I am very excited to announce that this weekend, Marquette will host the First Annual Mosaic Conference: Diverse Voices in IP Scholarship, co-sponsored by Marquette University Law School and Institute for Intellectual Property and Social Justice, and with additional funding provided by William Welburn, Associate Provost of Diversity and Inclusion, Marquette University. The goal of this first Mosaic Conference is to bring together intellectual property scholars, policy makers, and activists of diverse and multicultural backgrounds and perspectives to explore socially progressive and non-traditional ideas in IP law, policy, and social activism. The Conference begins with a Reception and Dinner tonight and will conclude on Sunday morning.
Throughout the global community, intellectual property regimes play a critical role in human development, socio-economic empowerment, and the preservation and promotion of social justice. Many IP regimes, however, have been structured or interpreted to reflect only the interests of an entrenched status quo; socially cognizant IP theses are often ignored or rejected as tangential or antithetical to commoditization-centered theories of IP protection, often impeding broader social utility concerns including equitable access to IP protection and output and stimulating innovation. Through the First Annual Mosaic Conference, IP scholars and practitioners will come together with policy makers, social activists, and others to present ideas for progressive and activist-oriented scholarship for assessment as to social relevance, legal significance, and doctrinal integrity. Continue reading “Marquette Law School to Host First Annual Mosaic Conference”
I have to say, I found my first year of law school (at Duke — go Blue Devils!) like getting off the plane after a twenty-four trip to South Africa: profoundly disorienting. Current 1Ls, I hope your orientation group was better than mine (I called my Mom and cried), I hope that you understand your reading somewhat, and I hope that you have gone out a least once with the one nice person in your orientation group. So, now that stuff is over, what else do you need to know?
I divide this up into two sections: How to Orient Yourself as a Human and How to Orient Yourself as a Law Student.
How to Orient Yourself as a Human
1. It gets better. Well, kind of better, in a relative sense of the word: You will understand what your teachers are saying at some point. You will know how to write a legal memorandum well. You will be able to speak clearly when a judge is impatiently looking at you. It may not happen your first year, but it will happen. Continue reading “What I Wish I Had Known When I Started Law School, Part II: (Dis)Orientation”
Yesterday, I posed the following questions: What is identity? As we define the right, should we only protect a person’s authentic identity (name, likeness, voice, etc.), or do we protect that constructed identity? Are Madonna’s many personas as valid as Janet’s one? These questions of authentic and constructed personas are still very much an issue in today’s video culture. Our current great video stars, Lady Gaga and Beyonce, have often played with this question of authenticity versus construction.
In fact, I would argue that Beyonce and Gaga can be seen as “baroque” versions of the authentic Janet and the constructed Madonna. Beyonce heightens the authentic tradition in her videos. For example, in the video “Crazy in Love” she sings, standing next to the man who would become her husband, Jay-Z, about how much she loves him. Like Janet, Beyonce uses her given name. Lady Gaga, very obviously, extends the constructed tradition. In the video for “Bad Romance,” Lady Gaga changes personas fourteen times in one video. Lady Gaga makes us call her Lady Gaga.
Lately, however, Beyonce and Lady Gaga themselves have sought to confuse these boundaries, between the authentic and constructed, through their two videos “Videophone” and “Telephone.” Continue reading ““Rah-Rah-Ah-Ah-Ah, Roma-Roma-Ma-Ma, Gaga, Ooh-La-La”: Persona, Authenticity, and the Right of Publicity Now”
Summer is here and, much to my joy, videos are back! The confluence of Lady Gaga, Glee, OK GO, and You-Tube has reminded us of the great art form of the 1980s, the video, a four- to five-minute presentation of a lip-synched musical song in which dance-choreography was more often than not a crucial element. The video had elements of a copyrighted work (under Section 102 of the Copyright Act, it can comfortably be classified as audiovisual work), but more importantly than that, the video served as an extended commercial to prompt the viewer to go out and purchase the artist’s work.
The video, though, at its greatest heights, was used by its more skilled practitioners to build and shape the individual artist’s persona beyond the popularity of any particular song. This often had the effect of strengthening the long-term commercial value of an artist’s work. I think, often, of the careers of Cyndi Lauper and Madonna as demonstrating the importance of this particular principle. Cyndi had the singing and writing chops (“Time After Time,” anyone?), but Madonna used the video art form to its maximum extent, making relevant her persona for over twenty-five years (yes, people, twenty-five years).
Thus, the video also invokes a more neglected sister of copyright, the right of publicity, which broadly protects the commercial value of a person’s identity. Continue reading ““Greta Garbo, and Monroe, Dietrich and DiMaggio”: Persona, Authenticity, and the Right of Publicity Then”
The citizenry of the United States awoke to shocking news this morning . . . the United States Patent and Trademark Office has rescinded its controversial continuation application rules package (what was that about a Nobel Peace Prize?). The link to the press release is here.
These controversial rules—which sought to limit the number of continuation applications, a type of patent application that claims priority back to an earlier filed application—had prompted vociferous opposition from the patent community because it would limit strategic choices related to patent prosecution. Indeed, I derived the title of this blog from comments posted today on the Patently-O Blog.
I had long threatened a blog post that advised newly appointed Commissioner Kappos what he should do in response to the issues posed by Tafas. Conveniently, Commissioner Kappos actually undertook the strategy that I would propose—rescinding the rules, filing a motion to dismiss the case, while at same time seeking to vacate the federal district-court decision (a motion joined by one of the plaintiffs, GlaxoSmith Kline). As I have discussed in an article published last year (First Things, First: A Principled Approach to Patent Administrative Law, 42 John Marshall L. Rev. 29 (2008)), the decision of the district court was filled with a number of mistaken premises about the nature of substantive notice-and-comment rulemaking in the patent administrative state.
Continue reading “Our Long National Patent Nightmare is Over? Tafas v. Kappos and the New Patent Administrative State”
The thirteenth volume of the Marquette Intellectual Property Law Review (Summer Edition 2009) has recently been published and is now available. Our outgoing editor-in-chief, Melissa Benko and her excellent board have done an outstanding job once again.
Highlights of the issue include:
* Jessica Litman’s wonderful and innovative Nies lecture on current copyright reform;
* Interesting articles by Vanessa Rollins, Amy Tindall, Dmitriy Vinarov (and me, but I am not wearing that hat today!) on diverse subjects such as trademark fair use, the impact of the Seventh Amendment on patent litigation, and the re-thinking of patent fraud enforcement in light of current congressional reform;
* Our initial entry in the Emerging Scholars Series, which highlights works of intellectual property scholars in the first three years of their career, by Marketa Trimble, on cross border injunctions in the United States; and
* Our Annual Intellectual Property Law Review Banquet Speech, by the General Counsel of the Subway Advertising Trust Fund, Mary Jane Saunders, on her practitioner’s life in copyright.
In particular, I want to highlight the scholarship of two our students—Renee Metzler and Kevin Rizzuto—who in their comments, undertook innovative scholarship on grace periods in patent law as well as an empirical look at fixing continuation application at the United States Patent and Trademark Office.
I look forward to the work of incoming Board in the new school year!
I was going to write a very compelling piece on What Commissioner Kappos Should Do About Tafas (which I care very, very much about in my scholarship and which is actually more important than this particular blog post), but I got distracted again. This time, I was mourning the death of John Hughes, the filmmaker behind Sixteen Candles, The Breakfast Club, Pretty in Pink, and Some Kind of Wonderful.
I love John Hughes. I do. I almost missed Hurricane Katrina descending on Oxford, Mississippi, because there was a John Hughes retrospective on the same day. I had more important things to do than pay attention to rather persistent hurricane warnings, as well as my sister and my Grandma Rosa (who were all kind of suggesting to me that a major weather crisis was heading my way). Continue reading “The Eighties and The Midwest: Who We Think We Are”
Irene’s recent post on why we love intellectual property gets at its certain power–its ubiquity in everyday life. The recent death of Michael Jackson speaks to that particular ubiquity. What was necessarily powerful about his death was that for kids of a certain generation (maybe if you were born between 1972 and 1980?), his music served, as the pundits keep saying over and over, as the “soundtrack” of our lives. I remember one slumber party where all of the Michael Jackson videos played over and over and over for 24 hours (those poor parents). The summers of 1983 through 1985 were consumed in the great debate (forget US v. USSR) of the middle 1980s: who was better, Michael Jackson or Prince! I was a stone cold Prince fan, who marshaled my arguments as if I was getting ready for battle (Purple! Let’s Go Crazy!, Purple!). I was usually in the minority in that one, as no one could top Michael’s videos (did Prince dance with zombies (No!), could Prince moonwalk (No!), could Prince rock that awesome red jacket (No!)).
This “great” debate of the Eighties morphed, though, in the Nineties, into a more interesting debate about, strangely enough, the performance artist’s relationship to copyright. Continue reading “Michael Jackson v. Prince: Thinking About Copyright, Intellectual Property, and the Age of the Eighties”
This is an unusual blog post for me in that for once I am playing it straight with Michael’s request of the month. Just one case will be discussed! This, however, is not through any intentional strategy on my part. To use a colloquial phrase “the pickings were slim” since the Court of Appeals for the Federal Circuit hears most patent-related matters. To say the choice was “slim,” however, does not mean there was no fertile ground, and so I am selecting County Materials Corp. v. Allan Block Corp., 502 F.3d 730 (7th Cir. 2007), as my “favorite case.”
In County Materials, the Seventh Circuit, among other items, analyzed whether County Materials (a Wisconsin corporation) could sustain a claim of “patent misuse” against Allan Block (a Minnesota corporation). The case is an interesting one because County Materials is a great example of what, in her opinion, Judge Diane Woods (awesomely) refers to as a “non-patent, patent case” that falls within the jurisdiction of the regional courts of appeals, rather than the Federal Circuit, because the dispute before the court was not one where federal patent law creates the cause of action or is necessary to resolve the circumstances of the case. Continue reading “Favorite Wisconsin/Seventh Circuit Cases: A “Non-Patent, Patent” Case”
This is a vintage Murray post in that I take the Question of the Month (favorite book or movie about the law) and, as I like to say, “tweak it” (and, as Michael likes to say, “ignore it”). I am selecting two books, Ernest J. Gaines’ A Lesson Before Dying and Nelson Mandela’s A Long Walk to Freedom, and one television series, The Wire. I choose them because each examines what I consider a key question: how individuals maintain their humanity as they negotiate potentially unjust legal systems.
A Lesson Before Dying taught me that lawyers have to be advocates for their clients’ humanity. Continue reading “Particular Humanities: A Lesson Before Dying, A Long Walk to Freedom, and The Wire”
So, I have been thinking about a lot of my favorite “law” professor. Rick and David‘s wonderful posts on their favorite law professors were, of course, inspirational. I am, however, much more indecisive than Rick and David, so I may try to sneak in a little more variety than just “one” law professor (the all powerful Michael may police me for straying a bit from the post of the month!). I actually am picking five (!) because I think about the lessons they taught me everyday:
James Cox, Duke University School of Law: Professor Cox, bar none, was the best teacher I had in law school. I remember being engaged and excited by Business Associations and White Collar Crime, like no other classes. As a student, when you are engaged by agency and partnership law, then you know the teaching is good. Why was I engaged? First, Professor Cox made business law seem relevant by bringing passion and commitment to his subject. Second, he encouraged us to talk and debate in class. Sometimes, in law school, everyone gets really quiet and it gets boring. He never countenanced that. So, class was a bit of an intellectual scrum, and thus, a little messy, and ultimately, quite good. And such classes prepared me for all those things in practice, because what is law school and its ultimate practice, but an intellectual scrum?
Continue reading “Appreciating Our Professors: That “One” Law Professor Thing is “Optional,” Right?”
So, to take up the question I asked yesterday, what does “measured urgency” look like? I would offer a few suggestions. First, an independent commission needs to undertake legislative revision of the Patent Act. The Patent Act of 1952 was an incredibly well-written, concise act. Current legislation has attempted to graft new procedures onto the Patent Act, which would have the consequence of creating a deeply incoherent act. The new President should appoint a commission of fairly neutral persons to sit down and decide what will become the Patent Act of 2009, an act that will serve as the framework for the next 50 years of patent law. Such an act should take into account the significant changes that have impacted the patent regime in the 21st century: the increase in agencies regulating the Patent Act, such as the ITC and the FDA; the need to change the role of the USPTO; and the increasing harmonization of patent law in the international environment. The commission would also increase the legitimacy of the process. Current patent reform is simply not working. Previous patent reform has often been seen as another cynical attempt by powerful chairpersons to rewrite patent law on behalf of their most powerful donors. These deeply cynical efforts have been accompanied by a failure to hold transparent and representative hearings. A commission would have the benefit of having the ability to channel interest group action in a positive way through open hearings and submitted comments. Such a commission would also have the ability to stay above what has proven to be a rugby-like scrum on the part of lobbyists to get the narrow best interest for their clients. I am all for an active and healthy self-interest on the part of the interest groups, but there must be a productive way to channel those interests in a way that serves patent law better.
Continue reading “Priorities for the Next President: An Urgent, Measured Innovation Policy (Part II)”