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What Should IP Law Do (if Anything) About Cultural Appropriation?

May 27, 2026 Christopher J. Sprigman1 comment

For several decades now, a debate about whether or how to regulate cultural appropriation, especially of indigenous creations, has been brewing at the edges of American IP scholarship. This topic has, however, never really broken through—that is, it has never surfaced as an issue that captures the attention of the field in the U.S. as a whole. It is heartening to read recent contributions to the literature from scholars including Margo Bagley, Sonia Katyal and Angela Riley, Jessica Kisser, Ruth Okediji, Michael Goodyear, Trevor Reed, and Aman Gebru who recommend some form (often narrow) of protection against cultural appropriation and/or the unauthorized use of traditional knowledge. Another smaller recent legal literature raises questions about such protections (including noting weaknesses in the normative case for legal rules to restrict cultural appropriation).

Of these many worthy contributions, I especially want to praise Aman Gebru’s article Remediating Cultural Appropriation. Gebru provides three invaluable services to the literature on cultural appropriation. The first is a careful articulation of the various possible harms and benefits of cultural appropriation. This analysis is fair-minded and inclusive, reviewing and critically assessing the literature that fills out both sides of the ledger. Second, Gebru proposes a taxonomy to assess varieties of cultural appropriation claims with particular focus on two factors: the cultural symbol’s level of “diffusion” (i.e., is the element shared by other cultures, or is it strongly identified with a single originating culture?) and the extent to which the use is commercial in nature.

Of the four categories of cultural appropriation that Gebru proposes, he advocates legal intervention to limit appropriation as to only one, namely, commercial uses of cultural elements that are distinctive of a single culture. For that category, Gebru favors an approach based on trademark concepts although he proposes limits analogous to laws such as the U.S. Indian Arts and Crafts Act, which is, essentially, a truth-in-labeling requirement. For the other categories, the cost of even narrow cultural appropriation limits, Gebru argues, are too high in terms of free speech harms and the violence that would have to be done to numerous legal doctrines, such as standing rules, to permit judicial enforcement. In a brief but valuable part of the article, Gebru details a number of lawsuits that are, at their core, about cultural appropriation, but which avoid making cultural appropriation claims directly because they simply do not fit under existing law.

Third and finally, Gebru supports his recommendation for focused legal intervention with a theory of “cultural passing off.” He proposes a framework for enabling legal claims against commercial use of a distinct symbol that falsely implies affiliation with an identifiable community. Gebru draws on the trademark passing off cause of action and adapts it to the cultural appropriation context, laying out elements of collective goodwill, commercial appropriation of distinct cultural symbols, and deprivation of material advantage as the claim’s core elements. This framework, Gebru argues, addresses harmful cultural appropriation while preserving the beneficial dynamics of cultural diffusion.

In a final part of the article, Gebru illustrates the application of his framework with some examples. One that stands out is Jeep’s use of the term “Cherokee” for one of its SUVs. Gebru argues that all elements of the cultural passing off claim are satisfied in this case. The “Cherokee” name enjoys “collective goodwill”—i.e., its value inheres in large part from its association with a distinct (and geographically and culturally cohesive) social group. The use also, Gebru argues, involves misrepresentation, in that there is no consent, affiliation or other connection with the group. And finally, there is deprivation of material economic advantage, arising from the lost licensing opportunity.

Gebru proposes that a cultural group pressing a “cultural passing off” cause of action must show, among other elements, that the appropriation has caused it to suffer a material “deprivation of economic advantage.” But establishing that element will often, if not always, involve some circularity—the assertion often involves a foregone licensing opportunity, but the licensing opportunity exists only if there is a right to license, and that is the very thing at issue in the claim. This is an important element of my skepticism that the framework is either workable or normatively justifiable.

A different critique can be aimed at the misrepresentation requirement. Gebru frames it as an absence of consent, affiliation, or other connection with the group whose cultural identifier is used. But that does not track with passing off law, which traditionally has thought of misrepresentation as creation of the impression that there is such a connection.

Despite my reservations about this proposal, I admire Gebru’s article. It is the most helpful summation of a pro-intervention position that I’ve seen, even if the intervention it recommends is narrow. And importantly, Gebru is careful to deal with opposing arguments, and to be generous to them. And this, at bottom, is perhaps the most important of Gebru’s contributions. He has given us a model for engagement on a topic that, over the years, has failed to gel into the fascinating and productive debate that we could be enjoying within the community of IP scholars.

Clinical Trial Transparency and Patent Prior Art

Apr 30, 2026 Lisa Larrimore OuelletteAdd a Comment

The push for greater clinical trial transparency is typically framed as a conflict between companies’ interest in protecting trade secrets and the public’s interest in accessing health-relevant information. But a new article by economists Dennis Byrski and Lucy Xiaolu Wang analyzes an underappreciated dimension of this debate: clinical trial disclosure also affects patenting. When trial data becomes public, it creates prior art that can block subsequent patents related to the drug. The authors document that European marketing authorization—which requires substantial data disclosure—leads to significant declines in secondary patenting on drug modifications like new dosages and formulations. The result is a regulatory check on pharmaceutical patent “evergreening”: once authorization-related disclosures enter the public domain, many incremental follow-on patents become harder to obtain.

Timing is critical in patent law. To obtain a patent in the United States, the European Patent Office, or other jurisdictions, an applicant must show that their invention is new and nonobvious (or in Europe, has an “inventive step”) compared with the prior art, which includes a host of publications and activities that predate the patent filing (including sale of the drug itself for post-marketing patents). At the same time, applicants must disclose sufficient information about the invention; for pharmaceutical patents, human clinical trial data generally are not required, but applicants must provide a credible reason to expect the drug to work, such as in vitro or in vivo testing. These requirements place temporal limits on patenting: applications must be filed after gathering sufficient evidence to satisfy the disclosure requirements, but before prior art destroys the invention’s novelty.

An important challenge for studying European pharmaceutical patenting is linking patents and drugs. Europe does not have an equivalent of the FDA’s Orange Book linking approved drugs with their patents, so Byrski and Wang construct a novel dataset. They link drugs authorized by the European Medicines Agency (EMA) to the core patent for which a patent term extension is sought through a Supplementary Protection Certificate. They use additional databases to gather information on the subsequent European patents that cite these core patents, treating these forward citations as a window into follow-on research activity. Their empirical strategy then exploits variation in approval lags—the time between the primary patent filing and the drug’s first EU marketing authorization. Because development time is uncertain at the time of patent filing, drugs with different lags can be compared to study the effect of authorization.

Their main result is that follow-on patenting declines after marketing authorization, especially for the kinds of patenting they view as most associated with “strategic” behavior. The decline is concentrated in secondary patents on subsidiary drug features such as dosages and formulations, and especially in secondary patents that stay within the same therapeutic space as the original drug. In contrast, they do not observe the same drop in citations associated with product patents covering new molecular entities, or in follow-on patenting aimed at different disease areas. The authors interpret this pattern as reassuring for meaningful follow-on innovation: firms continue to pursue new compounds and explore new therapeutic indications, but the disclosures accompanying marketing authorization make it harder to secure patents on marginal modifications within the same therapeutic space.

Byrski and Wang present various additional analyses supporting their interpretation that the decline is driven by prior art generated during marketing authorization. They find no similar decline at the end of phase II trials, a milestone that similarly reduces uncertainty about drug quality but involves less comprehensive data disclosure and thus does not create the same prior art obstacles. They also show that the post-authorization drop is concentrated in citations that signal legal vulnerability—examiner-generated citations and “novelty-threatening” citations (categories X or Y in the European Patent Office search report)—suggesting that the forgone follow-on patents are disproportionately ones that are very similar to the core patent. The paper supplements these results with robustness checks, including by examining a subset of drugs with constant market exclusivity despite varying approval lags, and by conducting an instrumental variable analysis using the time from patent filing to the start of phase I trials.

These findings add a new dimension to ongoing debates about clinical trial transparency. Even before disclosure to regulators, clinical trials can block later patents, though trial sponsors can prevent the trial from becoming prior art with confidentiality agreements. But regulators are changing this. In the United States, most drug trials (excluding phase I studies) must be registered at ClinicalTrials.gov within 21 days of enrolling the first participant, including details such as the disease and intervention being studied, although enforcement has been inconsistent. These registrations have been used to invalidate later-filed patents. New transparency requirements will likely amplify these effects: the EU’s 2022 Clinical Trials Regulation requires more comprehensive disclosure (including mandatory registration of all clinical trials, not just those tied to authorization), and there is push for the FDA to more vigorously enforce the U.S. requirements.

To be sure, distinguishing strategic patenting from meaningful follow-on innovation is difficult, and Byrski and Wang have to rely on proxies with potentially unaddressed confounders. But the data they present is suggestive of an optimistic take, that mandatory clinical trial disclosures could cut down on low-value patents on trivial modifications—which may delay generic competition without delivering meaningful therapeutic benefits—without obviously discouraging the kinds of follow-on efforts that generate new therapeutic value. This pattern is also consistent with recent work suggesting that high-value follow-on innovation is most responsive to forms of protection that meaningfully delay generic entry, rather than to incremental secondary patents that raise the costs of generic entry but do little to extend effective exclusivity.

Even so, the net welfare effect of these changes to patenting is nonobvious. For example, by incentivizing all patents to be filed earlier, greater clinical trial transparency will also reduce the effective exclusivity period so that some drugs—or some new indications for existing drugs—on the margins might never be developed. At the same time, because patent law does not generally require proof of clinical benefit, this dynamic may also induce a perverse substitution away from evidence-generating clinical trials and toward secondary patenting strategies that avoid disclosure-creating trials altogether, even where additional clinical evidence would be socially valuable. And even if these changes are accompanied by efforts to require disclosure of more evidence before firms may obtain a patent, the combination of earlier prior-art creation and heightened disclosure requirements could greatly narrow—and in some cases eliminate—the window between when companies possess patentable information and when it becomes prior art. Byrski and Wang’s data cannot resolve how these effects should be balanced, but both their conceptual framing and empirical contribution will be important to ongoing policy discussions of regulatory data transparency.

Dynamic Inventorship

Apr 2, 2026 Laura Pedraza-FariñaAdd a Comment

Inventors and their inventions are the building blocks of patent law: There simply is no patent law without inventors who seek to patent their inventions. One might think that a concept as foundational as inventorship would be both well-settled and extensively argued in legal opinions. But that is not the case. In fact, understanding who counts as an inventor and what constitutes an invention has surprisingly flown below the radar both in patent law scholarship and judicial opinions. In her article, The Inventorship Fallacy, Amy Motomura helps us with a deeply-researched and carefully-parsed analysis of the myriad and often contradictory ways in which courts have defined the “inventor” and the “invention.”

Motomura’s article makes a number of important contributions to the literature. First, it sheds light on the inventorship doctrine’s hidden role in policing the boundaries of related patent filings (what she calls the “indirect” role of inventorship). It then provides a taxonomy for how to think about who counts as an inventor, disaggregating the concept into three strands: manner, timing and substance. Ultimately, her inquiry into how courts define the “substance” of inventorship—that is, what a participant must contribute to become a true inventor—leads her to a second key descriptive contribution: defining who counts as an inventor requires defining what counts as an invention for inventorship purposes. This task, in turn, has no clear doctrinal answer. Rather, the Federal Circuit has implicitly articulated three mutually exclusive understandings of the invention as reflected in (1) the full scope of the claims; (2) only the novel and nonobvious elements of the claims; or (3) only the “not-well-known” or “not publicly accessible” elements of the claims.

Normatively, there are multiple ways to understand “the invention,” ways that go beyond what is perhaps the most traditional approach of seeing the invention as coterminous with the claims. The article closes by considering how these multiple conceptions of “the invention” address inventorship’s direct and indirect functions. They are an uneasy fit. No single definition of “the invention” can successfully fulfill both the direct and indirect functions of the inventorship doctrine, in large part because inventorship turns out to be a dynamic, “temporally unstable,” (P. 2453) concept. Inventors must be named early in patent prosecution, but all existing theories of inventorship subject inventorship to change, either through new information about the content of the prior art or through changes in claim construction.

Given Motomura’s diagnosis, the pressing question becomes: what next? Professor Motomura leaves a normative solution for another article—emphasizing that the doctrinal ambiguities and failures she has unearthed make the case for reform but provide no answers for how that reform should proceed.

In the next few paragraphs, I consider three avenues for future research that the Article opens up: (1) A deeper analysis of the relationship between inventorship’s indirect functions and the structure of patent law; (2) How do actual inventive communities decide whom to name as an inventor? How do these naming conventions overlap with conventions around scientific authorship? (Understanding the actual, on-the-ground naming practices of innovator communities might give us a grounded way to reconstruct what inventorship should normatively look like.) And, finally, (3) Given inventorship’s temporal instability, should the PTO adopt the “broadest reasonable inventive unit”– in a manner akin to its approach to claim construction during prosecution?

Inventorship’s Indirect Functions and the Privileging of Stable Inventive Entities
Professor Motomura highlights how inventorship structures the relationship among related patents. First, inventors matter for continuation practice because to claim priority to an earlier-filed application, the later application must have at least one inventor in common with the earlier one. Second, if two patent applications are filed by the same inventive entity (that is, if they share identical inventorship), the earlier-filed application will not count as prior art vis-à-vis the second one so long as it is filed within a year of the earlier-filed application becoming publicly available. Third, if two patents are sufficiently related and have identical ownership, obviousness-type double patenting will allow both to issue so long as their patent terms expire at the same time (through the filing of a terminal disclaimer).

Taken together, these three rules (and in particular the last two) give significant preference to stable inventive teams. In other words, an inventive team is allowed to obtain what in effect amounts to broader patent rights both by avoiding having to show later-filed patents are both novel and nonobvious over earlier ones, and through obviousness-type double patenting. In an earlier piece, Professor Motomura engaged with the justifications for these “own-prior-art” exceptions.¹ She reasoned that own-prior-art exceptions exist because innovation does not occur in discrete, fully formed jumps; rather, inventive entities make continuous, often incremental innovation.²

Nevertheless, by tying own-prior-art exceptions to the stability of an inventive entity, patent law appears to have created a prospect-like right that enables a single inventive entity to build broad patent estates incrementally. If this perspective is correct, the indirect functions of inventorship not only structure the relationship among patents but reveal a latent “prospect” feature of the patent system that concentrates patent ownership and management into the inventive entity’s hands.

On-the-ground Inventorship Norms
Professor Motomura recognizes the dynamic nature of inventorship and closes her article by asking:

“Are applicants naming inventors based on their subjective view of what is patentable? Their view of what is not well known? The full language of the claims? Given the doctrinal ambiguity . . . applicants are surely inconsistent in their approaches to naming inventors.” (P. 2472.)

These questions are ripe for on-the-ground investigation. A rich literature in scientific authorship norms provides a promising starting point. For example, in The Collective Author, Peter Galison details the complex set of authorship norms that emerged in the community of physicists at the Stanford Linear Accelerator Center project, and which aimed to balance both unity in the creative team and individual attribution.³ And Mario Biagioli has written about how, in scientific communities, authorship seeks to both assign credit and responsibility for a particular set of results.⁴ Interestingly, one scientific journal used the word “substantial contribution” to police who should be added as an author on a scientific paper, a standard that is somewhat reminiscent of the Federal Circuit’s requirement that an inventor’s contribution be “not insignificant in quality.” (P. 2444.) Conversely, critics of this approach have called for listing as a “contributor” to a scientific work each person who has “added usefully to the work”—a more inclusive approach.⁵ Perhaps current debates about scientific authorship mirror latent conceptions of inventorship in patent opinions. And these debates, as well as the on-the-ground practices of scientific communities, may help inform who ultimately should count as an inventor.

The Broadest Reasonable Inventive Unit?
Finally, the dynamic nature of inventorship may counsel a precautionary approach of sorts. The PTO could take the position that, during patent litigation, when important extrinsic facts about inventorship are not yet known, the relevant unit of analysis will be a capacious “broadest reasonable inventive unit”—mimicking the PTO’s approach to claim construction. This approach would have the virtue of sidestepping disagreements among different theories of inventorship. On the other hand, it may prove too inclusive: allowing tenuous claims to inventorship from individuals who did not contribute to the invention’s point of novelty, and undermining patent law’s incentive and attribution functions.

Inspiration versus Authorship

Mar 3, 2026 David FagundesAdd a Comment

Abe Lincoln was fond of relating a story about a lawyer who tried to argue that a calf had five legs by calling its tail a leg. The folksy Lincolnian upshot was that this lawyer not only lost, but also looked foolish in the process, because simply calling a tail a leg does not make it so.

Mark Lemley’s Authoring While Dead spins a copyright version of Abe’s old yarn. Songwriters have recently begun listing as co-authors of their musical works artists who cannot be regarded as “authors” under any remotely plausible reading of the Copyright Act. Lemley’s vivid article explores the origins and rapid ascension of this industry practice. He explains with welcome drollery why this is the copyright equivalent of calling a tail a leg. He further offers a caution why what may seem like mere formalism, in fact, poses serious problems for copyright law.

The first thing I liked (lots) about Authoring While Dead was that I discovered something that was entirely new to me: In the past couple of decades, songwriters have responded to allegations of copyright infringement by offering to settle such disputes, not only with cash or an ownership interest, but even co-authorship credit to the accuser.

What makes Lemley’s article particularly engaging is that it’s chock full of colorful examples of so-called “interpolation credit.” I’ll give one of the most extreme examples here: The lyrics of The Killers’ Run for Cover includes the phrase “redemption song.” Run for Cover is not a reggae song, and it bears no musical or lyrical resemblance to the classic reggae anthem Redemption Song. Yet, when the estate of Bob Marley—who once authored Redemption Song—made (legally unavailing) noises about copyright infringement, The Killers agreed to add Marley as a co-author of Run for Cover. By doing so, The Killers apparently conceded that their 2017 track was a collaboration with an artist who died in 1981, when the band’s members were all about five years old.

Authoring While Dead explains with a welcome dose of wit that tossing around authorship credit to any artist who may have influenced you is not at all what the Copyright Act means by the term. “Author” is not defined in the statute and so remains enigmatic in some respects, but it is well understood that it means that the individual intentionally contributed some protected expression to the work of authorship. Joint authorship, in turn, means that *all* contributors to a work agree that they are consciously aware of the act of creation and buy in to the collaboration giving rise to the work. A decades-old anthem might inspire or influence a more recent composition, but that doesn’t make the author of the earlier work a conscious contributor to the creativity embodied by the new one.

The legal analysis in Authoring While Dead is straightforward, thanks in large part to Lemley’s lucid takedown of the false elision of influence and authorship. Somewhat harder, though, is sorting out the objection to this trend. If The Killers want to say Bob Marley is a co-author of Run for Cover, and the Marley estate is good with it, why should anyone object?

Authoring While Dead does an outstanding job of laying out why objecting to this practice is more than just a formalistic quibble. Adding “authors” who aren’t statutorily valid authors to a work upends the length of copyright terms, which are measured by authors’ lives. It muddies the termination of transfer right by introducing new claimants who may seek (or resist) cancellation of licenses of the work. And it makes a hash of licensing, royalties, and other rights allocations, especially because newly added authors often claim an outsized share of copyright ownership.

The deeper problem that Lemley identifies with “interpolation credits” is that as pervades the music industry, artists and labels and music publishers may begin to treat this fractured, expanded notion of authorship as valid. Norms can, and sometimes do, become industry standards even when they are not compelled by law. The film industry, for example, does life story rights deals with subjects of docudramas, even though no body of law creates an exclusive right in the facts that comprise one’s life. Here, too, as more and more artists and entities seek “interpolation credit” and demand authorship as compensation, industry practice threatens to become more unmoored from copyright law.

Authoring While Dead proposes a plausible solution, one that begins with Lemley asking what explains the surge in desire for “interpolation credit.” He locates the answer in a notion foreign (literally and figuratively) to U.S. copyright law: moral rights. The desire to insist on attribution is not rooted in something practical like seeking more royalties. It’s an artist’s understandable desire to be recognized as an influence on later work. To that end, Lemley suggests that the solution to the problem should be giving owners of earlier works “inspiration credit.” This would be a right to get credited without the later artist having to cede authorship or ownership—a right that looks a lot like the kind of attribution mandatory in continental legal systems.

This solution has promise, but my view is that Lemley is being too generous to the parties demanding interpolation credit. Sure, many or even most of them just want to be recognized. But from reading about the dozens of disputes involving interpolation credit catalogued in Authoring While Dead, it sure seems like a lot of them are also motivated by the desire to take advantage of what seems like a juicy new way to squeeze money out of a copyright catalogue.

Still, Lemley’s proposal seems promising precisely because it would force the right kind of choice on those seeking attribution. If what you want is just due recognition, then seek inspiration credit. If you deserve it, the law will back you up. No legal process is free, but the entities and older, wealthier artists who so often seek this form of credit can likely afford it. And if artists aren’t willing to pursue this form of credit, that tells you that recognition wasn’t that valuable to them in the first place. Of course, this leaves seekers of inspiration credit with (possible) recognition but no money. But it’s not like there’s no option there: If what authors really want is money, then assert a successful copyright infringement claim. But if your only basis for asserting infringement is some diffuse notion of “influence,” you’re going to lose. In suggesting a formal option for securing credit then, Lemley’s proposal would channel parties motivated by a desire for recognition versus a desire for profit into the place each belongs.

IP Savvy at the U.S. Border

Jan 30, 2026 Margo BagleyAdd a Comment

Some years ago, I reviewed a book about patent office administration, a topic even the book’s author considered “excruciatingly dull”.⁶ As such, I had low expectations for the book but was delightfully surprised by how engaging it was. I have experienced déjà vu with Jorge L. Contreras’ short article, The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights. An article on a topic that I would have expected to be boring in fact was quite enlightening in important ways and a pleasure to read.

I may not be alone among Intellectual Property (IP) law scholars in acknowledging a lacuna in my knowledge of IP enforcement at the U.S. border. For many of us, the topic may surface in course discussions about, inter alia, the benefits of federal trademark registration on the principal register or litigation at the International Trade Commission (ITC), but border enforcement is seldom explored in any depth.

Professor Contreras’ concise yet engrossing piece largely fills this gap. His discussion of the interplay between the treatment of different forms of IP, the different sources of jurisdiction and enforcement authority, and different actors (IP owners, importers, the ITC, district courts and US attorneys) is fascinating, and far more complicated than I previously realized.

Professor Contreras begins by situating the historical importance of the Customs and Border Protection agency (CBP) — or Customs Service as it was called when established in 1789 — as one of the first (and for a time the largest) federal agencies. It once accounted for 95% of US government revenue in the mid-1800s. He deftly explains the distinctions between CBP and a different and more controversial Department of Homeland Security (DHS) agency, Immigration and Customs Enforcement (ICE), and the complex network of CBP offices and functions. Some of CBP staff report through DHS, while others report to the Department of the Treasury.

Professor Contreras also provides an interesting history of the evolution and expansion of the ITC and its role in IP rights adjudication and enforcement. The article is chock full of insights that paint a surprising (and encouraging) picture of CBP’s IP actions and expertise. Preventing the importation of articles that infringe U.S. IP rights is a core function of the CBP under its trade enforcement mission, but this agency also has counterterrorism and border security responsibilities. In 2024 it seized more than 30 million infringing handbags, clothing, counterfeit pharmaceuticals, and other articles.

Yet, as Professor Contreras notes, the CBP has been little studied and is often dismissed as a policing body that lacks sophisticated IP expertise. The article’s discussion of the actual IP activities of CBP is quite extensive. Consider the following:

• Before seizing goods at the border, CBP must generally assess whether the goods infringe a duly registered copyright or trademark, or violate an exclusion order (issued by the ITC) or court injunction relating to patent or other IP infringement. It often needs to respond to objections to seizures and or/defend its seizure decisions. This can entail further investigations of the alleged infringement.
• CBP often meets with parties to an ITC action to discuss the scope and execution of an exclusion order and to discuss with respondents design-around possibilities that may avoid infringement. In addition, the ITC may grant CBP the authority to unilaterally permit products deemed to be successful design-arounds to be imported.
• CBP headquarters employs patent attorneys to assist with infringement determinations, both literal and under the doctrine of equivalents.
• CBP conducts Rule 177 inter partes proceedings in which a respondent may seek and obtain a pre-import ruling, on an expedited basis, that goods do not infringe. These rulings are available to the public and, of course, require the exercise of IP infringement expertise.
• The CBP must also address substantive infringement issues in formal protests filed by importers, and challenges can be heard and decided on an inter partes basis at the discretion of the CBP.
• CBP also has laboratories and conducts chemical, physical, electrical and other tests to assess infringement. CBP also often invites patent holders to provide infringement training and instruction to its officers.
• Moreover, the Federal Circuit has rejected the notion that CBP lacks the expertise to adequately enforce exclusion orders (which involves assessing infringement).

These activities suggest that CBP is capable of engaging in sophisticated infringement assessments, discussions, negotiations, and adjudications across a range of IP areas and products. They may not always get it right, but that is true of the ITC and courts as well. However, shedding light on the range of CBP tools, resources, and activities as Professor Contreras has done certainly creates the opportunity for a different narrative regarding the agency’s expertise.

After reading this article and further exploring some of its contentions, I have gained not only a greater knowledge of the IP enforcement work of the CBP, but also an enhanced appreciation for the ability of the CBP to engage in savvy technical and legal assessments of IP infringement at the border. We should all be grateful to Professor Contreras for writing this accessible and illuminating article on the IP activities and acumen of the CBP and I highly recommend it to anyone who has ever had questions about the functions of this critical agency.

Copyright for Dummies Humans

Dec 17, 2025 Kristelia GarcíaAdd a Comment

From the use of copyright to combat revenge porn, to protecting slavish reproductions of public domain artworks, copyright law is sometimes invoked in circumstances where it either doesn’t, or shouldn’t, apply.⁷ Smith’s latest piece adds another (wonderful!) example to the growing list: the utilization of copyright to protect works that faithfully copy naturally occurring objects—from animals and flowers, to rocks and wood grain. In doing so, she sifts through a thicket of discordant case law to tease out a point of agreement: copyright protects only human contributions. This declaration should sound profoundly familiar to those following the ongoing battle between copyright and generative AI, in which the Copyright Office has explicitly limited registration to works—or the portion(s) of works—attributable to a human. Smith’s fascinating dissection of the case law surrounding copyright for natural objects demonstrates that there’s really nothing new about the copyrightability questions presented by generative AI, while her prescription for a “work of nature” doctrine offers a prospective blueprint for a “work of humans” doctrine with application far beyond the nature context.

In the 2003 case of Satava v. Lowry, the Ninth Circuit considered the copyrightability of glass-in-glass jellyfish sculptures. Ultimately, it issued an opinion that governs the copyrightability of creative works concerning natural objects today; namely, that “no copyright protection may be afforded to the idea of producing a glass-in-glass jellyfish sculpture or to elements of expression that naturally follow from the idea of such a sculpture.” The first part of this holding—that no copyright protection extends to the idea of a glass-in-glass jellyfish sculpture—merely restates copyright’s long-standing idea-expression dichotomy, which says that copyright protects only expressions, and not mere ideas. This explains, among other things, the curiously extensive collection of young adult vampire romance novels.⁸

The second part of the holding—that copyright protection should additionally be withheld from any part of an expression that naturally follows from the idea—lends substantially less clarity. In its relatively short opinion, the Ninth Circuit makes several (ultimately unsatisfying, in my opinion) attempts to unpack this: They assert that copyright won’t protect any aspects of the sculptures resulting from jellyfish physiology, for example, nor their vertical depiction, as jellyfish swim vertically in nature. The court concludes that “[n]ature gives us ideas of animals in their natural surroundings…[t]hese ideas, first expressed by nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.”

Smith’s thorough, quirky, and captivating deep-dive into the jurisprudence of artists’ attempts to copyright their works created by, duplicating, or inspired by nature, demonstrates that this holding has been applied with frustrating inconsistency, to the detriment of both artists and the public. Through analysis of cases ranging from museum-grade T. rex skeletons to bejeweled bee pendants to imitation wood flooring to stuffed animals, Smith identifies three broad categories of works involving nature: (1) works created by nature, (2) works duplicating nature, and (3) works inspired by nature. The first category can be dealt with summarily: no copyright protection for, say, a piece of driftwood shaped by a river’s currents, because copyright requires a work to be created by a human being. The second category, which Smith defines as works technically authored by humans but which are, by design, exact duplicates of natural objects—such as a mold of an actual stone—presents only slightly more friction: slavish copies are typically devoid of even the modicum of creativity required for copyright protection. In other words, exact replicas of naturally-occurring phenomena don’t involve a sufficient amount of human intervention, and so they too don’t merit copyright protection.

The third category is where things get interesting, and where Smith offers an eloquent and timely intervention that urges consideration of copyright validity, actual copying, and substantial similarity. Beginning with validity, Smith reminds us that a copyrightable work must involve human creativity and something beyond what is readily observable in nature, and suggests (convincingly) that the merger doctrine can help to delineate creative choices made by a human from those dictated by nature. When it comes to claims for copyright infringement, Smith first emphasizes that copyright’s “actual copying” requirement excludes expression independently created by a defendant observing the same natural phenomena. Then and only then, should we filter out the elements owing to nature and focus on substantial similarity between the original (and additional) human-added expression(s). In so doing, she concludes, we can encourage both artistic and scientific progress while preserving the public domain of nature that belongs to all of us. Smith’s article is a fun and informative read, highly recommended for those seeking to better understand copyright law and its limitations.