Wendy J. Gordon

William Fairfield Warren Distinguished Professor

Professor of Law

BA with distinction in all subjects, Cornell University
JD, University of Pennsylvania

Areas of Interest
Economics & Law, Intellectual Property, Jurisprudence, Torts
Contact
Biography

Professor Wendy J. Gordon has taught at Boston University since 1993, and was recently named to one of its ten William Fairfield Warren Distinguished Professorships. An advisor to BU’s Intellectual Property Concentration, she also tremendously enjoys interdisciplinary dialogue. Her scholarship utilizes economics as well as both ethical and analytic philosophy to understand copyright, trademark, and related forms of property and tort law. Although based in BU’s School of Law, she has developed and co-taught courses with philosopher Aaron Garrett, Shakespearean actor Jonathan Epstein, and (this past semester) literary critic Sir Christopher Ricks. She is increasingly turning to art (fiction, opera, poetry, and narrative nonfiction) as an additional source of insight.

Wendy’s current scholarly project seeks to develop an “ideal” model of copyright law, with particular attention to the doctrine known as fair use. The project examines how various legal rights against harm, and legal rights of control, interact with justified personal liberties such as free speech. Her ultimate goal is to reform the law to improve those interactions, from varying perspectives of morality, economics, and internal consistency.

Wendy has served as a Fulbright scholar, was elected by Oxford’s St. John’s College to a Visiting Senior Research Fellowship, and was selected as a resident at the Rockefeller Foundation retreat in Bellagio. She has also been the Bacon-Kilkenny Distinguished Visitor at Fordham, a Visiting Fellow at Oxford’s Programme in Comparative Media Law and Policy, and the “Intellectual Property Distinguished Visitor” at the Lewis and Clark Law School; she has received grants including a New Jersey Governor’s Fellowship in the Humanities. Wendy has held the Philip Beck Chair and other endowed posts, and has twice served as the Chair of the Association of American Law Schools Section on Intellectual Property. The United States Supreme Court has cited her scholarship three times.

Her articles, often anthologized and translated, have also been cited by courts in nations outside the US. Her publications include “Fair Use as Market Failure” (Columbia Law Review), “A Property Right in Self-Expression” (Yale Law Journal; also published in Chinese), “An Inquiry into the Merits of Copyright” (Stanford Law Review), the chapter on Intellectual Property in The Oxford Handbook on Legal Studies (chapter also published in Japanese), “On Owning Information” (Virginia Law Review), “Render Copyright Unto Caesar: On Taking Incentives Seriously” (University of Chicago Law Review; also translated into Croatian).

In addition to Boston University, Wendy has taught in various capacities at the law schools of the University of Chicago, Fordham University, Georgetown University, University of Michigan, NYU, Oxford (U.K.), Rutgers University/Newark, University of Toronto, Western New England College, and the Yale Law School. In 2002, she received the RA Cass Award for Committment to Teaching from the Fund for Teaching Excellence.

Publications
  1. Wendy Gordon, "The Core of Copyright: Authors, Not Publishers," in Symposium Recalibrating Copyright: Continuity, Contemporary Culture, and Change, 52 Houston Law Review 613 (2014-15).
    HeinOnline (BU) | HeinOnline
  2. Wendy Gordon, "Copyright and Negligence as Mirror Models: On Not Mistaking for the Right Hand What the Left Hand is Doing," in Research Handbook on Comparative Law and Economics , G. B. Ramello & T. Eisenberg, eds., Edward Elgar Publishing (forthcoming).
  3. Wendy Gordon, "The Fair Use Doctrine: Markets, Market Failure and Rights of Use," in Handbook on the Economics of Copyright: A Guide for Students and Teachers 77, Richard Watt, ed., Edward Elgar Publishing (2014).
  4. Wendy Gordon, "The Concept of 'Harm' in Copyright," in Intellectual Property and the Common Law 452, Shyamkrishna Balganesh, ed., Cambridge University Press (2013). SSRN
  5. Wendy Gordon, "Dissemination Must Serve Authors: How the U.S. Supreme Court Erred," 10 Review of Economic Research on Copyright Issues 1 (2013).
    SSRN
  6. Wendy Gordon, "The Lost Logic of Deterrence: When ‘Sending A Message’ To The Masses Outstrips Fairness," COGNOSCENTI (Jul 11, 2013).
    Publisher
  7. Wendy Gordon, "Fair Use Markets: On Weighing Potential License Fees," in Symposium Celebrating the Fourteenth Anniversary of Justice Breyer's Article: The Uneasy Case for Copyright: Supporting Creativity and its Dissemination: Alternative Ends, Alternative Means, 79 George Washington Law Review 1814 (2011).
    HeinOnline (BU) | HeinOnline
  8. Wendy Gordon, "Current Patent Laws Cannot Claim the Backing of Human Rights," in Intellectual Property and Human Rights: A Paradox 155, Willem Grosheide, ed., Edward Elgar (2010). Publisher
  9. Wendy Gordon, "Discipline and Nourish: On Constructing Commons," 95 Cornell Law Review 733 (2010). [Response]
  10. Wendy Gordon, S. Scafidi, Orit Fischman Afori, Mark Janis & Jonathan Moskin, "The Global Contours of IP Protection for Trade Dress, Industrial Design, Applied Art, and Product Configuration," in Symposium Functionality: At the Crossroads of IP, 20 Fordham Intellectual Property, Media & Entertainment Law Journal 795 (2010). [Panel Discussion]
    Publisher
  11. Wendy Gordon, "Harmless Use: Gleaning from Fields of Copyrighted Works," in Symposium When Worlds Collide: Intellectual Property at the Interface Between Systems of Knowledge Creation, 77 Fordham Law Review 2411 (2009).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  12. Wendy Gordon, "Trespass-Copyright Parallels and the Harm-Benefit Distinction," 122 Harvard Law Review Forum (2009).
    Westlaw | Publisher | Lexis Advance
  13. Wendy Gordon, "Moral Philosophy, Information Technology, and Copyright," in Information Technology and Moral Philosophy 270, Jeroen van den Hoven & John Weckert, eds., Cambridge University Press (2008).
  14. Wendy Gordon, "Ronald Coase," in The New Oxford Companion to Law, Peter Cane & J. Conaghan, eds., Oxford University Press, 147 (2008).
  15. Wendy Gordon, "The 'Why' of Markets: Copyright and Fair Use," 116 Yale Law Journal Pocket Part 371 (2007).
    Westlaw | Publisher | Lexis Advance | BU
  16. Wendy Gordon & Daniel Bahls, "The Public's Right to Fair Use: Amending Section 107 to Avoid the 'Fared Use' Fallacy," in Symposium on Fixing Copyright, 2007 Utah Law Review 619 (2007).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  17. Wendy Gordon, "Copyright Norms and the Problem of Private Censorship," in Copyright and Free Speech: Comparative and International Analyses 67, Jonathan Griffiths & U. Suthersanen, eds., Oxford University Press (2005).
  18. Developments in the Economics of Copyright: Research and Analysis, Wendy Gordon, Lisa N. Takeyama & Ruth Towse, eds., Edward Elgar Publishing (2005).
    Publisher
  19. Wendy Gordon & Lois Wasoff, "Even Non-Extremists Get the Blues: The Rhetoric of Copyright," in An Unhurried View of Copyright Republished (and with Contributions from Friends) GORWAS-1, B. Kaplan, Arthur R. Miller & I. C. Geik, eds., Matthew Bender (2005).
  20. Wendy Gordon, "Fair Use: Threat or Threatened?" in Symposium on Copyright and Personal Copying: Sony v. Universal Studios Twenty-one Years Later, 55 Case Western Reserve Law Review 903 (2005). [Keynote]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  21. Wendy Gordon, "Do We Have a Right to Speak with Another's Language? Eldred and the Duration of Copyright," in Copyright and Human Rights 109, Paul L. C. Torremans, ed., Kluwer Publishing (2004). Reprinted in 2 The Political Economy of Intellectual Property Rights 526, Christopher May, ed., Edward Elgar Publishing Limited (2010).
  22. Wendy Gordon, "Render Copyright unto Caesar: On Taking Incentives Seriously," 71 University of Chicago Law Review 75 (2004). Republished as: "Dati Caru Njegovo Autorsko Pravo: O Ozbiljnom Shva Anju Poticaja," translated by Zeljko Mrsic, Nov-um (2008). [Croatian]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  23. Wendy Gordon, "Copyright As Tort Law's Mirror Image: 'Harms', 'Benefits', and the Uses and Limits of Analogy," 34 McGeorge Law Review 533 (2003). Reprinted in 2 ICFAI Journal of Intellectual Property Rights 29 (2003), revision reprinted in 3 ICFAI Journal of Intellectual Property Rights, No. 2 (May 2004).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  24. The Economics of Copyright: Developments in Research and Analysis, Wendy Gordon & Richard Watt, eds., Edward Elgar Publishing (2003).
    Publisher
  25. Wendy Gordon, "Excuse and Justification in the Law of Fair Use: Transaction Costs Have Always Been Only Part of the Story," 50 Journal of the Copyright Society of the U.S.A. 149 (2003).
    Westlaw
  26. Wendy Gordon, "Intellectual Property Law," in Oxford Handbook of Legal Studies, Peter Cane & Mark Tushnet, eds., Oxford University Press, 617 (2003). Republished in Japanese, Tanabe Hideyuki, translator, 11 The Journal of Intellectual Property Law and Policy [Chitekizaisan Ho-seisakugaku Kenkyu] 1 (2006).
    BU
  27. Wendy Gordon, "Authors, Publishers and Public Goods: Trading Gold for Dross," in Symposium on Eldred v. Ashcroft, 36 Loyola of Los Angeles Law Review 159 (2002).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  28. Wendy Gordon, "Comment on Data Protection Statutes and Bioinformatic Databases," 8 Boston University Journal of Science and Technology Law 180 (2002).
  29. Wendy Gordon, "Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives," in The Commodification of Information 149, N. Elkin-Koren & N. W. Netanel, eds., Kluwer Law International (2002). Reprinted and updated in ICFAI Intellectual Property Rights Journal (forthcoming).
  30. Wendy Gordon, "Market Failure and Intellectual Property: A Response to Professor Lunney," 82 Boston University Law Review 1031 (2002).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  31. Wendy Gordon, "Commentary on Economic and Ethical Reasons for Protecting Data," in International Intellectual Property Law and Policy 76-1, H. C. Hansen, ed., Juris Publishing (2001).
  32. Wendy Gordon & Tamar Frankel, "Introduction," in Symposium on Trust Relationships, 81 Boston University Law Review 321 (2001).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  33. Wendy Gordon et al., "The Constitutionality of Copyright Term Extension: How Long is Too Long?" in Symposium on Copyright Term Extension, 18 Cardozo Arts and Entertainment Law Journal 651 (2000).
    Westlaw | Lexis Advance
  34. Wendy Gordon & Robert G. Bone, "Copyright," in Encyclopedia of Law and Economics, B. Bouckaert & Gerrit De Geest, eds., Edward Elgar, 189 (2000). Reprinted in The Economics of Intellectual Property, R. Towse & R. W. Holzhauer eds., Edward Elgar Publishing (2002).
  35. Wendy Gordon, "Copyright and Parody: Touring the Certainties of Property and Restitution," in Certitudes Du Droit (Certainty and the Law) , Ejan Mackaay, ed., Themis Publishing (2000).
  36. Wendy Gordon, "Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction," 66 Brooklyn Law Review 473 (2000).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  37. Wendy Gordon, "Introduction," in Symposium on Ralph Sharp Brown, Intellectual Property, and the Public Interest, 108 Yale Law Journal 1611 (1999).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  38. Wendy Gordon, "Intellectual Property as Price Discrimination: Implications for Contract," in Symposium on the Internet and Legal Theory, 73 Chicago-Kent Law Review 1367 (1998). Reprinted in Intellectual Property Rights: Critical Concepts in Law, David Vaver, ed., Routledge (2006).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  39. Wendy Gordon & Sam Postbrief, "On Commodifying Intangibles," review of James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society, Harvard University Press (1996) and Margaret Jane Radin, Contested Commodities, Harvard University Press (1996), 10 Yale Journal of Law and the Humanities 135 (1998). Westlaw | Lexis Advance
  40. Wendy Gordon, "On the Economics of Copyright, Restitution and 'Fair Use': Systemic Versus Case-by-Case Responses to Market Failure," 8 Journal of Law and Information Science 7 (1997).
    HeinOnline (BU) | HeinOnline
  41. Wendy Gordon, Article on Intellectual Property in Careers and the Minority Lawyer 32 (1996).
  42. Wendy Gordon, "Norms of Communication and Commodification," 144 University of Pennsylvania Law Review 2321 (1996).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  43. Wendy Gordon, "Assertive Modesty: An Economics of Intangibles," in Symposium Toward a Third Intellectual Property Paradigm, 94 Columbia Law Review 2579 (1994).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  44. Wendy Gordon, "Counter-Manifesto: Student-Edited Reviews and the Intellectual Properties of Scholarship," 61 University of Chicago Law Review 541 (1994).
    Westlaw | HeinOnline (BU) | HeinOnline
  45. Wendy Gordon & Tamar Frankel, "Enforcing Coasian Bribes for Non-Price Benefits: A New Role for Restitution," 67 Southern California Law Review 1519 (1994). Reprinted in Restitution 347, Lionel D. Smith, ed., Ashgate Publishing (2001).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  46. Wendy Gordon & A. Gowen, "Mandated Access: Commensurability and the Right to Say 'No'," 17 Hastings Communications and Entertainment Law Journal 225 (1994).
    Westlaw | HeinOnline (BU) | HeinOnline
  47. Wendy Gordon, "Systemische und fallbezogene Losungsansatze fur Marktversagen bei Immaterialgutern (Systemic and Case-by-Case Responses to Failures in Markets for Tangible Goods)," in Okonomische Analyse der Rechlichen Organisation von Innovationen , C. Ott & H. Schafer, eds., Verlag Mohr and Siebeck (1994). [German] [translated by Elisabeth Haberfellner]
  48. Wendy Gordon, "Virtual Reality, Appropriation, and Property Rights in Art: A Roundtable Discussion," 13 Cardozo Arts and Entertainment Law Journal 89 (1994). [Moderator]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  49. Wendy Gordon, "Preface," in Symposium on Intellectual Property Law Theory, 68 Chicago-Kent Law Review 583 (1993). [co-editor]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  50. Wendy Gordon, "A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property," 102 Yale Law Journal 1533 (1993). Republished in translation by X. Shanshan & Wangsui, under the direction of Professor Li Yang, Private Law (2008). [Chinese]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  51. Wendy Gordon, "Truth and Consequences: The Force of Blackmail's Central Case," 141 University of Pennsylvania Law Review 1741 (1993).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  52. Wendy Gordon, "Asymmetric Market Failure and Prisoner's Dilemma in Intellectual Property," 17 University of Dayton Law Review 853 (1992). Translated and published as "Fallas Asimeìtricas del Mercado y el Dilema del Prisionero en Propiedad Intelectual", Revista Latinoamericana de Propiedad Intelectual 2 (2011). [Spanish]
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  53. Wendy Gordon, "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 Journal of Legal Studies 449 (1992). Reprinted in 34 McGeorge Law Review 541 (2003).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline | BU
  54. Wendy Gordon, "On Owning Information: Intellectual Property and the Restitutionary Impulse," 78 Virginia Law Review 149 (1992).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  55. Wendy Gordon, "Reality as Artifact: From Feist to Fair Use," 55 Law and Contemporary Problems 93 (1992).
    Westlaw | HeinOnline (BU) | HeinOnline
  56. Wendy Gordon, "Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship," review of Paul Goldstein, Copyright: Principles, Law and Practice, Little Brown (1989), 57 University of Chicago Law Review 1009 (1990). Westlaw | Lexis Advance
  57. Wendy Gordon, "An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent and Encouragement Theory," 41 Stanford Law Review 1343 (1989).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  58. Wendy Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," 82 Columbia Law Review 1600 (1982). Reprinted in 1 The Economics of Intellectual Property 377, R. Towse & R. W. Holzhauer, eds., Edward Elgar Publishing (2002).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  59. Wendy Gordon, "The Artist's Tax Dilemma," 1979 Estates, Gifts and Trusts Journal 20 (Mar-Apr 1979).
Courses

4 credits

Copyright is one of the major legal regimes governing art, software, information, and entertainment, and its rules deeply affect how the internet operates. This course is a policy and skills-oriented study of federal copyright law. Much of copyright policy can be clarified by using some basic tools from economics and philosophy; these analytic tools will be taught during the course, and no prior knowledge is required. As for skills, the course focuses on two: how to tackle and master a complex set of interrelated statutory provisions, and how to articulate legal principles orally in a way that would be comprehensible to an untutored judge. Rather than having a predominant lecture format, the course puts student analysis at its center. The course will cover the exclusive rights granted to creators of "original works of authorship", the authorial subject-matters eligible for federal copyright, the nature of an infringement action, and defenses such as fair use. In addition, students will be expected to master at least one detailed, statute-governed topic such as duration (how long do rights over a given work of authorship remain in private hands before becoming free for all to copy) or the inalienable right of termination (how authors can retrieve their copyrights despite having signed contracts indicating that they have sold all rights). The course also examines some state rights, such as the 'right of publicity' and 'quasi-property rights against the misappropriation of data', for purposes of exploring how these state doctrines interact with, or are pre-empted by, federal copyright law. GRADING NOTICE: This class will not offer the CR/NC/H option.

FALL 2015: LAW JD 952 A1 , Aug 31st to Dec 2nd 2015
Days Start End Credits Instructors Bldg
Tue,Thu 10:40 am 12:40 pm 4 Wendy J. Gordon LAW
FALL 2016: LAW JD 952 A1 , Sep 6th to Dec 8th 2016
Days Start End Credits Instructors Bldg
Tue,Thu 11:00 am 12:15 pm 4 Wendy J. Gordon
Fri 10:30 am 11:45 am 4 Wendy J. Gordon

3 credits

This seminar will intensely examine a small number of topics from the frontier of intellectual property law ("IP"). I will invite several intellectual property scholars to present their works-in-progress. Students will be required to read the works in advance, and will be assigned additional reading as appropriate. The scholars will present their scholarly articles, and students will respond with questions, comments and critiques. The seminar's goals are treble: for students to deepen their substantive knowledge of IP law, for students to increase their abilities to participate in, and potentially publish their own work in, scholarly debate, and for scholars in the midst of the publication process to improve their papers through the input of the workshop group. Students must have taken or be currently enrolled in a course in IP, Copyright, Patent, or Trademark. Students who have not taken such a course (or who are not enrolled currently in such a course) must obtain the permission of the instructor. Preference for entry will be given to JD students pursuing an "IP Concentration", students pursuing an LLM in American Law degree with an IP concentration, and to LLM students pursuing a master's degree in IP. The seminar is also open to other JD and LLM students, and to students outside the law school. Overall enrollment is tentatively capped at 18; students beyond that number can be admitted with the permission of the instructor. Students have the option of writing many short response papers, or of writing a single in-depth paper in IP. The latter option can fulfill the JD Upper Class Writing Requirement. GRADING NOTICE: This course does not offer the CR/NC/H option. ** A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

SPRG 2016: LAW JD 776 A1 , Jan 11th to Apr 18th 2016
Days Start End Credits Instructors Bldg
Wed 10:40 am 12:40 pm 3 Wendy J. Gordon LAW
SPRG 2017: LAW JD 776 A1 , Jan 18th to Apr 26th 2017
Days Start End Credits Instructors Bldg
Wed 4:20 pm 6:20 pm 3 Michael J. Meurer
In the Media
View all profiles