Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
11-7-2022
Document Type
Article
Citation
Nebraska Law Bulletin (November 7, 2022)
Abstract
The issue of overreaching copyright warnings is not one to be ignored. This Note suggests three potential ways to prevent the issue. First, all copyright warnings should acknowledge the doctrine of fair use. Fair use is essential to copyright law–to business, to progress, to innovation. Second, we must strengthen the copyright misuse doctrine. The NFL is one of potentially many copyright owners flying under the radar due to this underdeveloped, incomplete defense. Copyright misuse is a doctrine that has the potential to play an important role in protecting the public policy underlying copyright law, plus it is uniquely positioned to prevent copyright owners from over assertion of rights. Third and finally, Congress or the FTC should take a stance on the issue. Legislative and regulatory bodies have the power to attack deceptive warnings proactively, and they should utilize this power. Third and finally, Congress should create guidelines for copyright warnings that are mandatory for all who choose to use them. An acknowledgment of fair use should be required in all copyright warnings, and at the very least, these warnings must declare ownership over only what the law allows.
As sports leagues continue to grow and dominate the entertainment industry, they cannot continue to misrepresent their legal rights. Overassertion of rights, particularly intangible rights like copyright, causes public confusion. It stifles innovation. It leads to unwanted monopolies. Copyright warnings are just a small piece of the problem but fixing this issue may create a clearer legal boundary for all owners and potential infringers. We must actively prevent copyright overreach and misleading copyright warnings from the NFL and others.
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