Welcome to the IDEA Volume 57 Blog!

In this Blog, we want to showcase our Associate Editors’ notes.  If you are interested in any of these notes, we encourage all of you to attend the annual Student Note Symposium on April 21, 2017.  At this event, you can hear a short presentation from each Associate Editor and talk with them about their research and the nuances of each area.  Thank you, and enjoy!

Table of Contents
Contemporary Art and its Predisposition to Clash with Copyright Law
How Patent No. 9,095,554 is Changing Everything in the Marijuana Industry

Contemporary Art and its Predisposition to Clash with Copyright Law

head shot   By Joseph Scott JD '18

In a renowned opinion, Justice Reed stated, “individual perception of the beautiful is too varied a power to permit a narrow or rigid conception of art.”

Everyone’s an art critic. Whether you want to or not, when looking at a work of art or hearing a song, you either like it, dislike it, appreciate its complexity, or wonder why on earth a blue canvas split vertically by a white line could fetch $43.8 Million at auction. Minimalism tends to be one of the more polarizing artistic movements, and it makes no exceptions in its interactions with the law of copyright. So, when it comes to copyright, and the bench is required to disregard a work’s artistic merit in determining whether a work is eligible for copyright protection, how do they do it? For a work to be worthy of copyright protection, it must be an original work of authorship fixed in a tangible form of expression. In other words, to benefit from copyright protection, a work need not be novel or radiate artistic merit so long as it is original. So why is it that belt buckles made from precious metals (which simply serve the inevitable function of fastening belts) obtain copyright protection, when minimalist art (which serves no other purpose than to express the creativity of an author) consistently struggles to gain protection?

Copyright law and modern art often clash, particularly in light of the minimalist movement. Minimalism, which emphasizes simplification and the scarcity of detail and reduction of elements to the bare essentials, struggles to fit into the copyright criteria. Although the dilemma of artistic merit is not unique to minimalism, the very nature of the movement does not forebode well for its protection under copyright. It will be interesting to look into the tensions between the law and art, and the wide reaching threshold of originality dilemma in this context.

Moreover, the threshold of originality does not reserve its squabbles solely for minimalism. On March 17, 2015, Anton Motolko took a picture of the Northern Lights shimmering behind the dark silhouette of an imposing tree. He published the photographs on his social media accounts where they attained substantial popularity. The next morning, he woke up to his work being used on a state-run television channel to which he had not given permission nor had he received any form of recognition. Seeking credit and compensation for his work, Motolko brought suit in Belarus in the hopes of receiving his due compensation. Unfortunately for him, the court determined that his photographs failed to demonstrate any signs of “creative freshness, originality, uniqueness, or exceptionality,” and denied him any recourse for the unauthorized use of his photographs. Motolko has since appealed to the World Intellectual Property Organization, in what could be a pivot point for copyright law across the globe.

The threshold of originality consistently manifests itself as an ominous shadow for artists reaching beyond the traditional forms of art. In 2008, the Tenth Circuit held that digital wire-frame models of Toyota vehicles were not eligible for copyright protection because the models were no more than digital depictions of actual Toyota vehicles and hence lacked creativity. Here, the court refused to consider the substantial efforts the plaintiff made to create the models, rejecting the sweat of the brow doctrine, and denying any protection.

If the bench is to refrain from assessing artistic merit or factoring in personal preference, why does copyright law favors certain traditional art forms over newer ones, notably traditional art over contemporary movements? Maybe it’s time for copyright law to take a stride away from its “rigid conception of art.”

How Patent No. 9,095,554 Is Changing Everything in the Marijuana Industry

   By Cecily Wilbanks JD '18

On August 4, 2015, the USPTO granted patent U.S. Patent No. 9,095,554, a patent for “specialty cannabis plants, compositions and methods for making and using said cannabis plants and compositions derived thereof.” The patent covers the methods of breeding, production, processing and use of specialty cannabis. Prior to patent 9,095,554 no specialty cannabis (or “strain”) had been patented. Further, most if not all potential patent holders believed that such a patent was impossible to get, due to cannabis’ placement as a schedule I drug by the DEA under the Controlled Substances Act (CSA). Patent 9,095,554 has opened up a new world of potential patents, innovation, and major complications in our current era of marijuana legalization.

In terms of intellectual property law, there are a multitude of questions and areas of concern surrounding marijuana patents, including patent registration roadblocks like “novelty” and “utility.” Numerous strains of marijuana were developed years ago and have been in use illegally, potentially creating a “novelty” issue if creators attempt to patent these strains. On the other hand, if an agricultural company independently develops a strain, it is unclear whether the strain’s prior illegal use would be considered invalidating prior art. “Utility” may also prove to be an issue, due to strong similarities between various marijuana strains along with the FDA’s current stance on marijuana as a schedule I drug. Developers both large and small will be under a great deal of pressure to find and create strains with different effects, the determination of which would likely be delayed by the FDA and the DEA.

Moreover, patenting marijuana strains could create a serious impact in the business world. For years small growers have been wary of larger companies like Monsanto getting in on the marijuana business. With the ever growing legality of both medicinal and recreational marijuana, the ability to patent strains will be an important part of a business’ portfolio, for both small and large growers. Many small scale growers have been in business for decades and the patenting (and ensuing legal fight over said patents) of various strains is likely to become a competitive business very soon.