Indigenous Legal Orders, Legal Pluralism, and the Coloniality of Method Across Comparative Law, International Law, IP, and Trade Governance Webinar Now Online

News from Paolo Davide Farah, University of Tulsa College of Law: 

The webinar Indigenous Legal Orders, Legal Pluralism, and the Coloniality of Method Across Comparative Law, International Law, IP, and Trade Governance.

The webinar brought together an outstanding group of scholars to explore how Indigenous legal orders challenge dominant legal epistemologies and invite us to rethink foundational assumptions embedded within international law, comparative law, intellectual property, cultural heritage governance, technology governance, development, and global governance more broadly.

I was happy to moderate and contribute to the discussion featuring:

• Professor Chidi Oguamanam (University of Ottawa)
• Professor Elena Baylis (University of Pittsburgh School of Law)
• Professor Sergio Alberto Gramitto Ricci (Hofstra University School of Law)
• Professor Dana G. Jones (North Carolina Central University School of Law)

The conversation addressed a range of interconnected themes, including Indigenous knowledge systems, legal pluralism, cultural heritage and repatriation, intellectual property, governance theory, artificial intelligence, structural bias, epistemic governance, and the future of global governance in an increasingly multipolar world.

Watch the Webinar Recording

https://www.youtube.com/watch?v=r-DGGXPwRZI

Read the Full Post-Webinar Reflection

https://paolofarah.wordpress.com/2026/06/02/indigenous-legal-orders-legal-pluralism-and-the-coloniality-of-method-in-global-governance-reflections-from-the-abila-cle-webinar/

Additional Information, Speaker Biographies, and Suggested Readings

https://paolofarah.wordpress.com/2026/04/06/abila-cle-webinar-series-indigenous-legal-orders-legal-pluralism-and-the-coloniality-of-method-in-global-governance/

I hope these materials will be of interest to those working on Indigenous rights, legal pluralism, international law, comparative law, intellectual property, cultural heritage, governance, artificial intelligence, and related fields.

With best wishes,

Paolo

https://paolofarah.com/

https://paolofarah.wordpress.com/

papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=629289

Little on Protecting Black Creativity: Rap Lyrics as Misused Evidence and the Case for Intellectual Property Law Reform

Shathera Little, Protecting Black Creativity: Rap Lyrics as Misused Evidence and the Case for Intellectual Property Law Reform. Here is the abstract.

This paper examines the growing use of rap lyrics as evidence in criminal proceedings and argues that such practices reflect a fundamental misunderstanding of Black creative expression. Drawing on Critical Race Theory, this paper demonstrates how courts disproportionately interpret rap lyrics as literal confessions rather than artistic works, reinforcing racial bias and undermining fair trial principles. The analysis further contends that this mischaracterization exposes a gap within U.S. intellectual property law, which fails to adequately protect the contextual and expressive nature of lyrical content when it is removed from its artistic framework and repurposed as evidence. By treating rap lyrics differently from other forms of creative expression, courts effectively erode both First Amendment protections and the underlying principles of copyright law. This paper proposes a re-evaluation of evidentiary standards and calls for intellectual property law reform that recognizes rap lyrics as protected creative works, requiring courts to account for artistic context before admitting such material as evidence. In doing so, it advances a broader framework for protecting Black creativity within the legal system.

Download the article from SSRN at the link.

Tushnet on History and Tradition in First Amendment Intellectual Property Cases: A Critique

Rebecca Tushnet, Harvard Law School, is publishing History and Tradition in First Amendment Intellectual Property Cases: A Critique in the Marquette Intellectual Property Law Review. Here is the abstract.

There are indications that the "history and tradition" approach the Supreme Court applied to gun rights and abortion restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical analogies for the right of publicity, copyright, and trademark. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t do to strike down gun regulations today, in “history and tradition” First Amendment law the Court has reasoned by broad analogy to allow new speech restrictions. One lesson is that the history and tradition approach does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark, outside highly politicized contexts. The manipulability of levels of generality in making historical analogies has been justly criticized, but the IP cases provide a particularly clear contrast in outcomes from those in the Second Amendment cases, despite putatively using the same method of looking to historical models before—and even in place of—applying a means-ends test or other non-analogic scrutiny.

Download the article from SSRN at the link.

Goold and Simon on The Case of Snickerwood Soup @davidasimon.bsky.social @david__simon @NUSL

Patrick Russell Goold, City University London, The City Law School, and David A. Simon, Northeastern University School of Law, have published The Case of Snickerwood Soup. Here is the abstract.

Intellectual property lawyers often ask: What is the value of intellectual property (IP) theory? During our research, we have uncovered a case from a distant land that might shed some light on the issue: The Case of Snickerwood Soup. We report it in full here.

Download the article from SSRN at the link.

Unah and Peng on US Supreme Court Decision Making in Intellectual Property Rights (1954-2022)

Isaac Unah, University of North Carolina, Chapel Hill, Department of Political Science, and Sabrina Peng, Duke University School of Law, have published 2. US Supreme Court decision making in Intellectual Property rights (1954-2022). Here is the abstract.

We analyze U.S. Supreme Court decision making in the complex area of intellectual property (IP) to determine whether the Court is strengthening, keeping neutral, or weakening the rights of intellectual property owners. We argue that the Court’s strategic currency is to weaken IP protections to counteract the value stretching and monopolistic tendencies of IP holders. Relying on original data covering four judicial Eras from the Warren Court to the Roberts Court (1954-2022), the analysis strongly supports our theoretical argument, especially as it pertains to patents, showing that the Supreme Court is weakening the rights of patent holders in the IP ecosystem. We further find that there is no IP exceptionalism in the Supreme Court when it comes to ideological influences but that these ideological effects are highly codependent upon other institutional factors. Interestingly, liberal Justices are significantly more likely than conservative Justices to disfavor expanding protections for intellectual property owners.

Download the essay from SSRN at the link.

Moving Online Symposium: Call For Proposals: Symposium, January 30, 2025, Coventry University, UK @covcampus

Symposium Announcement and Call for Proposals

Moving Online Symposium: Call for proposals 

Ontology and Ownership of Internet Dance

Symposium 30th January 2025 

Coventry University, UK 

 

Full details here: https://movingonline.coventry.domains/symposium/

Deadline for abstracts 13^th October 2024

 

It will be free to attend and a limited number of bursaries will be available to support travel and participation by freelance artists. More information is available here: https://movingonline.coventry.domains/symposium-bursaries/

 

 

In recent years, there has been increased attention paid to the ownership of dance. There has been important work done in the area of dance and copyright1 as well as the examination of the way ownership is managed via social norms through the ‘commons’2 and as a form of ‘gift’.3 The increased circulation of dance online through archives, video platforms and social media sites has led to multiple debates about the copying and re-embodiment of dances,4 reigniting important conversations about appropriation, acknowledgment and credit.5 

 

At the same time, there has been a flourishing of work on dance and performance ontology. For example, long-standing debates about the ephemerality of dance and performance have been reframed through discussions about the ‘post-ephemeral’6and materiality.7 There have also been new perspectives offered on questions about the nature of dances and the way in which they exist.8,9 

 

In this symposium, we are interested in exploring how these two areas intersect in the context of online dance and performance. The event builds on and shares the findings from Moving Online: Ontology and Ownership of Internet Dance https://movingonline.coventry.domains  (funded by the Arts and Humanities Research Council [grant number AH/W01002X/1]). We invite proposals that explore the ownership and/or ontology of dance or performance on the internet. We welcome consideration of dance and performance in all of their forms, genres and online contexts. Suggested themes include, but are not limited to: 

 

• Ownership disputes and resolutions 
• Acknowledgment and credit 
• Non-legal forms of ownership 
• Appropriation, copying and/or commodification 
• Copyright, licensing and/or NFTs 
• Materiality, (post) ephemerality and/or ontology 
• Dance challenges, reworking or reenactment 
• Remediation 
• Ownership, economics and online circulation 

 

Proposals should be for 20, 60 or 90 minute sessions and might include: academic papers, curated discussions and/or online performances or screenings. Please submit the following by 13 October 2024 via this link: https://movingonline.coventry.domains/symposium/

 

• 300 word abstract 
• 100 word bio for each contributor 
• Any technical requirements (please note that there will be limited technical support available) 
• Any dietary requirements 
• Any access requirements 

 

We welcome alternative formats for submission. Please contact Hetty Blades to arrange this: hetty.blades@coventry.ac.uk

 

The event is supported by the Arts and Humanities Research Council via Moving Online (grant number AH/W01002X/1).

 

Timeline: 

• Deadline for Abstracts: 13 October 2024 
• Notification of outcome: 1 November 2024 
• Bursary application deadline: 28 October 2024 

performances or screenings. Please submit the following by 13 October 2024 via this link: https://movingonline.coventry.domains/symposium/

 

• 300 word abstract 
• 100 word bio for each contributor 
• Any technical requirements (please note that there will be limited technical support available) 
• Any dietary requirements 
• Any access requirements 

 

We welcome alternative formats for submission. Please contact Hetty Blades to arrange this: hetty.blades@coventry.ac.uk

 

The event is supported by the Arts and Humanities Research Council via Moving Online (grant number AH/W01002X/1).

 

Timeline: 

• Deadline for Abstracts: 13 October 2024 
• Notification of outcome: 1 November 2024 
• Bursary application deadline: 28 October 2024
• Bursary application outcome: 11 November 2024
• Symposium: 30 January 2025 

   

  Follow the project on X: @MovingOnlineCU and/or Instagram: @movingonlinecu 

   

  Please contact Hetty Blades with any questions: hetty.blades@coventry.ac.uk  

  For the notes and references please see: https://movingonline.coventry.domains/notes-and-references/

Hsieh on "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner on the Elusive Boundary Between Intellectual Property Forms No One Ever Talks About @timhsiehiplaw @OCULAW

Timothy T. Hsieh, Oklahoma City University School of Law, has published "The Past Is Never Dead, It's Not Even a Trademark or Copyright": William Faulkner and The Elusive Boundary Between Intellectual Property Forms No One Talks About. Here is the abstract.

In the 2013 federal case of Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc., et al., Case No. 3:12-cv-100-MPM-JMV (N.D. Miss. July 18, 2013), the Estate of William Faulkner sued Sony Pictures due to Woody Allen’s film Midnight in Paris having a character refer to the Faulkner quote “The past is never dead. It’s not even past” from Requiem for a Nun. In the suit, the Faulkner Estate alleged copyright infringement as well as trademark appropriation under The Lanham Act. A 2012 suit also occurred where The Faulkner Estate sued aerospace defense technology company Northrup Grumman for using the same quote in a 2011 advertisement placed in The Washington Post. See Faulkner Literary Rights LLC v Northrop Grumman. Corporation and the Washington Post Company, No 3:12-cv-732-HTW-LRA (S.D. Miss. Oct 26, 2012). Both cases not only dealt with trademark law, the copyright law doctrine of fair use and also de minimis usage of copyrighted material, but also the fascinating quandary of where one draws the line between a copyright and a trademark, e.g., when does a slogan or title become too long to trademark and proper to copyright and vice-versa, when does a copyrightable line of literary text become too short to copyright and proper to trademark? This boundary between a copyright and a trademark is one seldom analyzed by the legal literature out there, and almost overlooked or even dismissed as a simplistic concept not worth a deeper look. However, these cases involving the infamous Faulkner line compel the conclusion that the difference between a trademark and a copyright might be a much more complex determination to make. By analyzing these two cases, the history of cases differentiating a trademark and a copyright or the “trademark-copyright” boundary, and the potential usage of similar lines from Faulkner’s work, this paper will discuss how one of William Faulkner’s most enduring and timeless lines pushes the boundaries of a cutting-edge but little analyzed concept in intellectual property law.

Download the article from SSRN at the link.

Hrdy and Brean on The Patent Law Origins of Science Fiction @CamillaHrdy @AkronLaw

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project, and Daniel Harris Brean, Independent Scholar, have published The Patent Law Origins of Science Fiction.

This article uncovers the role of patents and patent law in shaping the literary genre of science fiction. Using unpublished primary sources, the article examines the views of Hugo Gernsback, the so-called “father” of science fiction. Gernsback, who was himself an inventor and frequent patentee, is known for his firm conviction that works of science fiction can give rise to the technologies of the future. This article reveals that, in espousing this thesis, Gernsback drew an explicit analogy between the inventions described in science fiction and the inventions described in patents. The culmination of Gernsback's theory was his proposal, in 1952, that “Provisional Patents” should be available for “feasible and technically sound” inventions depicted in works of science fiction—even if they were not yet possible to implement in practice. The history of patent law’s role in shaping science fiction has been largely ignored, or derided, by the science fiction community. It is wholly unknown to the patent law community. Many will find Gernsback’s proposal deeply problematic from the perspective of patent policy. But investigating Gernsback’s views, and understanding his justifications for them, generates many surprising insights about patent law and policy, and about the genre of science fiction itself. Science fiction’s patent law origin provides a new and different justification for science fiction’s role in society. According to Gernsback, and other adherents of his philosophy like Arthur C. Clarke, science fiction is not just a form of entertainment. It is a legitimate component of innovation policy. Without science fiction, society would not have many of the innovations that surround us today—or at least would not have obtained them so quickly. This is extremely similar to the role that many commentators ascribe to patents. Gernsback’s philosophy of science fiction may seem naïve. But these beliefs, and their underlying reliance on patent theory, were nonetheless highly influential. They shaped the genre of science fiction as we know it. The patent law community, and not just those of us who are science fiction fans, also has a lot to learn from Gernsback’s views. The historical connection between science fiction and patent law forces us to take a hard look at one of patent law’s most deeply-held principles—that patents are only available for inventions that are currently possible. On the one hand, Gernsback’s extreme position reaffirms why this principle is important. It should not be easy to control the future. The law wisely incorporates doctrines that make it hard to patent inventions that are still so many years away that we call them mere science fiction. At the same time, however, Gernsback’s insistence that science fiction is important for innovation sheds light on the countless “non-enabled,” totally “incredible” visions of the future that patent law leaves out. Science fictional inventions, precisely because they are not yet possible, can impart useful information, and inspire future inventors, in ways that patents cannot. One of the most important differences between science fiction and patents, in fact, is that people actually read science fiction, and are deeply moved by it. Gernsback, as usual, put it best. Science fiction imparts “knowledge, and even inspiration, without once making us aware that we are being taught.” It “fires the reader’s imagination more perhaps than anything else of which we know.” Very few people can say that about reading patents. This matters. If Gernsback was right—and as we show, in some cases he certainly was—then science fiction has inspired some of the inventions we have today. And it did so precisely because it failed patent law requirements like enablement and operable utility, describing inventions which the author could imagine but had no idea how to put into practice. We cannot perform a meaningful empirical assessment of science fiction’s impact on innovation. But we do have evidence that some inventions, and many patents, were influenced to some degree by science fiction.

Download the article from SSRN at the link.

Tehranian on The Subject Strikes Back: Intellectual Property, Visual Pleasure & Resistance in the Arts @johntehranian @SouthwesternLaw @AmULRev

John Tehranian, Southwestern Law School, is publishing The Subject Strikes Back: Intellectual Property, Visual Pleasure & Resistance in the Arts in volume 71 of the American University Law Review. Here is the abstract.

The metaphor of the hunt pervades photography, exhorting those behind the camera to load, aim and shoot. But having long served as the proverbial prey whose ‘captured’ images form the subject matter of so many works, subjects have begun to strike back. From Jay-Z and Emily Ratajkowski to Taylor Swift and Naruto the crested macaque, subjects are pushing for greater control over the exploitation of their personae and representation of their bodies. The Subject Strikes Back identifies this significant moment and critically assesses the legal landscape related to subject rights, with a particular emphasis on the copyright, trademark and right-of-publicity issues at play. Bookended with two case studies from the world of modern art—the legal controversies surrounding Richard Prince’s New Portraits series and Andy Warhol’s iconic serigraphs of pop star Prince—the Article surveys the limited protection afforded to subjects under current copyright, trademark and right-of-publicity law, ascertains the key issues (including those related to race, gender and socioeconomic status) at stake in any potential expansion of subject rights, highlights obstacles presented by the extant jurisprudence, and analyzes the prospects for change. Although sympathetic to the plight of subjects, the Article raises significant concerns about attempts to vindicate their interests through right-of-publicity and trademark law. Specifically, the Article posits that the protection of subject rights through publicity rights presents underappreciated problems related to copyright pre-emption, the blurry line between actionable advertising/merchandising uses of a likeness and non-actionable artistic uses (a distinction that carries significant implications for expressive freedoms) and gamesmanship and forum shopping in exploiting the patchwork nature of publicity rights protected at the state level. Meanwhile, although subjects have enjoyed some limited success wresting control over the use of their images through the Lanham Act and related unfair competition laws, the public policy concerns animating federal trademark doctrine make such reliance problematic, especially in light of incongruity and unpredictability of the relevant jurisprudence governing threshold issues of trademarkability and likelihood of confusion and the serious interference that subject-friendly holdings in trademark law can pose to the exercise of exclusive rights reserved for copyright holders. In the end, the prospects for vindication of subject rights may be best served if copyright law expressly recognized the potential for authorial interests for subjects—an outcome currently precluded by copyright’s authorship-as-fixation doctrine. The Subject Strikes Back therefore highlights the significant work our intellectual property laws still have to do to properly align creative contributions with the reward of rights, recognize the economic value and dignitary interests of subjects and balance the rights of fixers and users with the rights of subjects.

Download the article from SSRN at the link.

Vats and Keller on Critical Race Theory as Intellectual Property Methodology @raceip @FAMULaw @PittLaw

Anjali Vats, University of Pittsburgh School of Law and Department of Communication, and Deidre A. Keller, Florida A & M University College of Law, have published Critical Race Theory as Intellectual Property Methodology in Intellectual Property Research (Irene Calboli and Maria Lilla Montagnani, eds., Oxford University Press, 2021). Here is the abstract.

This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In accomplishing the latter, we use India's commitments to access to knowledge in the recent Delhi University copyshop case and controversy over Novartis's drug Gleevec to show how CRT's central insights can open possibilities for reading intellectual property law with attunement to structures of racial power.

Download the essay from SSRN at the link.

Junde on Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar India @JIPLP

Akanksha Jumde, University of Tasmania Faculty of Law, is publishing Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar, India in the Journal of Intellectual Property & Practice (2022). Here is the abstract.

Using case studies of two of the oldest art forms practiced in Bihar, India, this article analyses challenges relating to the implementation of the law on Geographical Indications (GIs) in India, to better protect the rights and the craft of its most important stakeholders: the artists. This article is also a critique on the application of the current Indian GI regulatory framework to its traditional handicraft sectors. The findings derived with reference to handicrafts are also relevant to the broader question of whether GIs can protect the traditional knowledge or indigenous knowledge of the stakeholders. This article finds that lack of provisions related to quality control and monitoring mechanisms, discrepancies in the definition of ‘Goods’ and ‘GI’, the anomalous concept of authorized users and difficulties in the application for registration requirements, impose serious limitations. We, therefore, suggest that the extant regulatory framework needs to be strengthened by adequate support by the government to help artists to promote and market their work, and establishment of adequate regulations for quality control, post-GI registration.

Download the article from SSRN at the link.

Forthcoming, June 2022: Jessica Silbey, Against Progress: Intellectual Property and Fundamental Values in the Information Age (2022) @JSilbey @stanfordpress @BU_Law

Forthcoming: Jessica Silbey, Professor of Law, Boston University, is publishing Against Progress: Intellectual Property and Fundamental Values in the Information Age (Stanford University Press, 2022). Here from the publisher's website is a description of the book's contents.

When first written into the Constitution, intellectual property aimed to facilitate "progress of science and the useful arts" by granting rights to authors and inventors. Today, when rapid technological evolution accompanies growing wealth inequality and political and social divisiveness, the constitutional goal of "progress" may pertain to more basic, human values, redirecting IP's emphasis to the commonweal instead of private interests. Against Progress considers contemporary debates about intellectual property law as concerning the relationship between the constitutional mandate of progress and fundamental values, such as equality, privacy, and distributive justice, that are increasingly challenged in today's internet age. Following a legal analysis of various intellectual property court cases, Jessica Silbey examines the experiences of everyday creators and innovators navigating ownership, sharing, and sustainability within the internet eco-system and current IP laws. Crucially, the book encourages refiguring the substance of "progress" and the function of intellectual property in terms that demonstrate the urgency of art and science to social justice today.

Gold on Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions

Sara Gold, Eastman IP, has published Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions in The Federal Lawyer, May/June 2021. Here is the abstract.

This article, published in the May/June 2021 edition of The Federal Lawyer, examines the jurisprudential and legislative history of copyright fair use in relation to its current status in American copyright law as an "affirmative defense." Fair use as an affirmative defense is relatively ingrained into modern U.S. copyright law, even though the Copyright Act does not use this label. Because fair use is treated as an affirmative defense, defendants wholly bear the burdens of production and persuasion on all four fair-use factors articulated in Section 107 of the Copyright Act. However, this full allocation to the defendant may reflect an imbalance between the rights of copyright holders and the rights of the public. These considerations are especially evident when it comes to summary judgment, which already places the onus on the defendant to eliminate issues of fact, and when it comes to the market harm factor, which requires the defendant to prove the absence of harm to markets that not it, but the plaintiff, owns. The Copyright Act's lack of specificity as to the procedural posture of fair use could support a currently untapped judicial flexibility when it comes to approaching fair use from this standpoint. As this article concludes, a procedural approach that takes into account the parties' relative access to evidence and information could bring copyright protection and copyright exception into better balance, furthering the goal of copyright law to foster creativity.

Download the article from SSRN at the link.

Hadley on Whitmill v. Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law @DrMarie_IP @uonlawschool

Marie Hadley, Newcastle Law School, University of Newcastle (Australia), has published Whitmill v Warner Bros. and the Visibility of Cultural Appropriation Claims in Copyright Law at 42 European Intellectual Property Review 223-229 (2020). Here is the abstract.

The Māori-inspired tattoo at the heart of the copyright infringement case of Whitmill v Warner Bros. has attracted allegations of cultural appropriation in Aotearoa/New Zealand. An examination of the Māori cultural appropriation claim that surrounds the tattoo and its invisibility throughout the Whitmill v Warner Bros. legal proceedings, shows how the legal system does not receive Indigenous cultural claims over the cultural imagery and arts styles that inspires outsider imagery as an intellectual property interest.

Download the article from SSRN at the link.

Hrdy and Brean on Enabling Science Fiction @CamillaHrdy @AkronLaw @yaleisp

Camilla Alexandra Hrdy, University of Akron School of Law; Yale University Information Society Project; and Daniel Harris Brean are publishing Enabling Science Fiction in the Michigan Telecommunications and Technology Law Review, Science Fiction and the Law Symposium Issue (2021). Here is the abstract.

Patent law promotes innovation by giving inventors 20-year-long exclusive rights to their inventions. To be patented, however, an invention must be “enabled,” meaning the inventor can actually describe it in enough detail to teach others how to make and use the invention at the time the patent is filed. When inventions are not enabled, like a perpetual motion machine or a time travel device, they are derided as “mere science fiction”—products of the human mind, or the daydreams of armchair coots, that are not suitable for the patent system. This Essay argues that, in fact, the literary genre of science fiction has its own unique—albeit far laxer—enablement requirement. Since the genre’s origins, fans have demanded that the inventions depicted in science fiction meet a minimum standard of scientific plausibility. Otherwise, the material is denigrated as lazy hand- waving or, worse, “mere fantasy.” Taking this insight further, the Essay argues that, just as patents positively affect the progress of science and technology by teaching others how to make and use real inventions, so too can science fiction, by stimulating scientists’ imagination about what sorts of technologies might one day be possible. Thus, like patents, science fiction can have real world impacts for the development of science and technology. Indeed, the Essay reveals that this trajectory—from science fiction to science reality—can be seen in the patent record itself, with several famous patents tracing their origins to works of science fiction.

Download the article from SSRN at the link.

Corcos on Three Ways of Looking at Law and Popular Culture @LSULawCenter @IRPI_Paris_II

Christine A. Corcos, Louisiana State University Law Center, has published Three Ways of Looking at Law and Popular Culture in Propriete Intellectuelle et Pop Culture: Nouveaux enjeux, nouveaux defis 9 (Actes du colloque: PI et pop culture) (Actes du colloque des JUSPI) (IRPI, 2020). Here is the abstract.

In 1989 the Stanford University Law School professor Lawrence Friedman offered a definition of “popular legal culture.” In an often-cited article, he wrote that, “In the first place, legal culture acts as an intervening variable, a mechanism for transforming norms of popular culture into legal dress and shape. In the second place, legal and popular culture, as images of each other, help explicate and illuminate their respective contents”. He notes that law and culture interact in two ways. Law is outward-looking; it depends on and interacts with the society from which it springs. At the same time it shapes that society. We can and do also talk about at least two current and differing uses of law and popular culture in legal education. We can use law and popular culture to teach legal principles. This use makes legal doctrine entertaining and accessible. We can also dig for the messages it gives us about the interaction of law and society. This second method requires us to interact with the texts of both law and popular culture. Currently in legal education we can and do examine at law and popular culture in both of the ways Friedman identifies. I suggest that we can identify and should examine a third intersection of law and popular culture that scholars have begun to study, that I suggest we should formally acknowledge as a part of law and popular culture studies. This third intersection is the actual trans-formative effect or trans-formative turn that popular culture and law have on each other. I would suggest both that certain types of intellectual property studies and certain types of activity fall into this category. One example is law’s response to the creation of fan fiction and of fan use of copyrighted and trademarked materials that force a response from the rights holders, or force fans to cease a particular activity because the rights holders refuse permission to proceed. We have many examples of the legal responses and changes in norms that illustrate these interactions. What we don’t yet seem to have in the general theory of law and pop culture is a definition for this third intersection. It may be that this third intersection is now most obvious in intellectual property law, perhaps because of the accessibility and spread of technology as well as the overwhelming importance of social media in our lives today. It exists in other areas of law as well, for example in family law, in criminal law, in privacy law, and has for some time. I would suggest that this intersection creates the possibility for the working out of the tensions between law and culture, as the public through pop culture identifies how the law works, what the law is, and then reacts to the law, makes demands on the law, and in some cases, forces changes in the law.

The full text is not currently available from SSRN.

Brennan on Publication in the History of Patents and Copyright: Harmony or Happenstance?

David J. Brennan, University of Technology Sydney, Faculty of Law, has published Publication in the History of Patents and Copyright: Harmony or Happenstance? in Across intellectual property: essays in honour of Sam Ricketson edited by Graeme Austin, Andrew Christie, Andrew Kenyon, Megan Richardson (Cambridge University Press, 2020). Here is the abstract.

Aspects of patent and copyright law might be better understood by a greater appreciation of a shared history between patent and copyright law. Such an appreciation leads to the recognition that, ostensibly, the resolution of the question of literary property could have sparked a reshaping of patent doctrines in the late 18th Century, and that in turn those patent doctrines could have had a reciprocal influence upon an important aspect of English copyright law of the 19th Century. While these connections are speculative, when patent history and copyright history are put in overlay, the connections emerge as plausible ones.

Download the chapter from SSRN at the link.

Swanson on Race and Selective Legal Memory: Reflection on "Invention of a Slave" @KaraWSwanson @ColumLRev

Kara W. Swanson, Northeastern University School of Law, is publishing Race and Selective Legal Memory: Reflections on Invention of a Slave in volume 120 of the Columbia Law Review. Here is the abstract.

In 1858, the United States Attorney General issued an opinion, Invention of a Slave. Relying on the Supreme Court’s recent declaration in Dred Scott v. Sandford that African Americans were not citizens, he created a formal racial barrier to the patent system, declaring inventions by all African Americans, enslaved and free, unpatentable. Within a few years, legal changes that overruled Dred Scott and abolished the law of slavery rendered the opinion obsolete. This brief opinion became, as far as lawyers and legal scholars were concerned, forgotten. Unlike many overruled opinions dropped from the legal canon, however, Invention of a Slave and the associated story of an enslaved blacksmith who invented an innovative plow have been continuously remembered. Women and men committed to fighting the legacy of slavery maintained both in the collective memory of those seeking full civil rights for African Americans. Our legal forgetting was an act of persistent blindness to their efforts and publications. This Essay excavates the generations of African American writers and activists who have worked to remember the opinion and argues that legal forgetting has carried a cost. Their remembering was not casual storytelling but rather deliberate, strategic, and political. I offer Invention of a Slave as a case study of race and selective legal memory, tracing an unacknowledged color line that demarcates legal memory and the costs of that line. Because of our forgetting, the opinion appears as an obscure part of the antebellum past. When we understand their remembering as a political act, we can see what they have always seen: There is a connection between the patent system and the legal and social definition of citizenship. At a time when the boundaries of citizenship and the contours of who is worthy to be considered an American are hotly contested in ways related to race and ancestry, learning from those who remembered Invention of a Slave offers lessons that link this piece of the past to our present and future, with implications both for the patent system and for our on-going conversation about race, equality, citizenship and the laws that affect them.

Download the article from SSRN at the link.

Scardamaglia on A Legal History of Lithography @abscard @GriffLawSchool

Amanda Scardamaglia, Swinburne Institute of Technology, has published A Legal History of Lithography at 1 Griffith Law Review 1 (2017). Here is the abstract.

Charles Troedel (1835–1906) was a master printer and lithographer and founder of the firm Troedel & Co. He was also the forgotten face behind the production of much of Australia’s earliest existing and surviving advertising material including posters, labels and other visual ephemera. These works, many of which were registered for colonial copyright and trade mark protection, provide a graphic history of nineteenth-century Australia, speaking to the prevailing state of commerce, culture, social trends and colonial norms. Inexplicably, Troedel’s role in the production of this capsule history has been overlooked. The legal dimension to this history and the relationship between lithography and intellectual property law has also been overlooked – in terms of the stylistic evolution of commercial signifiers and the legal mechanisms which served to protect these graphical expressions. This article uses Troedel’s archive of lithographs as the proxy through which to examine how lithography facilitated and shaped the production of early copyright and trade marks in Australia and more specifically, how lithography, as the technological arrangement mediating early colonial Australian society, was responsible for transforming advertising in nineteenth-century Australia, and the legal categories under which such advertising was defined.

Download the article from SSRN at the link.

McCutcheon on The Misconception of Literary Characters as Copyright Works @UWALawSchool

Jani McCutcheon, University of Western Australia Law School, is publishing Works of Fiction: The Misconception of Literary Characters as Copyright Works in the Journal of the Copyright Society of the USA. Here is the abstract.

This article critiques US jurisprudence, commentary and industry practice suggesting that fictional literary characters constitute separate copyright works distinct from the literary works in which they are situated. The scholarship on this jurisprudence tends to lament the ambiguity of the courts’ character delineation standards, and the inconsistency of court decisions applying them, but rarely, if ever, questions the legitimacy and coherence of the character-as-work doctrine. The paper will argue that the doctrine is fundamentally misconceived. It evolved from the fragile foundation of a casual obiter comment in an infringement analysis and morphed confusedly into an entrenched, though misunderstood, principle. The article will explain the unstable foundation of the character-as-work doctrine with reference to the concept of a ‘work’ in copyright law and its relationship to the fixation doctrine. The article argues that the nature of literary characters precludes them from being clearly and consistently identified and thus perceptible in a copy for the purposes of fixation. It explains how the character-as-work doctrine ignores the nature of literary characters; confuses subsistence standards; fosters illusory rights, rights hyperextension and lazy infringement analyses; and encourages character ‘evergreening’ beyond the copyright term.

Download the article from SSRN at the link.