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Issue 1 (Fall 2020) JIPEL NYU Journal of Intellectual Property & Entertainment Law ARTICLES An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019 Barton Beebe Editorial, The Need for Collective Standards: Validating Raw Data in Legal Empirical Analysis NYU JIPEL Volume 10 Editorial Board Charging Bull, Fearless Girl, Artistic Composition, and Copyright Richard Chused NOTE Crediting Procompetitive Justifications for Digital Platform Defendants: Continued salience of a broad, efficiencies-focused approach Ashley Ulrich VOLUME 10 NUMBER 1 NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY & ENTERTAINMENT LAW VOLUME 10 NUMBER 1 CONTENTS Preface................................................................................................................................. v ARTICLES An Empirical Study of U.S. Copyright Fair Use Opinions Updated, 1978-2019 ............... 1 Barton Beebe Editorial, The Need for Collective Standards: Validating Raw Data in Legal Empirical Analysis............................................................................................................................. 40 NYU JIPEL Volume 10 Editorial Board Charging Bull, Fearless Girl, Artistic Composition, and Copyright ............................... 43 Richard Chused NOTE Crediting Procompetitive Justifications for Digital Platform Defendants: Continued salience of a broad, efficiencies-focused approach ........................................................... 95 Ashley Ulrich i Statement of Purpose Consistent with its unique development, The New York University Journal of Intellectual Property & Entertainment Law (JIPEL) is a nonpartisan periodical specializing in the analysis of timely and cutting-edge topics in the world of intellectual property and entertainment law. As NYU’s first online-only journal, JIPEL also provides an opportunity for discourse through comments from all of its readers. There are no subscriptions, or subscription fees; in keeping with the open-access and free discourse goals of the students responsible for JIPEL’s existence, the content is available for free to anyone interested in intellectual property and entertainment law. ii Cite as N.Y.U. J. INTELL. PROP. & ENT. L. The New York University Journal of Intellectual Property & Entertainment Law is published two times per year at the New York University School of Law, 139 MacDougal Street, New York, New York, 10012. In keeping with the Journal’s open access and free discourse goals subscriptions are free of charge and can be accessed via www.jipel.law.nyu.edu. Inquiries may be made via telephone (212-998-6101) or electronic mail ([email protected]). The Journal invites authors to submit pieces for publication consideration. Footnotes and citations should follow the rules set forth in the latest edition of The Bluebook A Uniform System of Citation. All pieces submitted become the property of the Journal. We review submissions through ExpressO Bepress (http://law.bepress.com/ expresso/) and through electronic mail ([email protected]). All works copyright © 2020 by the author, except when otherwise expressly indicated. For permission to reprint a piece or any portion thereof, please contact the journal in writing. Except as otherwise provided, the author of each work in this issue has granted permission for copies of that article to be made for classroom use, provided that (1) copies are distributed to students free of cost, (2) the author and the Journal are identified on each copy, and (3) proper notice of copyright is affixed to each copy. A nonpartisan periodical, the Journal is committed to presenting diverse views on intellectual property and entertainment law. Accordingly, the opinions and affiliations of the authors presented herein do not necessarily reflect those of the Journal members. The Journal is also available on WESTLAW, LEXIS-NEXIS and HeinOnline. iii NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY & ENTERTAINMENT LAW VOL. 10 BOARD OF EDITORS – ACADEMIC YEAR 2020-2021 Editor-In-Chief ZACHARY J. BASS Senior Web Editor Managing Editors Executive Editor JOANNE DYNAK RYAN B. MCLEOD KEVIN QIAO ASHLEY C. ULRICH Senior Notes Editor Senior Articles Editor Senior Blog Editor GARRETT HELLER LVXIAO CHEN MINYOUNG RYOO Senior Editors MAGDALENA CHRISTOFOROU JESSE KIRKLAND NEIL CHITRAO PATRICK A. REED AMANDA GONZALEZ BURTON SIDDRA SHAH NICHOLAS J. ISAACSON JERRIT YANG Staff Editors JASON ACKERMAN CELIA DAEUN KIM TAYLOR PETERSON JOSEPH T. ADAMCZYK YUIN KIM LANCE PETERZELL CARRIE BROWN JENNIFER L. KOPP IRIS RYU ISABELLA CAITO ANDREINA LAMAS HAYLEY M. SANDERS TATIANA P. DUBOSE GIOVANNI LECONTE ZACHARY E. SHUFRO SAMUEL E. ELLISON JOSH YIXUAN LIN SAM SIEGEL DOUG ETTS LAUREN K. MARRERO MATT SINGER LEXI DAWSON GAILLARD ALEX MARTIN DANIELLE TEITELBAUM RACHEL C. GALLAGHER JOSEPH C. MINEO DANIEL TOWNS NICHOLAS GREENBERG JONATHAN M. MORRIS CHAD WILLIAMS HALYNA HNATKIV ARTHI NAINI JIANGE XIAO MAX HOFMANN NICHOLAS PERROTI KAREN YIP SAMUEL E. JENKELOWITZ JAMAL L. PERRY JULIANA V. ZHANG Faculty Advisors AMY ADLER BARTON BEEBE iv PREFACE This Fall 2020 issue – Volume 10, Issue 1 – contains works exploring a multitude of continuing and timely legal issues in intellectual property and our digital world. Notably, they are diverse in both subject matter and research methods. First, Professor Barton Beebe provides a statistical study evaluating every reported federal court opinion utilizing section 107’s fair use test – a total of 579. His article also serves to update his previous study of the same, published in 2008. Beebe concludes that much has remained the same since his first edition. Specifically, the courts continue to apply section 107’s four factors mechanistically despite collective acknowledgement that the first and fourth serve as the heart of Fair Use analysis. At the same time, Beebe’s data demonstrate a few novel trends in the doctrine’s jurisprudence. For example: The Second Circuit has declined in their interpretative influence and we have seen a rise in summary judgment issuance. You may also see Beebe talk about his work with me on our second episode of The Author Series. Second, our staff explains its statistical validation methods used for Beebe’s article and pushes for collective standards for validating raw data in legal empirical analysis. Third, Professor Richard Chused reviews the recent confrontation between Wall Street, Charging Bull, Fearless Girl, and copyright law. Specifically, Chused analyzes the validity of Arthur di Modica’s claim: that he enjoys the legal right to control the physical setting in which Charging Bull is displayed and thus, Fearless Girl’s proximity infringes on his copyright. As an expert in art law, Chused beautifully addresses the issue by referencing historically significant compositional artworks and disputes. I find his comparison of the Charging Bull-Fearless Girl controversy to Pablo Picasso’s conflict with the Francisco Franco-led Spanish government over the location of his seminal work – Guernica (1937) – to be particularly insightful. Finally, Managing Editor Ashley Ulrich provides a timely and critical analysis addressing whether the current assessment of procompetitive justifications within rule of reason analysis is sufficiently broad and flexible to deal with digital platforms accused of violating antitrust laws. Ulrich concludes that this existing approach – which allows courts to consider the range of ways that digital platform businesses enable market efficiencies – is superior to alternatives proposed by some courts and other legal scholarship. v This issue also marks a decade of publishing for JIPEL. Over this span, we have evolved from a blog of 10 editors to a journal staff of nearly 60. Our works have been discussed on The View, Live with Kelly & Ryan, The Guardian, Billboard, The Miami Herald, and more. This growth is owed to the hard work done by the nine volumes that have come before us. And on behalf of this tenth volume, I promise to continue this tradition of excellence in innovative scholarship. Thank you for reading. Sincerely, Zachary J. Bass Editor-in-Chief NYU Journal of Intellectual Property & Entertainment Law vi NEW YORK UNIVERSITY JOURNAL OF INTELLECTUAL PROPERTY AND ENTERTAINMENT LAW VOLUME 10 FALL 2020 NUMBER 1 AN EMPIRICAL STUDY OF U.S. COPYRIGHT FAIR USE OPINIONS UPDATED, 1978-2019 BARTON BEEBE* This article presents a brief update through 2019 of the author’s previous quantitative study of all reported federal court opinions that applied the Copyright Act’s four-factor test for copyright fair use. This updated study systematically analyzes 579 copyright fair use opinions from 435 cases over the 42-year period from 1978 through 2019. The updated data show that, for better and worse, much has remained the same in our fair use case law since 2005. Most notably, the fourth factor, going to the effect of the defendant’s use on the market for the plaintiff’s work, continues ultimately to dominate the test. However, the data record a significant shift toward summary adjudication of the fair use defense, a decline in the influence of the courts of the Second Circuit, and a substantial recovery in recent years in courts’ attention to the transformativeness test for fair use. * John M. Desmarais Professor of Intellectual Property Law, NYU School of Law. This long-running project has benefitted from presentations to the Los Angeles Copyright Society in 2008, the Fordham Intellectual Property Law & Policy Conference in 2012, the University of Washington School of Law Campbell at 21
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