Month: October 2023

By Chitra A. Ram

from Volume 13 (2023-2024)

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Abstract

In the field of intellectual property law, few attorneys consider the tax implications of legal proceedings prior to undertaking litigation. In studying the interdisciplinary space between intellectual property law, litigation, and taxation practices, this Article hopes to further expand existing research on the scope and incentives behind intellectual property protection in the United States, the policies underlying the system of federal income taxation adopted by the United States, and the precedents upheld by courts in deciding matters at the nexus of intellectual property litigation costs, expenses, and taxation.

By Luke E. Steffe

from Volume 12 (2022-2023)

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Abstract

American fashion represents an eclectic patchwork of diverse experiences and ideas; however, drawing upon Indigenous communities’ cultural identities and sacred traditions can easily cross the line between inspiration and appropriation. In reality, designs derived from culturally significant symbols, which have been stolen from Indigenous communities and stripped of their meaning, flood the American market. From runway shows to sports teams’ mascots to undergarment designs, these manifestations of cultural appropriation occur legally under the existing U.S. copyright regime, and adaptations to the current, Westernized system of intellectual property (IP) rights must integrate Indigenous perceptions of communal ownership with respect to their intellectual property. Copyright protection empowers native communities with both a sword and a shield, allowing for the protection and enforcement of their sacred art forms. By expanding current notions of authorship, copyright protection can extend to traditional designs and protect them from constant appropriation, and quite frankly, stealing by fashion labels. Moreover, granting a valid copyright to Indigenous designs in fashion must be accompanied by the explicit recognition of moral rights to provide comprehensive protection. In the United States, a suit for copyright infringement relies on the existence of a valid copyright; thus, the current law denying these protections to Native American and Alaskan Native communities leaves them without legal remedy when faced with the appropriation of their intellectual property. This Note proceeds in three Parts. Part One discusses Indigenous designs in fashion as a classification of Traditional Cultural Expressions (TCEs). Part Two analyzes the legal framework of U.S. copyright law as it stands and offers insight into the discrepancies between Western and Indigenous notions of intellectual property rights. Finally, Part Three suggests two legislative adaptations to account for these discrepancies and provide for the protection of Indigenous fashion designs, and all classes of TCEs, drawing upon international solutions to this issue.

By Scott Michael Nolan II

from Volume 12 (2022-2023)

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Abstract

Part I of this Article investigates the development of pharmaceuticals and clinical trial data with a focus on patent and data protection. Part II evaluates the effects of protection and the challenges it poses to widespread public pharmaceutical access. Part III discusses two scholarly approaches to the public access issue that focus on clinical data protection and their associated challenges. In light of these scholarly works, Part IV suggests a new approach to clinical trial data protection that aims to improve public pharmaceutical access while maintaining the incentives to invent for drug developers.

By: Megan Lynn Wheeler

from Volume 12 (2022-2023)

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Abstract:

The First Amendment, in certain circumstances, is used as a defense to “protect[] satire and parody as a form of free speech and expression.”2 When it comes to jokes, “[q]uestions . . . have arisen in case law [pertaining to satire typically] concerning libel, emotional distress and copyright infringement.”3 Further, in a right of publicity claim, “[t]he First Amendment clearly protects all but the most intrusive coverage of news, or details of a person’s private life, such as are reported in the tabloid press or talk shows.”4 This demonstrates that humor and satire have a close relationship with the First Amendment jurisprudence and that the First Amendment provides strong protection for dissident voices pertaining to public officials and figures so long as they are not overtly “intrusive.”5 While First Amendment almost whole-heartedly urges for freedom of robust debate and discord over public concern, copyright creates a property interest in speech and expression, particularly as it pertains to the expressive works of public figures. As a result, “copyright laws grant a copyright owner the right to suppress or abridge another person’s freedom of speech when that person seeks to express copyrighted material.”6 This Note will evaluate how the stark differences of approaches between the doctrines may be most at odds in the expressions of parody and satire as they are now regulated by copyright law’s First Amendment “fair use” “safety valve” (which results in overlooking entirely the First Amendment issues) and suggest that the Supreme Court overrule, or Congress pass an amendment to, the common law parody-satire distinction to carve out an exception for parody and satire to be evaluated at a First Amendment standard of scrutiny.

This analysis will evaluate first, how satire is a utilitarian form of public and political expression recognized by the First Amendment; second, how the First Amendment defense operates in protecting comedic, humorous, and satiric forms of public comment; and, finally, how the First Amendment protection has been increasingly eclipsed by the intellectual property doctrines of copyright (and trademark) in litigation pertaining to such satirical works. Then, I will illustrate First Amendment protection analysis for satirical works through a survey of cases where the intellectual property doctrines certainly take legal priority over serious First Amendment concerns, and contrast those with cases that allow infringement or some form of copying that has little to no First Amendment value.