IDEA Volume 65: Associate Editors' Notes Announcement

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In this blog, we want to showcase our Associate Editors' notes and recognize their hard work throughout the drafting process. We encourage all of you to attend the annual Student Note Symposium in April 2024, more details to come. 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. You can also learn about IDEA and the UNH Law Review. Thank you and enjoy!

 

Navigating Copyright and Creative Liberties in Book-to-Movie Adaptations

By Katie Schneider, Class of 2026

Last fall, Netflix released The Perfect Couple, a drama series based on the novel of the same name by Elin Hilderbrand.  Hilderbrand, a bestselling author, stated on numerous occasions that she really didn’t care how closely the show resembled her book; she just wanted Netflix to produce good television. However, the plot and characters of the series deviated so significantly from the book that many viewers—particularly Elin’s readers—were left feeling disappointed.

Copyright provides authors of original literary, artistic, musical, or dramatic works exclusive rights to use, reproduce, and distribute the work.  As such, an author of a novel holds copyright protection in the novel and retains the rights to reproduce or adapt the novel into other media, such as a movie or other visual media.  Some authors may sell their adaptation rights to a production company to create a movie of their book. The resulting work typically does not infringe on the book’s copyright unless the changes made, or not made, exceed the terms of an adaptation rights agreement.  For example, given the altered plot and modified character arcs in the series, the adaptation rights agreement for The Perfect Couple presumably gave the production company significant creative license.  While movie adaptations will inevitably differ from the underlying book to allow for appropriate run-times and the translation of book characters’ internal thoughts into visual storytelling, drastic changes can be very frustrating for readers and viewers, raising questions about the laws surrounding adaptation rights.

This article explores such adaptation rights agreements and their interaction with copyright law, specifically regarding derivative versus original works, which elements of books are afforded copyright protection, and whether significant differences between a book and a movie of the same name enhance or detract from authors’ rights. In addition, this article suggests a new approach to copyright law and adaptation rights, specifically for book-to-movie adaptations, based on the similarity between the works.

 

Let’s React to This: Rethinking Fair Use in the Age of Online Reaction Videos

By Katherine Buchholz, Class of 2026

Reaction videos are a very popular way that people consume content, including music and TV shows. Since the COVID-19 pandemic, these types of videos have become even more popular. They allow people to experience the same feelings and expose others to content they might not normally choose for themselves. Their importance has led some to question whether there should be a shift in how the fair use defense interacts with copyright law overall.

The fair use defense mainly comes from §107 of the Copyright Act. The statute lists four factors and some examples of what can be considered fair use. The two fair use factors that most cases focus on are “the purpose and character of the use” and the effect the use has had on the market value of the copyrighted work. Some of the examples the statute gives on what can be considered fair use include if something is criticism or commentary and if something is used for any sort of scholarly purpose. The other part of the fair use defense is the doctrine of transformativeness, which comes from the U.S. Supreme Court decision in Campbell v. Acuff-Rose Music and was recently revisited in the Court’s Warhol v. Goldsmith decision. In both cases, the Court held that a work is “transformative” if it gives new meaning or expression to the copyrighted work.

When we examine copyright claims involving online reaction videos, we cannot just consider the fair use factors. We must also consider other laws, such as the Digital Millennium Copyright Act (DMCA), which helps monitor content platforms like YouTube. Under the DMCA, YouTube, not the content creator, is protected from copyright infringement litigation unless a claim is filed. This raises the question of how creators can defend themselves against unjust claims. One way to help creators would be to amend the fair use defense in the Copyright Act.

This note will explore the modern culture of reaction videos and how the fair use defense and the DMCA have impacted these types of videos. It will propose amending the fair use defense to include the word “reacting” so that reaction videos and their creators can defend themselves against unjust claims. This solution could lead to an increase in creativity, which would be beneficial to society.

 

Trade Secrets and Universities

By William Sweeney, Class of 2026

Public research universities throughout the country, and specifically in New England, have been facing significant financial hurdles in recent years. For example, in 2024 the University of New Hampshire had to make $14 million in budget cuts, including layoffs and shuttering of the university’s art museum. Similarly, the University of Connecticut last year proposed a fifteen percent reduction in operating costs over the next five years.

One source of revenue for these R1 universities is the intellectual property that they generate. For example, UNH’s “UNHInnovation” generated over $5 million in intellectual property licensing revenue between 2017 and 2021, and notes commercialization of the school’s intellectual capital as “a primary goal of UNH’s Strategic Plan.” The University leverages its patents, copyrights, and trademarks to derive licensing revenue. However, the school does not accept trade secrets, a form of intellectual property protection that has rapidly grown in popularity and value in recent years. Considering the ongoing financial struggles, should these universities consider changing their stance and developing a policy to derive value from potential trade secrets?

This note will use UNH as a case study, diving into the financial struggles R1 public research institutions in New England are facing, and how an embrace of trade secrets could affect and potentially mitigate some of those struggles. This note will explain how trade secrets fit within the broader intellectual property universe, how they can be used to generate revenue for a school, and the potential tradeoffs universities would face if they were to adopt trade secret policies. Lastly, this note will provide a recommendation for a potential trade secret policy for public research universities and suggest areas for further research.

 

There is More than Meets the Eye for Biological Materials as Property

By Joshua Reddington, Class of 2026

Research and development in the life sciences field relies on the scientific method and repeatable results. In instances where biological materials are involved, e.g., cell lines, bacteria, and viruses, this is made possible by access to high-quality and well authenticated starting materials. To fill this need, biological resource centers (BRCs) maintain collections of the world’s diversity of microorganisms and cells to make them accessible to the research community. The World Federation of Culture Collections (WFCC), for instance, now has over 600 member collections, including American Type Culture Collection (ATCC), Deutsche Sammlung von Mikroorganismen und Zellkulturen GmbH (DSMZ), and the European Collection of Cell Cultures (ECACC).

The biological materials maintained by these collections have a remarkable ability to self-replicate. A vial of material transferred by a BRC to a recipient can be passaged in a lab, and in short time the material originating from the BRC will be overwhelmed by a population of its progeny. Additionally, gene editing platforms have made it possible to modify biological materials to take on remarkable qualities, such as the production and secretion of monoclonal antibodies (moAbs) for treating human disease.

In many cases, BRCs transfer biological materials under the terms of Material Transfer Agreements (MTAs). These agreements, inter alia, restrict the use of the materials to a recipient’s internal, non-commercial use only and retain ownership to all rights and title of the materials, their progeny, unmodified derivatives and any of the foregoing contained in modifications with the BRC. Under such terms, a recipient could genetically modify a cell line from the BRC to bioproduce moAbs and the BRC would claim ownership to the progeny and unmodified derivatives existing within the modified cell line. Furthermore, the recipient would be unable to make any commercial use of their modification unless and until they receive a commercial use license from the BRC.

This note will explore what property rights, tangible or otherwise, are actually retained when biological materials are transferred in this manner. Specifically, this note will evaluate whether patent and trade secret law can provide any justification for the retention of property rights by BRCs. Property rights generally provide the owner with legal authority to exclude others from using or exercising control over their property. Property rights to biological materials retained by a BRC could, therefore, have significant implications in the field of life sciences research. There is no doubt that credible biological materials play a pivotal role in innovation, particularly in the life sciences and pharmaceutical industries. This fact alone does not, however, guarantee the availability of property rights to these unique, self-replicating research and commercial tools.

 

AI-Informed Expert Witness Testimony: Reliable, or Daubtful?

By Brianne Armstrong, Class of 2026

Expert witnesses play a critical role in determining the outcome of Copyright and Trademark litigation. Such cases rely on the application of various tests involving both objective and subjective factors, often informed by the niche industry expertise of such witnesses. In copyright infringement cases, this includes experts such as musicologists, who are highly trained in music theory and can speak to characteristics of musical works that are (or are not) similar. In trademark infringement cases, expert witnesses may have a background in marketing or the commercial space in which competing products (such as shoes) are sold. Accordingly, identifying a credible and knowledgeable expert witness is crucial.  

With the advent of Generative AI, expert witnesses have a unique opportunity to analyze infringement factors in new ways. For example, utilizing AI to detect measurable similarities in chord progressions, or to analyze and predict consumer purchasing decisions. However, such potential benefits also come with challenges, including criticisms of validity and reliability under the Federal Rules of Evidence and the Daubert standard. As a result, identifying and anticipating such obstacles is increasingly important in preserving and challenging expert witness credibility.

As the legal landscape surrounding AI is still evolving, practitioners face difficult decisions about how (or if) they will incorporate AI-informed expert witness testimony. This article will examine the admissibility framework of such testimony, address its benefits and challenges, and discuss practical considerations in utilizing (or not utilizing) it in litigation strategy.

 

Gaming the System: Dysfunctional Enablement Functionally Disabling the Video Game Market

By Jerome Redmann, Class of 2026

The video game industry has grown rapidly in the last few decades. Advances in technology, from the availability of gaming devices (I’m looking at you, smartphones) to the ease of digital distribution, have caused the market size to expand to an estimated half trillion dollars in 2025. Additionally, an estimated one and a half billion people will play some form of videogame this year, almost 20% of the global population. Games are everywhere, and while the success of the industry has led to an incredible amount of new content, software patents for video game mechanics often seem to stand in the way of further advancements.

These patents are incredibly esoteric, with disclosures consisting of flow charts and diagrams rather than source code that would truly enable a person having ordinary skill in the art (PHOSITA) to practice the claimed inventions. A game developer attempting to implement a mechanic by following a patent would likely struggle substantially; it would still require investing a great deal of time and effort to figure out how to implement the invention. This begs the question, are these patents sufficiently enabled?

One key requirement to obtain patent protection of an invention is found in 35 U.S.C. § 112, which in part requires that the invention is described in “clear, concise, and exact terms” to enable a PHOSITA to make and use the invention. However, this is a factual determination which is difficult to appropriately analyze through patent prosecution. It is therefore most commonly determined after a patent has been awarded, through patent litigation. This results in an industry-wide minefield of patents which may or may not be sufficiently enabled but have not yet been tested by the gauntlet of litigation.

The chilling effect of this minefield is substantial. AAA developers hold arsenals of patents over one another, as a sort of mutually assured destruction while Indie developers try their best to navigate through the patent thicket. In cases where any new game becomes a hit success, patent holders jump at the opportunity to get their cut by testing the mettle of their patents through litigation. This paradigm seems to put the cart before the horse, awarding patents without truly knowing if they are enabled and allowing courts to make that determination down the road. This leaves developers frustrated and consumers confused as to why their favorite mechanics are not further used, developed, and evolved over time.

This note will evaluate the state of the patent enablement requirement, how video game software patents are treated under the current regime, and how this treatment affects the industry. The discussion will highlight the shortcomings of the current system and propose potential solutions.

 

Backgrounds Matter - The Obvious Choice to Distance the Supreme Court from Patent Law

By Fuller Walker, Class of 2026

The field of patent prosecution, that is, filing for a patent and going back and forth with the patent office to hopefully obtain valid protection rights, is heavily dictated by statute. While Congress set forth the basic requirements for a patent within 35 USC 101, 102, and 103, it inevitably follows that some court would need to step in to interpret exactly what the statute means. For the sake of patent law as a whole, that court should not, and cannot, continue to be the Supreme Court.

While any individual with a JD can practice patent litigation, patent prosecution lacks a JD requirement in favor of requiring admittance to its own special jurisdiction - the Patent Bar. The Patent Bar requires an individual to sit and pass a standardized exam, but before that, requires an individual to have a qualifying degree to even sit for the exam. The degrees are typically those in the STEM fields - with a few exceptions relating to credit hours.

However, no such requirement exists for any of the courts that interpret what the law governing patent prosecution means. In simpler terms, one needs a STEM degree to practice patent prosecution, but one does not need a STEM degree to tell others how to practice. This has, inevitably and predictably, led to a slew of misguided opinions that have muddied the waters of patent prosecution.

This note will delve into a detailed breakdown of a variety of Supreme Court decisions that have been heavily scrutinized by the patent world. In light of this critique, this note will explore the unique “patent-only” jurisdiction of the Federal Circuit and discuss how leaving issues of patentability to only STEM qualified judges might just be for the best interest of the patent world moving forward.

 

Artificial Intelligence in Intellectual Property Law: Balancing Innovation and Oversight

By Uthej Kunamneni, Class of 2026

The integration of Artificial Intelligence (AI) in Intellectual Property (IP) law is transforming the way patents are drafted, litigated, and enforced. AI-powered tools automate prior art searches, claim analysis, and patent prosecution, significantly improving efficiency. However, this rapid adoption of AI also introduces legal, ethical, and jurisdictional challenges that demand urgent regulatory attention. Without proper safeguards, AI could disrupt fundamental aspects of IP law, undermining the integrity of patent systems and creating disparities across jurisdictions.

To fully harness AI’s potential while mitigating risks, IP law must evolve through three key reforms: enforcing stringent oversight, enhancing transparency, and establishing global standards.

Critics argue that AI boosts efficiency and innovation, making additional regulations unnecessary. While AI indeed reduces workload and enhances search accuracy, its unregulated use could lead to low-quality patents, biased legal decisions, and jurisdictional fragmentation. Others worry that standardizing AI regulations could stifle innovation, but balanced oversight will actually promote long-term stability in the IP system.

Without proactive legal adaptation, AI’s rapid expansion could outpace the ability of courts and patent offices to maintain the integrity of IP protections. The goal is not to limit AI’s capabilities but to align them with a legal framework that balances innovation with accountability. By embracing AI responsibly, IP professionals and policymakers can create a future where AI-driven patent law remains fair, transparent, and effective.

 

The Only Thing Permanent is Change: Requiring Fixation in a Conceptual World

By Zan Hurley, Class of 2026

When it comes to copyright protection, there are some that view it as over encompassing, affecting too many works, too long to serve its purpose, and more. Whether these critiques are true or not, there are still branches of works, or art, that are not protected under present copyright law. One such category is conceptual art; art which is known for its processes rather than its final product. The reasoning behind the lack of protection is rather obvious, as it goes against one of the axioms of copyright law: ideas are not copyrightable.

The justification for this rule is logical and partially evidentiary. How are courts supposed to enforce copyrights if there is no proof that a person actually created something? But much of conceptual art exists as the manifestation of the idea behind it. Just because the artists themselves, or even the “art world” may view the concept as more important than the final product, should that matter if there is a fixed product in the end? But that introduces another question: is the work actually fixed?

All conceptual art is recognized for its concepts, but not all concepts result in a legally fixed form. For example, Néle Azevedo's Melting Men, Paul Kos’ Sound of Ice Melting, and Jeff Koon’s Puppy. Art which is ephemeral, or decays over time, or which was designed to be that way, is too “inherently changeable” to be fixed according to Kelley v. Chicago Park District. When the essence of a work is of dynamic change, it cannot “be perceived, reproduced, or otherwise communicated for . . . more than a transitory duration” in accordance with the Copyright Act. However, courts have not been clear on exactly what is and is not transitory, making the determination of whether an artwork is fixed or not increasingly difficult, given the creative materials used in conceptual art. But just because it’s not likely for works to be legally fixed, it doesn’t mean they never are. For example, in Williams Electric, Inc. v. Arctic International, Inc., the Third Circuit considered whether the copyrightable work is sufficiently repeatable to be fixed. In the case, the court found that even participative intervention did not affect the copyrightability of the work.

Many scholars find Kelley’s outcome to fly in the face of already settled law, such as Williams Electric. However, there are a great number who see the futility in trying to fit the square peg of conceptual art into copyright’s round hole. There is hope, though, for those that wish for protection as the world continues to change, innovate, and create, providing evidence of what will and will not be remembered.

 

The Urgent Need for Biometric Data Protection in Sports: Addressing AI’s Impact on the Right of Publicity

By Mason Muskett, Class of 2026

Rooted in the early iterations of baseball, sports data has immensely evolved from its modest beginnings. This immense evolution has led to complexities that now demand immediate action. The initial purpose of sports data was to ensure accurate scorekeeping. However, sports data has become significantly commercialized, and the rise of advanced analytics is now integral to teams seeking a competitive advantage. However, biometric data has introduced yet another complexity that has necessitated an urgent reaction.

This introduction of biometric data takes sports data to a newfound level of complexity. Past rulings on using sports data have shaped the commercialization and utilization of sports data. However, the unique characteristics of biometric data may be outside of the scope of these rulings and further complicate the use of biometric sports data. This issue raises the question of whether intellectual property can adequately protect biometric data within the sports industry.

A viable strategy that could be utilized to protect biometric data is the right of publicity. However, the rapid implementation of artificial intelligence into our everyday lives has added a further wrinkle to the situation. Athletes are not alone in facing risks against their biometric data. Spectators alike face increasing risks against their biometric data in this evolving area. As existing regulations continue to struggle to keep pace with the changing technology of artificial intelligence and its relationship to biometric data, there is a dire need to instill confidence in athletes and spectators that their biometric data will be adequately protected.

The dire need for a swift and encompassing blanket of protection for biometric data has never been more apparent. Delaying this swift action will cause unfortunate consequences for the biometric data of athletes and spectators.  The following note will thoroughly explore the current and impending regulations on artificial intelligence and the right of publicity. Upon such analysis, those areas will be analyzed to see if their regulations can be adapted to protect the biometric sports data. This note will identify the correct elements from these existing regulations and determine the most suitable combinations of the available options. Finally, the note will recommend the best protection path for athletes and spectators.

 

Dancing Around the Law: Judicial Subjectivity in Choreographic Infringement

By Abigail Moore, Class of 2026

In copyright infringement cases involving choreographic works, the “substantial similarity” test plays a critical role in determining whether one choreographic work unlawfully copies another. However, the test’s inherent subjectivity–especially in the context of dance–has led to inconsistent outcomes, with judges often making their own individual determinations of what constitutes “substantial” similarity. The result is a legal landscape marked by significant variability and has left choreographers with no clear steps on how to successfully enforce protection of their works.

Legal scholars have argued that this test is merely a front for judges to make subjective judgments in an ad hoc manner, based on their own interpretation of what is substantially similar. Unlike visual works, such as paintings or sculptures, choreography is a dynamic, performative medium that does not always lend itself easily to comparison. Different circuits have adopted variations of the “substantial similarity” test that affect these cases' outcomes. Additionally, judges’ subjective interpretations of this test have led to arbitrary decision-making in the dance world.

For instance, the Ninth Circuit’s recent decision in Hanagami v. Epic Games left choreographer Kyle Hanagami defenseless against Epic Games and their use (arguably, infringement) of his choreography to the song “How Long,” by Charlie Puth. Hanagami’s routine gained more than ten million views across a variety of streaming platforms. Epic Games’ video game, Fortnite, released celebratory emotes available for purchase, one of which was an emote that included four beats and eight movements from Hanagami’s protected choreography. The Ninth Circuit not only highlighted that choreographic works are left largely undefined but also suggested that additional factors be considered by courts that only further the subjectivity when analyzing substantial similarity in the dance context. While the Ninth Circuit noted the District Court erred in dismissing Hanagami’s claim, they did not introduce any decision that would provide choreographers with enforcement guidance.

This article discusses the longstanding history of vagueness and inconsistency in the initial protection and enforcement of choreographic works amongst different circuits and advocates for clarification of protectable subject matter and more objective guidance for judges—perhaps to better understand the nuances of dance—so that judges have a more uniform framework to make their determinations. Without these safeguards, choreographers are left navigating a patchwork of standards, unsure whether their works will be adequately protected or dismissed due to a judge’s personal interpretation of similarity.

 

Dubiously Constitutional, Partially Obsolete: Patent Secrecy Orders and the Private Inventor

By Lily Nestor, Class of 2026

Gandalf the Grey of Lord of the Rings fame once said “keep it secret, keep it safe,” but how does this principle hold up for a private inventor suddenly and unexpectedly confronted with a secrecy order on their invention that they want to bring into the world?

The Invention Secrecy Act of 1951 took World War II national security provisions for classifying patent applications and extended them into times of peace. These secrecy orders prevent the patent applicant from disclosing any information about their invention and theoretically allow for the inventor to request compensation for the ensuing damages. The vast majority of secrecy orders are imposed on government inventors or inventors working on a government contract, but private inventors are also subject to them and House Report No. 96-1540 (an analysis of the “classification of private ideas” released in 1980) indicated that “the statutory right of an inventor to just compensation for secrecy order damages appears more illusory than real.”

The policy behind the Invention Secrecy Act was to prevent foreign adversaries from acquiring knowledge of inventions which may create national security threats. Now declassified inventions that were subject to secrecy orders include anything from warhead production to paint. The modern-day list of topics that may cause an invention to be reviewed for a possible secrecy order is itself classified. Additionally, court rulings such as with the Pentagon Papers Case indicate that, while national security can be a legitimate reason to prevent speech, it has First Amendment limitations when it is imposing a prior restraint.

This note will explore the intention behind the Invention Secrecy Act and argue that modern-day patent procedures and filing trends decrease the efficacy of the act as applied to private inventors. Furthermore, this note will discuss the constitutional issues of prior restraint and procedural due process as applied to private inventors under secrecy orders, and it will propose a regime in which the constitutional validity of these secrecy orders may be clarified. The patent system was created to incentivize the creation and public disclosure of new inventions, and any stifling of this incentive must be done with great care.

 

The difficulties, concerns, and effects of protecting restaurant trade dress that includes cultural elements

By Lauren Lepre, Class of 2026

Two Pesos Inc. v. Taco Cabana is a seminal Supreme Court case that established that the trade dress of a restaurant may be protected as a registrable trademark. Trade dress is considered to be the combination of elements that make up the design or packaging of a good or service. As applied to restaurants, it may include the atmosphere, architecture, décor, color scheme, layout of the restaurant, and other elements. Restaurant trade dress may be found to be inherently distinctive and protectable as a trademark without proving acquired distinctiveness through secondary meaning.

The doctrine of functionality within trademark law is a more recent emergence. This doctrine seeks to prohibit the extension of trademark protection to marks that exhibit utilitarian functionality or aesthetic functionality. Utilitarian functionality concerns marks that include a feature that is essential to the use or purpose of the good or service, or affects the cost or quality of the good or service. Aesthetic functionality is seen where exclusive use of a feature of a trademark would put competitors at a significant non-reputational-related disadvantage. The application of this doctrine is not consistent, as different Federal Circuits vary in their interpretations of how functionality should apply to trademark law.

There are many restaurants that serve cultural foods and may include elements from that culture in the restaurant trade dress, and as such, restaurants may seek to protect that trade dress. For example, a restaurant that specializes in Italian food may have a trade dress that includes Roman columns, olive trees, and murals of Italian landscapes. Trade dress is only protectable as a specific combination of elements, but it may be concerning to protect that combination if each individual element is functional. Other restaurants seeking to serve food from a specific culture may be limited in what elements of that culture they can utilize. Allowing strong trademark protection for this sort of trade dress may also lead to monopolistic concerns and cultural appropriation and stereotyping.

This note seeks to assess how combinations of cultural elements should be protected for restaurant trade dress and analyze the ways that restaurant trade dress interacts with the doctrine of functionality. It will further put forth the argument that this sort of trade dress should receive weak protection and should not be considered a strong trademark.

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