September 16, 2016

A New Look at Design Law

Design is the currency of modern consumer culture and increasingly the subject of intellectual property claims. Apple, the world's biggest company, owes its value largely to design. Notably, where courts once rebuffed Apple's claim to own a popular graphical user interface, today design-related claims lead to billion dollar judgments in Apple's favor. Global litigation between Apple and Samsung over the design of smartphones and tablets has been a watershed development, bringing to light the enormous importance of "look and feel" as both a driver of market value and a subject of intellectual property protection. Today, design - which includes everything from shape, color, and packaging to user interface, consumer experience, and brand aura - is attracting unprecedented attention. Indeed, the Supreme Court will soon decide two cases concerning the intricacies of design protection, one involving design patent damages and the other copyright in cheerleading uniforms.

But the law of design is confused and confusing. It is splintered among various doctrines in copyright, trademark, and patent law. Indeed, while nearly every area of IP law protects aspects of design, the law has taken a siloed approach, with separate disciplines developing ad hoc rules and exceptions. To make matters worse, different disciplines within IP use similar terms and concepts - functionality, consumer confusion - but apply them in wholly different, even contradictory ways. In the Apple v. Samsung litigation, for example, the Federal Circuit found Apple's trade dress not protectable because it is functional in numerous ways. But then the court found the very same designs protectable under design patent law, which only protects non-functional elements, because design patent doctrine defines functionality differently. This paradoxical result should give pause. Although Congress and the courts may appear to have carefully calibrated protection within each separate doctrinal area, they may not have adequately considered the simultaneous application of other types of protection. Without an overarching understanding of and approach to design protection, the cumulative effect of overlapping exclusive rights is likely to lead to over protection. Scholarship, too, has focused on design protection in distinct areas of law.

In a new paper called "The Law of Look and Feel," forthcoming in volume 90 of the Southern California Law Review in 2017, Professor Peter Lee and I seek to provide the first comprehensive assessment of the regulation of consumers' aesthetic experiences in copyright, trademark, and patent law-what we call "the law of look and feel." We canvas the diverse ways that parties have utilized (and stretched) intellectual property law to protect design in a broad range of products and services, from Pac- Man to Louboutin shoes to the "feel of the '70s" captured in Marvin Gaye's music, from the décor of Mexican restaurants to Apple's technologies of "pinch to zoom," "bounce-back" and "slide to unlock." In so doing, we identify existing doctrines and principles that inform a normatively desirable "law of look and feel" that provides graduated protection for design. In particular, we reveal that most areas of IP law have developed limiting principles that usefully cabin protection of "look and feel" in response to evolving standardization, consumer expectations, and context. This is occurring largely without forethought, cobbled together as parties seek to expand design protection, on the one hand, and articulate limitations and exceptions, on the other. We distinguish this implicit, normatively desirable "law of look and feel" from the manner in which some courts have expressly used the term "look and feel" to justify expansive intellectual property protection of design. Going further, we argue that the new enclosure movement of design, if not comprehensively reformed and grounded in theory, can in fact erode innovation, competition, and culture itself.

We define "look and feel" broadly. To begin, we adopt a definition that accords with how design theorists conceptualize design writ large, which is more capacious than how courts have used the term "look and feel" in judicial opinions. "Look and feel," as we understand it, both harkens back to the longstanding philosophical study of "aesthetics" as well as includes the contemporary conception of design in the emergent liberal art of "design thinking." In his Lectures on Aesthetics, Hegel referred to aesthetics as "the science of sensation, of feeling."8 Today, commerce has come to appreciate the profound importance of aesthetics for market success. "Aesthetics," Virginia Postrel writes, "is why you buy something." As with Apple's iPhone, look and feel blends beauty and utility as well as integrates form and function. At the level of artifact, look and feel includes elements such as shape, color, style, layout, packaging, and overall visual appearance. At a more conceptual level, it encompasses intangible qualities such as modes of interaction, aesthetic experience, brand aura, and zeitgeist.

Adapting familiar principles to a novel context, we argue that exclusive rights in look and feel that are not sufficiently attentive to standardization, consumer expectations, and context may undermine innovation and cultural cohesion. In a variety of ways, intellectual property law is skeptical of strict exclusive rights over standards, whether they are expressive, linguistic, or technological. Copyright does not allow exclusive rights in stock and necessary expressions, trademark does not extend to generic words embodying linguistic conventions, and patent law mitigates exclusive rights on technological platforms engendering significant social reliance. In similar fashion, we develop a conception of look and feel as zeitgeist - an aesthetic or cultural standard that objectively expresses the spirit of an age. Extending principles of intellectual property law, we argue that when particular forms of look and feel become our lexicon and central to our shared meaning and understanding of a certain time and place, they should come to belong to the culture at large. As we show, doctrines from copyright (scènes à faire and merger) and trademark (distinctiveness, genericide, functionality) already recognize this dynamic nature of design as zeitgeist and relax exclusive rights accordingly. Our comprehensive view of the law of look and feel reveals areas of design law, notably design patents, that fail to incorporate this dynamic view of design.

While offering prescriptions for several branches of IP and applications to the design cases pending before the Supreme Court, we argue in particular for bold changes to design patent law, from its subject matter to its standard for infringement and method for assessing remedies. We seek to bring balance to this jejune area of law by incorporating and tailoring limitations from other more mature fields of intellectual property.

September 15, 2016

Senior Associate Dean Sunder and Professor Peter Lee participate in roundtable on “The Psychology and Sociology of Creativity and Intellectual Property” at Stanford Law School

On September 9 and 10, Professor Peter Lee and I participated in an invitation-only roundtable on "The Psychology and Sociology of Creativity and Intellectual Property" at the Stanford Law School.

I took this photo during the roundtable event. Professor Lee is second from left.

Professor Lee spoke to the question of "Why Do Companies Patent?" Professor Lee said smaller companies and larger companies may have different reasons for patenting, and similarly, that companies and their employees have different motivations for patenting. In addition, he noted the sociological evolution regarding patents at universities, from anti-commercial to seeing patents as part of the university's institutional mission.

I was invited to speak on "The Psychology and Sociology of Brands and Trademarks." I discussed how brand value is as much a function of the consumer as the producer. Brands tell us not just about the product but the buyer - about the buyer's identity and social status. While cognitive psychology understands branding as a science (where MRI readings can assist our understanding of how consumers react to brands), literary theory understands branding as an art, involving storytelling and archetypes. There are excellent chapters on the psychology and sociology of branding in a recent book I co-edited with NYU Professor of Law Barton Beebe and Hong Kong University Professor of Law, Haochen Sun, called "The Luxury Economy and Intellectual Property," published by Oxford University Press. 

I also spoke of the increasing role of design patents as a tool for protecting brand image, and of a new paper in which Professor Lee and I propose reforms to design patent law. The paper, "The Law of Look and Feel," is forthcoming in the Southern California Law Review. You can read a draft of the article here:

December 3, 2015

A "Harry Potter" Copyright Review Session

Copyright law both incentivizes creative works, such as the bestselling J.K. Rowling "Harry Potter" series, and also governs what fans can do with the works that they grow to love and know so well. Are the handmade Harry Potter-inspired jewelry, t-shirts, and Hogwarts robes for sale on the popular website illegal? What about a Girls Scouts Harry Potter-themed summer camp? What is ETSY's liability for the copyright infringement of the do-it-yourself fan-artists who share and sell their wares on the site?

My copyright course ended today with a final lecture on "fair use" and a Harry Potter-themed review session. I served "butterbeer" to the students (no alcohol, just lots of sugar!). Now the students are ready to confront issues of copyright in a digital age and the rights of users to command the tools of Web 2.0 to share their own views on the cultural works that help form our identities and communities. As I argue in my Yale University Press book, From Goods to a Good Life: Intellectual Property and Global Justice (2012), "It is precisely because culture is so influential in shaping our world and our selves that individual rights to debate it and participate in its remaking are imperative."

Raj as "Mad Eye" Moody, and me as Harry Potter

It was great to see the students dressed up as their favorite characters -- including Raj Pai, chair of the King Hall Intellectual Property Law Association (KHIPLA), as Professor "Mad Eye" Moody!


November 20, 2015

What's Love Got to Do with It?

I'm honored to be a participant at this historic conference on civil rights at Duke Law School this weekend, "The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America," organized by the school's Center on Law, Race and Politics.

I offered some provocative thoughts on the opening plenary here this morning, challenging the panel and audience to grapple with a subject that is crucial to the success and sustainability of any civil rights movement: LOVE.

King and Gandhi led the two greatest civil rights movements in modern history in the name of love. Both knew that to bring about change - and most importantly, to sustain it, they needed to cultivate sympathy and love for one's fellow citizens.

In her new book, Political Emotions: Why Love Matters for Justice, the political philosopher Martha Nussbaum argues that a society based on the premise of the equal rights and dignity of each person must not neglect the important work of cultivating what she calls "political emotions." Without education and arts that help people dive into the intimate life and problems of the other, through literature like To Kill a Mockingbird and Between the World and Me, we cannot develop mutual understanding and feelings of empathy and affection for others different from ourselves.

Nussbaum's book centers on the question of this conference - how is cultural change introduced? What are the tools and prerequisites for social revolution?

Social revolution is to be distinguished from political revolution. While the latter refers to changes in government, social revolutions - or what Kwame Anthony Appiah calls "moral revolutions" - incite change in social attitudes, real world behaviors and people's way of thinking. Revolutionary thinking requires, literally, a change of heart towards others-towards persons formerly viewed as slaves, as inferior, and as subhuman. From the mantra that "women's rights are human rights" to  #blacklivesmatter, the challenge is to promote an emotional transformation that would bring strangers, even enemies, within one's own "circle of concern," as philosopher Nussbaum calls it. We need to see the other is one of us and part of our own nation, community, and story.

As a scholar of law and culture, I study the role of popular culture and the arts in social production and social revolution. As John Dewey reminds us, there is nothing quite like art as a vehicle for offering an intimacy with the lives of people different from ourselves. In short: art matters for justice. It is a critical tool in the process or emotional transformation. Nussbaum writes: "If the other has been dehumanized in the imagination, only the imagination can accomplish the requisite shift."

So Bono and Will i. Am. are as important to this conference as the great scholars and lawyers assembled here. Music, book clubs and conversations in the public culture about television, film, and social media can help foster empathy for distant others, and also the critical commentary that is central to a democratic government. Unlike legislation or works of political philosophy, they "promote readers' emotional involvement in the events" and encourage dialogue.

On that score, however, a report of Hollywood diversity in 2015 reveals that in fact, the world's most powerful cultural producers are failing our democracy.  The report finds that though minorities are 40 percent of the U.S. population, they are only 1 in 6 among broadcast scripted leads and white actors dominate top credits. In short, according to Hollywood, black lives do not matter, and neither do Latino or Asian lives, or women, for that matter. These numbers reflect the failure of our collective imagination; our failure to use art to imagine a better world.

We cannot shun art, culture, and emotions in our movement. As Nussbaum says, "ceding the terrain of emotion-shaping to antiliberal forces gives them a huge advantage in the people's hearts and risks making people think of liberal values as boring and tepid." Love is the very life of our movement.


July 27, 2012

Moving Intellectual Property’s Focus from Creating More Goods to Enabling a Good Life

Cross-posted from the American Constitution Society (ACS) blog.

The intellectual property world is in an uproar about Judge Richard Posner’s salvo this month against United States patent law. In a piece in The Atlantic, Judge Posner argues that there are too many patents in America. He observes that patents can hamper innovation, just as they can incentivize it, and that they may be unnecessary to induce innovation in many industries.

Judge Posner is widely regarded as one of the fathers of law and economics. Many associate the movement with the idea of strong property rights, including strong intellectual property rights. Judge Posner intervenes to tell us that this understanding is wrong, that patents must only be granted where they in fact induce innovation. Judge Posner argues that the pharmaceutical industry is a “poster child for patents” because patents allow it to recoup the high cost of testing drugs for safety and efficacy. 

I want to pick up where Judge Posner leaves off. Pharmaceutical companies may be the poster child for patents, but even here, there are important additional questions about patents. A patent on a medicine gives the holder a twenty-year exclusive right to produce that medicine. Because medicines are central to humanitarian concerns, we need to think about not only how the law incentivizes their initial creation and testing, but also how the law affects what medicines are created and how they are distributed. Why does our patent system produce multiple drugs to treat erectile dysfunction, but few to treat malaria and tuberculosis? Does the globalization of our intellectual property law through the World Trade Organization make it too difficult for poor people in the developing world to access generic versions of life-saving medicines?

In his short piece, Posner addresses market failure, but not the moral failure to distribute life-saving drugs to millions in the developing world who need them. In my book, From Goods to a Good Life: Intellectual Property and Global Justice, just out this summer from Yale University Press, I argue that intellectual property law should be founded on a vision of a just society, not just the narrow goal of simply producing more products demanded by the marketplace. Children with AIDS, and their families, nine out of ten of whom live in Sub-Saharan Africa, lack the market power to induce the inventions needed to save their lives.

My book looks broadly at intellectual property, not just with respect to patents in medicines, but also in other areas such as popular culture.

Let’s turn away from medicines to consider one of the most valuable literary intellectual properties today: Harry Potter. J.K. Rowling and Warner Bros. own the trademarks and copyrights in the series. Yet the Harry Potter experience extends well beyond their official offerings, with real-world Quidditch Leagues and even a World Cup with witches and wizards holding brooms arriving from across the world.

Last month I was a volunteer counselor at a Harry Potter Girl Scouts camp. While Rowling has abided literally hundreds of thousands of fan-fiction stories based on her characters posted on the Internet, she and Warner Bros. have at times sought to stop some fan activity, and under a dominant economic analysis, they may be within their rights to do so. “Only if the parodist is seeking to ridicule the original work,” Posner has argued, “is a market transaction infeasible and an involuntary taking therefore justifiable.” That is, where the user is not making fun of the original work, there is no “fair use” of the Potter characters and story details, under a law and economic analysis. But are kids attending these camps dressed as their favorite character really ridiculing Harry and Hermione? Rather than parody, fan activity is better understood as paying homage to the original works and their creators. We need to apply a broader cultural and social lens, in addition to economic analysis, to our intellectual property laws that affect human freedom in many dimensions today.

The fundamental failure in the economic story of intellectual property has to do with information’s role in cultural life and human flourishing. It is odd that the area of law most closely focused on Dickens, Rowling, Star Trek, Lost, Gershwin, and Prince is indifferent to understanding these creative works and their relationship to society. Culture is not just a set of “inputs” necessary for further innovation. Culture is the sphere in which individuals participate, create, share ideas, and enjoy life with others. Active participation in the cultural sphere promotes learning and qualities central to a well-functioning democracy, especially critical thinking and communal engagement. Cultural works engender empathy for the other and foster mutual understanding. My book turns to social and cultural theory to more fully explore the deep connections between cultural production and human freedom.

Read the Introduction to the book and Chapter 7: An Issue of Life or Death. Buy the book here. For more information, see here.