis of ideology is discussed in the survey of the evolution of Elvis’s publicity rights in contradictory adjudication and legislation, focusing on its posthumous trait as a main vehicle of cultural control. The axis of technology demonstrated how the fear of technology leads to the strengthening of private ownership of publicity rights at the expense of the public from the enactment of the DMCA to the ELVIS Act. Publicity rights morphed into a legal hybrid, culminating in conjoined authorship with copyright law, due to their blurry theoretical infrastructure. Analyzing what con-stitutes authorship through the different components of the “if value, then right” (“IVTR”) principle, which seems to govern the evolution of authorship since its in-ception, results in the conclusion that enhanced ownership is legally granted for diminished authorship in terms of cultural values. The price is paid by the public as demonstrated by the implications of the ELVIS Act on the Elvis impersonators phenomenon. 

Public Interest, the True Soul: Copyright’s Fair Use Doctrine and the Use of Copyrighted Works to Train Generative AI Tools 

Citation: 33 Tex. Intell. Prop. L.J. 67 (2024)

Author: Elizabeth Spica, Ph.D.

About:  J.D., University of Tennessee College of Law; Ph.D., Higher Education Administration, University of Tennessee Department of Educational Leadership and Policy Studies. The author would like to thank Professor Lucy Jewel, whose insight and expertise helped shape this article. 

Abstract: Generative Artificial Intelligence (AI) tools like ChatGPT, Gemini, and Stable Diffusion are trained using datasets that often include entire copyrighted works. The use of copyrighted works to train these increasingly prominent tools has proven so controversial that a senior executive from one of the most well-known AI firms re-cently resigned, stating it was “exploitative” for AI developers to scrape and use mass amounts of internet data to train their systems without first gaining consent from copyright holders.1 In this article, I examine these concerns and ultimately con-clude that the ingestion of entire copyrighted works for the purpose of training Gen-erative AI tools likely constitutes a transformative use under U.S. copyright’s Fair Use Doctrine. In arriving at this conclusion, I first provide a brief overview of current litigation, then introduce case law instructive to the application of fair use to chal-lenges presented by Generative AI tools. Next, I apply that case law to the ingestion of copyrighted works for training Generative AI tools, arguing that such use consti-tutes a transformative, fair use under U.S. copyright law. Finally, the article ends with optimism, exploring implications for the future of copyright law and outlining the numerous avenues that creators still have to uphold their exclusive rights.