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Pace Intellectual Property, Sports & Entertainment Law Forum, Volume Pace Intellectual Property, Sports & Entertainment Law Forum Volume 4 Issue 2 Spring 2014 Article 1 April 2014 Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 2, Spring 2014 Follow this and additional works at: https://digitalcommons.pace.edu/pipself Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 2, Spring 2014, 4 Pace. Intell. Prop. Sports & Ent. L.F. (2014). Available at: https://digitalcommons.pace.edu/pipself/vol4/iss2/1 This Full Issue is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Intellectual Property, Sports & Entertainment Law Forum by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Pace Intellectual Property, Sports & Entertainment Law Forum, Volume 4, Issue 2, Spring 2014 Abstract This issue of Pace Intellectual Property, Sports & Entertainment Law Forum includes articles on the modern legal issues & developments affecting fashion, the Internet, music, film, international sports, constitutional law & the lives of celebrities. Keywords intellectual property, PIPSELF, copyright, patent This full issue is available in Pace Intellectual Property, Sports & Entertainment Law Forum: https://digitalcommons.pace.edu/pipself/vol4/iss2/1 Pace Intellectual Property, Sports & Entertainment Law Forum Volume 4 Spring 2014 Issue 2 MODERN LEGAL ISSUES & DEVELOPMENTS AFFECTING FASHION, THE INTERNET, MUSIC, FILM, INTERNATIONAL SPORTS, CONSTITUTIONAL LAW & THE LIVES OF CELEBRITIES ARTICLES Cleaning Out the Closet: A Proposal to Eliminate the Aesthetic Functionality Doctrine in the Fashion Industry Jessie A. Maihos The Patent Reform Debate: Has Patent Overprotection Resulted in Not-So-Smartphones? Ryan A. Kraski Pinning Your Way to Copyright Infringement: The Legal Implications Pinterest Could Face Brittany Fink Banksy Got Back? Problems With Chains of Unauthorized Derivative Works and Arrangements in Cover Songs Under a Compulsory License Matthew A. Eller Cash From Chaos: Sound Recording Authorship, Section 203 Recapture Rights and a New Wave of Termination Hector Martinez CASE NOTES Let’s Talk About Sex: How Societal Value Evolution Has Redefined Obscenity Kamilah Mitchell The Copyright Infringement Test: A New Approach to Literary Misappropriation in Film Rikki Bahar Protecting a Celebrity’s Child From Harassment: Is California’s Amendment to Penal Code § 11414 Too Vague to Be Constitutional? Michelle N. Robinson ESSAY Is Cricket Taxing? The Taxation of Cricket Players in India Rishi Shroff Pace Intellectual Property Sports & Entertainment Law Forum Volume 4, Issue 2 Spring 2014 © 2014 by Pace Intellectual Property, Sports & Entertainment Law Forum in the compilation, formatting and arrangement of this issue. All Article copyrights are held by their respective authors. The Pace Intellectual Property, Sports & Entertainment Law Forum (e-ISSN 2329-9894) is published biannually by the students of Pace University School of Law. Editorial and business offices are located at Pace University School of Law, 78 North Broadway, White Plains, New York 10601. The Pace Intellectual Property, Sports & Entertainment Law Forum published this issue online June 2014. Views expressed in articles published in the Forum are solely the authors’ and are not attributable to the Forum, its Editors, the School of Law, or Pace University unless expressly stated. The submission of unsolicited manuscripts is invited. Manuscripts should be double spaced in 12 point Times New Roman font with footnotes at the bottom of each page. Electronic submissions saved in .doc or .docx format are preferred. Citations conform to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). PIPSELF E-Mail: [email protected] PIPSELF Twitter: @PIPSELF PIPSELF Website: http://digitalcommons.pace.edu/pipself PIPSELF Blog: http://pipself.blogs.law.pace.edu PIPSELF Facebook Page: https://www.facebook.com/pipself Suggested Citation: PACE INTELL. PROP. SPORTS & ENT. L.F. PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM Members of the Forum 2013-2014 Editor-in-Chief DANIELLE MEEKS Managing Editor DANA HALBER Acquisitions Editor Technology Editor PATRICK VANHALL SHEENA MALIK Articles Editors STEPHEN CONLON LEVI GLICK Associate Editors RIKKI BAHAR KAMILAH MITCHELL APRIL BOOKER DANIEL NASTASI SETH COTLER JENNIFER PACHECO SAMANTHA GARRISON MICHELLE ROBINSON ALEXIA MICKLES MARTHA RODRIGUEZ WHITNEY KATE SULLIVAN Founders of the Forum CAESAR LOPEZ ’12 KRISTIN LUCIANO ’12 CHRISTOPHER PSIHOULES ’12 JENNETTE WISER ’12 PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM Volume 4 Spring 2014 Issue 2 Table of Contents ARTICLES Cleaning Out the Closet: A Proposal to Eliminate the Aesthetic Functionality Doctrine in the Fashion Industry...................................... 299 Jessie A. Maihos The Patent Reform Debate: Has Patent Overprotection Resulted in Not- So-Smartphones? ....................................................................................... 327 Ryan A. Kraski Pinning Your Way to Copyright Infringement: The Legal Implications Pinterest Could Face ................................................................................. 363 Brittany Fink Banksy Got Back? Problems With Chains of Unauthorized Derivative Works and Arrangements in Cover Songs Under a Compulsory License .......... 403 Matthew A. Eller Cash From Chaos: Sound Recording Authorship, Section 203 Recapture Rights and a New Wave of Termination .................................................. 445 Hector Martinez CASE NOTES Let’s Talk About Sex: How Societal Value Evolution Has Redefined Obscenity ................................................................................................... 493 Kamilah Mitchell The Copyright Infringement Test: A New Approach to Literary Misappropriation in Film.......................................................................... 529 Rikki Bahar Protecting a Celebrity’s Child From Harassment: Is California’s Amendment to Penal Code § 11414 Too Vague to Be Constitutional? ... 559 Michelle N. Robinson ESSAY Is Cricket Taxing? The Taxation of Cricket Players in India ................ 599 Rishi Shroff PACE UNIVERSITY SCHOOL OF LAW PACE INTELLECTUAL PROPERTY, SPORTS & ENTERTAINMENT LAW FORUM Volume 4 Spring 2014 Issue 2 Article Cleaning Out The Closet: A Proposal to Eliminate the Aesthetic Functionality Doctrine in the Fashion Industry Jessie A. Maihos* * Jessie A. Maihos is currently working as an Intellectual Property Attorney at IBM. She received her Intellectual Property LL.M. from Benjamin N. Cardozo School of Law in 2014 where she was selected as an Intellectual Property & Information Law Colloquium Fellow. She received her J.D. and an Intellectual Property Law Certificate from the University of New Hampshire School of Law, formerly Franklin Pierce Law Center, in 2012 where she received the Franklin Pierce Intellectual Property Law Scholar award. She received her B.A. from Stonehill College in 2009. She would like to dedicate this article, in loving memory, to her YiaYia. 299 PACE INTELL. PROP. SPORTS & ENT. LAW FORUM Vol. 4.2 (2014) Cleaning Out The Closet Abstract The aesthetic functionality doctrine seeks to promote competition, but is ineffective in the fashion industry because there is not one design that will be the most aesthetically appealing to everyone, as there is in other industries. This Article examines the various problems with the aesthetic functionality doctrine, and will argue that this doctrine, while rel- evant in other industries, should be eliminated from fashion. Table of Contents INTRODUCTION ......................................................... 301 I. BACKGROUND OF TRADEMARK LAW .................. 302 A. Basic Principles ........................................ 302 B. The Functionality Doctrine ...................... 303 1. A Brief History of the Functionality Doctrine .............................................. 304 2. Utilitarian Functionality .................... 305 3. Aesthetic Functionality ...................... 306 II. AESTHETIC FUNCTIONALITY IN THE FASHION INDUSTRY ......................................................... 309 A. Significant Non-Reputation-Related Disadvantage ........................................... 309 B. Applying a Utilitarian Functionality Test ........................................................... 314 C. Well-Known Source Identifiers Cannot Be Functional ................................................ 316 III. AN INAPPROPRIATE RESPONSE TO A VALID CONCERN ......................................................... 318 IV. AESTHETIC FUNCTIONALITY IS RELEVANT IN OTHER INDUSTRIES .......................................... 320 V. THE GAME IS NOT WORTH THE CANDLE ........... 324 CONCLUSION ............................................................ 325 300 PACE INTELL. PROP. SPORTS & ENT. LAW FORUM Vol. 4.2 (2014) Cleaning Out The Closet INTRODUCTION The aesthetic functionality doctrine seeks to promote competition by barring trademark protec- tion when the mark in question would significantly undermine competitors’ ability to compete in the rel- evant market.1 How does this doctrine relate to the fashion industry? Fashion is not only about choosing clothes that fit based on size and physical needs; con- sumers use fashion
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