Apr 2, 2026 Laura Pedraza-Fariña
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. 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.
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. And Mario Biagioli has written about how, in scientific communities, authorship seeks to both assign credit and responsibility for a particular set of results. 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. 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.
Mar 3, 2026 David Fagundes
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.
Jan 30, 2026 Margo Bagley
Jorge L. Contreras,
The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights, 59
Int’l Law. __ (forthcoming), available at
SSRN (Sept. 2, 2025).
Some years ago, I reviewed a book about patent office administration, a topic even the book’s author considered “excruciatingly dull”. 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.
Cite as: Margo Bagley,
IP Savvy at the U.S. Border, JOTWELL
(January 30, 2026) (reviewing Jorge L. Contreras,
The Role of U.S. Customs and Border Protection in Enforcing Intellectual Property Rights, 59
Int’l Law. __ (forthcoming), available at SSRN (Sept. 2, 2025)),
https://ip.jotwell.com/ip-savvy-at-the-u-s-border/.
Dec 17, 2025 Kristelia García
Cathay Y. N. Smith,
Copyrighting Nature, 79
Vand. L. Rev. __ (forthcoming 2026), available at
SSRN (May 22, 2025).
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. 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.
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.
Cite as: Kristelia García,
Copyright for Dummies Humans, JOTWELL
(December 17, 2025) (reviewing Cathay Y. N. Smith,
Copyrighting Nature, 79
Vand. L. Rev. __ (forthcoming 2026), available at SSRN (May 22, 2025)),
https://ip.jotwell.com/copyright-for-dummies-humans/.
Nov 20, 2025 Jessica Silbey
Abraham Drassinower,
The Work of Readership in Copyright, available at
SSRN (May 21, 2024).
In this essay, Abraham Drassinower updates the argument in his 2015 book What’s Wrong With Copying (Harvard University Press) with an elaboration of the nature of copyright’s public domain: it is a domain of unauthorized yet lawful copying. As in his book, Drassinower explains that the public domain is not properly understood as a problem of balancing between copyright’s public benefits and private rewards. Instead, he understands the public domain as part of authorship and thus inseparable from copyright’s construction.
The elaboration in this essay is his introduction of readership to the understanding of copyright’s public domain. As he says in its opening pages, “I will argue that the work of authorship in copyright law and doctrine is radically inseparable from what we may call the work of readership. Setting forth the immanence of readership in authorship will help construe the public domain as a necessary presupposition of, rather than a constraint on, authorship.” (P. 3.)
Before outlining Drassinower’s argument, I want to explain why I love this essay:
First, Drassinower writes like a logician, building an intricate argument from very basic premises and brings the reader along step by step.
Second, despite its sophistication, his writing is conversational and intimate, as if he’s sitting and speaking with his reader.
Third, he does not import any methodology external to law to make his argument – e.g., economics, history, literature, sociology – deriving his argument from within copyright doctrine itself.
Fourth, although his book was published in 2015, this essay reminded me of the book’s timelessness, which is remarkable in a copyright field evolving rapidly with technological evolution.
Fifth and finally, this essay helped me think about the on-going AI and copyright debates in a new way – E.g, Are the inputs to gen-AI models infringing uses? — which I appreciate because I think we need some new ways of thinking about these problems.
Drassinower’s main contribution in this essay is to think about copyright subject matter as always already involving the public – the author’s audience – and thus centering readership as essential to copyright’s purpose. He says that although copyright is about authors, it is centrally about “the relation between authors and publics, creators and users” (P. 5) because an original work of expression (copyright’s subject matter) is addressed to an audience. He quotes Jorge Luis Borges to make the point clear that authors are not creating objects or things when producing an original work of expression, but initiating a process between people. “Picking up a book and opening it holds the possibility of an aesthetic happening. What are the words resting in a book? What are those dead symbols? Absolutely nothing. What is a book if we do not open it? It is simply a cube of paper and leather … but if we read it something strange happens, I believe it changes every time.” (P. 25.) This view, for Drassinower, follows from copyright’s foundational idea/expression dichotomy, which allows all authors to repeat and build on the ideas of others, facilitating and proliferating authorship through response.
Drassinower starts with what he admits is the obvious copyright proposition that “lawful copying is part and parcel of copyright” (P. 9) because not all copying is infringement. From there, however, he explains that because the kind of copying that is lawful includes criticism, parody, research, and the free availability of ideas, the immanence of readers and responses to authorship follows directly. Reading and authorial response is built into copyright law, as a bilateral construct to authorship and original works of expression. Readership in this way is part of copyright’s public “derived as an unfolding of the fundamentals of authorship itself. As a mode of public address, authorship necessarily implicates the audience it addresses. It contemplates responses.” (P. 12.)
What does this have to do with the copyright debates concerning generative AI? First, the AI debates are often (and most recently) about the copyrighted work as a thing which when copied to feed a large language model (LLM) is contested as an unlawful use. Second, the AI debates are often (and again most recently) about the harm that LLMs might cause authors through their capacity for market substitution. These are usually questions of the idea/expression dichotomy and fair use, and to my mind not hard questions at that. But new court decisions (linked above) have muddied these doctrinal waters, presumably because generative AI feels like an existential threat to many authors (and publishers). Drassinower’s essay clarifies these issues in novel ways.
His essay on the “work of readership” reminds us that these copyright and AI debates misunderstand copyright subject matter as an object rather than a relation, a product rather than an intersubjective process. A work of authorship creates an address – an engagement – as a shared activity. And it is that activity that must be “protected” by law – the thinking activity that demands a response – not the thing copied (to be or not to be ingested by a machine).
By this logic, technical uses (as tools) are not the kind of use copyright cares about because they have nothing to do with the author as speaker (or reader as responder). And personal uses or private copies likewise have nothing to do with copyright because “copying for personal use has nothing to do with addressing another.” (P. 33.) This means copies made and not distributed are also part of copyright’s public domain. Taken seriously, these two propositions would render lawful the copying done to make LLM models produced even through unauthorized downloads of millions of books and even if (perhaps especially if!) those LLM models can produce works that readers prefer to read.
I found Drassinower’s essay provocative in the way controversial and novel frameworks often are. Much like his book on which this essay builds, I predict there is more to mine in this essay, and I hope people read it as it was meant to provoke a response!
Oct 21, 2025 Alexandra Roberts
What do CHEROKEE cars, the Atlanta Braves baseball team, and Urban Outfitters’ “Navajo” panties have in common? All are examples of brands and teams adopting Native American tribal names, terms, and stereotypes as their trademarks. What does that practice reflect about the complex relationship between trademark law and native peoples?
In Tradition Is a Trap, Professor Jessica Kiser argues that US trademark law has been, and remains, ineffective and biased when it comes to acknowledging, let alone protecting, the interests of Native Americans as individuals and as a people. Kiser’s article examines how trademark law has treated Native American tribal names and culture, including through application of the Lanham Act’s former bar on registration of disparaging marks, its prohibition on the registration of trademarks that falsely suggest a connection with institutions, and its standards around rights acquisition. It builds on and contributes to other important work in Critical Race Theory, Decolonial Theory, and Race/IP fields.
Through representative stories and empirical data, Kiser considers various doctrines as applied to both marks owned by Native American tribes and marks owned or asserted by others that incorporate tribal names, terms, mascots, and trade dress. She reports that Native American tribes have not been able to access trademark law and avail themselves of its protections and exclusive rights in the ways that corporations and non-minoritized individuals routinely can and do.
This finding holds true whether the tribes and tribal members are applicants, registrants, or litigants. By setting the trademark stories she tells against the backdrop of history and situating them in specific cultural moments—from the Trail of Tears to Boy Scouts “playing Indian” to racist advertising—Kiser demonstrates how tribal names and imagery became viewed as part of the public domain and Native American culture “transformed into something so unmoored from real Native Americans that it may be hard for the white majority to disentangle it from American cultural generally.”
The systematic relocation, starvation, and assimilation of Native people and their concurrent erasure from awareness left many tribal names unknown to most Americans, and thus in some cases ineligible for trademark law’s protections. As a result, corporations like Jeep and Chevrolet have been able not only to choose, use, and receive protection for tribe names as trademarks, but also to make their products the primary associations consumers have with those names.
By drawing attention to and revealing the complex relationship between Native Americans and American trademark law, Tradition is a Trap makes an important contribution to our understanding of trademark law’s development, application, evolution, and harms. Highlighting “the ways in which trademark law’s focus on the past and on ‘imagined traditions’ harms Native American communities by holding them in a historically-frozen, disadvantaged, colonial context,” Kiser takes readers below the surface to better understand the ways that trademark law can injure and erase communities.
The Lanham Act is often regarded as neutral by courts and scholars, especially after the Supreme Court’s decisions in Tam and Brunetti struck down its prohibitions on registration of disparaging, scandalous, and immoral marks. Trademark is a Trap reveals that it is precisely those facially neutral tenets of trademark law that render it ill-equipped to remedy the inequality and racial hierarchies it replicates and perpetuates. “Trademark common law does not ask who uses a mark most efficiently, who uses the mark better, or whose use of the mark most benefits society. It asks who used the mark first,” Kiser notes, even when members of marginalized groups might have lacked the legal or economic ability to make such use.
Ultimately, the article demonstrates why when it comes to trademark law, the master’s tools cannot dismantle the master’s house. Statutory or jurisprudential changes to the Lanham Act can never adequately redress the grievances Kiser articulates. Native Americans will need to look outside of the formal trademark legal system to protect their interests, employing strategies like shaming corporations, educating the public, shifting consumer perception, building coalitions with other marginalized groups, and broadening the tent to enlist those who claim Native American ancestry without tribal affiliation.
Professor Kiser’s work lays bare not only how trademark law has failed to serve Native American tribe members and trademark owners, but why it is that trademark law supports colonizer interests at the expense of those who lack power—a question we ought to ask more often and in more contexts when considering trademark law and policy.
Sep 22, 2025 Graeme Dinwoodie
Michael Goodyear,
Common Law Notice-and-Takedown, __
NYU J. Intell. Prop. & Ent. L. __ (forthcoming), available at
SSRN (April 25, 2025).
As Michael Goodyear notes in Common Law Notice-and-Takedown, immunity for online platforms is very much on the legislative agenda after many years of relative stability. Politicians from the left and right in the United States have reacted for ostensibly different reasons to the surfeit of misinformation online by suggesting that existing statutory regimes that provide (conditional) immunity for platforms need revisiting. But elimination or modification of specific statutory safe harbors for platforms will not of itself render platforms liable for the sins of their wrongdoing customers.
Instead, that will turn on whether a platform’s conduct falls within existing causes of action, most likely (but perhaps not exclusively) under theories of secondary liability. Indeed, even complete elimination of statutory safe harbors will not signal the end of notice and takedown systems. The roots of notice and takedown in the copyright context can be found in Judge Whyte’s 1995 Netcom decision, which to some extent was implemented three years later in greater detail by the Digital Millennium Copyright Act (DMCA).
Moreover, notice and takedown systems operate to insulate platforms for liability for trademark infringements perpetrated by users, even though trademark law operates both outside Section 230 of the Communications Decency Act and without any regime-specific parallel to the DMCA. The common law standard for secondary trademark liability, most authoritatively articulated by the Second Circuit in Tiffany v eBay, encourages such systems, but without the specifics that one finds in the detail of the copyright statute.
In Common Law Notice-and-Takedown, Professor Goodyear explores the notice and takedown practices that have developed in the trademark space by sampling the takedown policies of forty-five large platforms of a variety of types (such as social media, e-commerce, print on demand). In the European Union, the European Commission facilitated a Memorandum of Understanding (MoU) between major online platforms and trademark owners that sketched out best notice and takedown practices and has in turn generated periodic reports that have shown some light on evolving norms.
Lacking a similar government intervention in the United States, academic work opening a window into how trademarks play into platform practices, such as found in Jeanne Fromer and Mark McKenna’s recent paper on Amazon, will be invaluable. Goodyear’s article is an important contribution in that regard, though he candidly acknowledges both that he studied only publicly available material and that transparency reports by several platforms offer more quantitative material that is also worth mining (although some reports contain numbers at only a very general level).
Goodyear reports that platforms have taken advantage of the latitude afforded by the common law-grounded system and have wide variation in the information that they require of takedown requests beyond those made under the DMCA. The most surprising feature, as a conceptual matter, might be the need for a trademark registration despite the use-based nature of U.S. trademark rights. But this may only highlight the fact that commercial norms are as likely to be driven as much by pragmatic assessment of what procedures work best at scale as by a searching theoretical inquiry into the merits of any particular legal claim, and the common law grounding of the system allows such latitude in ways that a detailed statutory scheme might not.
Platforms have adopted an a la carte approach to whether to mimic other features of the DMCA scheme (such as repeat infringer policies and counter notice mechanisms, the latter of which Goodyear reports has been adopted by a sizeable number of platforms despite the lack of statutory immunity that the DMCA confers for those operating such a feature). Again, this should not be a surprise given the different level of granularity in the common law of trademarks and the DMCA. But it raises a longstanding question whether efficiency and certainty concerns should counsel for the adoption of a common set of immunity conditions across all forms of legal claims, elevating those concerns over the different formal legal conditions for liability in different areas.
Despite the room for innovation in trademark policies, Goodyear’s study confirms the strong influence of the DMCA (at least in setting a baseline and providing a suite of possible features). The pragmatic impulse towards replication of mechanisms that bring immunity in adjacent areas such as copyright is understandable, but the durability of such an approach might depend upon any number of moving variables. These include not only changes in the adjacent regime, but in parallel regimes in other major jurisdictions in which the platforms operate. The influence of the DMCA is arguably amplified by the fact that the counterpart EU system of safe harbors in the E-Commerce Directive is broadly similar and does apply beyond copyright. Indeed, courts in Europe move without much thought between case law involving immunity from different legal claims.
But within the last few years, the EU has reformed its core notice and takedown approach (first with the Directive on Copyright and Related Rights in the Digital Single Market and then with the Digital Services Act). It is not clear whether a platform’s route to efficient convergence of practices will in the near future be driven by rules in adjacent legal regimes or adjacent jurisdictions. It may be that the notional flexibilities of the common law system of notice and takedown that Goodyear nicely illuminates will effectively be over-ridden by details imposed by efficiency-seeking cross-border actors.
This is an invaluable article, and it should contribute to discussion of what the landscape might (and should) look like if notice and takedown operates according to more general principles rather than detailed statutory conditions. It also should stimulate follow-on work by others, particularly if accompanied by interrogations of data regarding the implementation of the different policies that Goodyear highlights.
Cite as: Graeme Dinwoodie,
The Future of Notice and Takedown?, JOTWELL
(September 22, 2025) (reviewing Michael Goodyear,
Common Law Notice-and-Takedown, __
NYU J. Intell. Prop. & Ent. L. __ (forthcoming), available at SSRN (April 25, 2025)),
https://ip.jotwell.com/the-future-of-notice-and-takedown/.
Aug 8, 2025 Christophe Geiger
While climate change brings unprecedented consequences for the environment, impacting the life of everyone through natural catastrophes and the dramatic alteration of the living conditions in entire regions, increasing attention has been paid by scholars in recent times to intellectual property and particular how it should be rethought to foster -or at least not to hinder- innovations that would have positive impact on the environment. In this context, calls for more sustainable intellectual property legislation and judicial applications thereof have become frequent.
In this context, Elena Izyumenko’s new article, Intellectual Property in the Age of the Environmental Crisis: How Trademarks and Copyright Challenge the Human Right to a Healthy Environment, is particularly timely and explores ways that sustainable development and environmental concerns could be better integrated within the intellectual property framework.
The originality of Izyumenko’s research lies in her proposal to use the human right to a healthy environment to reshape the contours of copyright and trademark law. While the use of human rights to rethink IP law is not new and constitutional concerns about certain developments in IP law have led to the emergence of an entire body of scholarship and case law on the interface of IP with human rights, Izyumenko’s is the first article that analyzes the emerging right to healthy environment and its potential consequences for our understanding of IP rights.
Izyumenko acknowledges that at the international level the human right to a healthy environment is still in the making, since the main international human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights do not explicitly include it in their catalogue of rights. However, she provides convincing examples taken from European and national constitutional practices to show how this “new generation” human right is gaining legal weight, both by “greening” more established human rights and by establishing a self-standing human right.
In support of the first approach, the article refers to a groundbreaking development in a recent decision of the Grand Chamber of the European Court on Human Rights, where the Court ruled that the “human right to private and family life includes individuals’ entitlement to effective protection from the serious adverse effect of climate change by State authorities”. (P. 882.) Other national courts in Europe had also previously grounded the right to a healthy environment in the protection of the right to life and physical integrity or in the right to private and family life.
The European Union has gone one step further in recognizing in its Charter of Fundamental Rights adopted in 2000 a specific self-standing human right entitled “environmental protection” (Article 37). The extent of the legal effect of this provision has been subject to debate, since it is formulated as a legal principle addressed to the EU institutions rather than a right. But Izyumenko cites several opinions of different Advocate Generals of the Court of Justice of the EU where Article 37 was elevated to “a right to environmental protection”. She thus concludes that the self-standing right to a healthy environment “is likely to soon play a more prominent role in the European legal landscape, including in the case law of the CJEU”. (P. 887.)
The core of the article’s argument is that current IP laws often fail to take sufficiently into account sustainability goals, in particular since pro-rightholders maximalist judicial interpretations of copyright and trademark law can significantly hinder repair, refurbishment and upcycling businesses. The author discusses the narrow current understanding of certain doctrines such as trademark and copyright exhaustion, which has been held by some courts not to cover altered goods or copies of the work, thus limiting the possibility to repair, refurbish, or upcycle broken or worn-out items. She then looks at other possible ways to legitimize these uses via trademark or copyright exceptions, demonstrating that in the absence of a general fair use exception such as in the US, the EU legal framework offers only limited immunity. Izyumenko proposes several possible fixes, including a change in approach by the CJEU to clarify that a trademark-protected sign might be considered non-distinctive in the context of repair, refurbishing or upcycling.
More broadly, Izyumenko proposes to reconcile IP protection with the human right to a healthy environment by using this emerging right to generate “environmental-friendly” interpretations of IP laws—to redefine the scope both of protection and of exceptions. Where this is not possible, an external application of the right to a healthy environment to IP should be encouraged, even if this would require establishing difficult “causal links between the IP-imposed restrictions on the business and the ultimate negative effects on the environment”. (P. 895.)
Admittedly, the proposals might resonate more to a European readership since European courts have already for many years used human rights arguments to remodel the boundaries of IP protection. It can be regretted that other IP rights such as patent law or design law have not been included in the scope of the article to make a more horizontal statement with regard to the necessity to “green” IP through the use of the right to a healthy environment. Nevertheless, this article is an important step toward both the proposal of an ethical and sustainable IP framework and the expansion of human rights arguments to further “constitutionalize” IP law through a holistic approach that integrates environmental issues.
Cite as: Christophe Geiger,
“Greening” Intellectual Property via Human Rights, JOTWELL
(August 8, 2025) (reviewing Elena Izyumenko,
Intellectual Property in the Age of the Environmental Crisis: How Trademarks and Copyright Challenge the Human Right to a Healthy Environment, 55
Int'l Rev. Intell. Prop. & Competition L. 864 (2024)),
https://ip.jotwell.com/greening-intellectual-property-via-human-rights/.
Jul 7, 2025 Michael W. Carroll
In Sedlik v. von Drachenberg, the jury had to decide whether a tattoo featuring Miles Davis was substantially similar to the photograph on which the tattoo was based. To do so, the court instructed the jury to exclude from consideration either work’s concept but to then to make “a holistic comparison that focuses on whether the works are substantially similar in the total concept and feel of the works.” How is a jury to exclude concepts from consideration only to then compare the works’ “total concept and feel?” In his article, Bruce Boyden persuasively explains how we got here and further argues that this is not the way to resolve questions of copyright infringement.
One of the article’s many contributions is to spotlight why developing a “substantial similarity” standard is complex because the issue bundles three distinct questions:
First, there is a question of amount: how much of the plaintiff’s material wound up in the defendant’s work? Second, there is a legal determination to be made: was the borrowed material the sort that the law should categorize as protected? And finally, there is a question of line-drawing: where is the threshold of impermissible borrowing, and did the defendant cross it? (P. 1101.)
Courts traditionally enjoyed great discretion when making these judgments because, prior to the 1950s, most suits sought equitable relief, allowing for case-by-case determinations. The article uses Learned Hand’s opinions in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), and Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir. 1936), to illustrate the point. Each opinion provides the reader with an extensive comparison of the narrative elements of the relevant works followed by Hand’s conclusory remarks declaring non-infringement in Nichols and infringement in Sheldon. The article argues that Hand used his expertise to exclude unprotectible elements from consideration before relying on intuition to decide whether the second work had taken too much from the first.
The article argues that by the 1960s, this intuitive decision-making style came under pressure because the types of works in copyright litigation became more varied and less immediately familiar to judges and the rise of the Legal Process School challenged the legitimacy of unelected judges rendering judgment without explanation or justification. The initial judicial response was to treat similarity as a factual question to be decided by whether a lay observer would recognize the second work as having been taken from the first. The article illustrates why this recognition standard was problematic because it did not require filtration of unprotectible material.
This problem was on full display in the article’s central case, Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970). The article argues that similarities between the competing greeting cards’ use of the same jokes and similarities of general illustrative style were permissible copying of ideas. The court nonetheless held that the defendant had infringed because the cards conveyed the same mood, and “[i]t appears to us that in total concept and feel the cards of United are the same as the copyrighted cards of Roth.” Id. at 1110.
While initially treated as a throw-away line, the Ninth Circuit, and then others, embraced “total concept and feel” as their infringement standard after enactment of the 1976 Act. One reason was that this “standard” provided wide discretion while giving the appearance of a summative judgment based on analysis of predicate questions without requiring any explication of these steps. The other was that it avoided the normative judgment required by the Second Circuit’s earlier “improper appropriation” standard.
The article also shows how courts repurposed a standard that initially supported an infringement finding based on comparison of unprotectible elements, focusing on the concept and feel, into a standard that supported a finding of lack of substantial similarity because the two works’ total concept and feel was not the same. The article then tells the story in rich detail of how two developments in procedural law have put pressure on continued use of the total concept and feel standard.
The Supreme Court’s clarification of the summary judgment standard gave courts reason to delegate the infringement question to juries. This has been problematic because “total concept and feel” may work as a post-hoc justification for expert decision-making, but it fails as a jury instruction. The result has been infringement findings that have troubled appellate courts, which have nonetheless felt compelled to affirm.
But, some courts recently have reclaimed their discretion over infringement determinations by using the Supreme Court’s plausibility standard for pleadings to resolve weak infringement claims as a matter of law on motions to dismiss. The article concludes that this strategy is too limited and that the better way forward is to jettison total concept and feel and replace it with a jury-suitable standard that requires more specific determinations about protectability and contextual comparison.
I agree with the large majority of the article’s arguments and its conclusion. More could be said, but it’s important to keep in mind two confounding variables that complicate this story. One is that the sweat-of-the-brow theory of copyrightability was not fully put to rest until the Court’s 1990 decision in Feist. As a result, substantial similarity analysis has been inconsistent because of differences of opinion about what counts as the unit of comparison.
The other is that many judges, including Hand in Nichols, treated the issues of fair use and substantial similarity as being coterminous, placing more weight on the question of substantiality of use. Congress resolved the question in favor of fair use as a distinct doctrine in § 107, which relieves some of the pressure on the policy-laden question of whether the amount copied was excessive. But some courts are overrelying on fair use as a result.
I agree with the article’s central thesis that decisions about substantial similarity should be explicable, and that this standard should play a meaningful gatekeeping role in copyright infringement analysis.
Jun 11, 2025 Christopher J. Buccafusco
Benjamin Sobel,
Copyright Accelerationism, 100
Chi.-Kent L. Rev. __ (forthcoming 2025), available at
SSRN (Dec. 8, 2023).
Benjamin Sobel has written a provocative new essay about copyright law’s role in the development of generative artificial intelligence, and I think all IP scholars should read it. His essay, Copyright Accelerationism, is the kind of creative scholarship that our field needs more of. It is being published in the Chicago-Kent Law Review’s “AI Disrupting Law” symposium issue.
As all readers will know, copyright law may stand in the way of further development of generative AI, because AI models are trained on millions (or billions?) of unlicensed copyrighted works. Authors and artists have sued the major AI platforms, and if those lawsuits are successful, they could dramatically hinder AI creation.
The response from most copyright scholars so far has been to argue that AI training should be protected as fair use. According to Sobel, though, this is simply a reflexive response to the habits learned during the last copyright wars—those against Disney and the recording and motion picture industries over expansive assertions of copyright scope and duration. Sobel refers to this approach of defending narrow copyright scope against expansive assertions by industry as copyright decelerationism.
Sobel warns, however, against continuing down this path in the new copyright war with generative AI. According to Sobel, even if the decelerationists’ fair use arguments win out, their victory will inevitably be a narrow one. AI “learning” will receive fair use protection, but real human learning will not. Sobel sees no reason why a decision allowing OpenAI to copy for purposes of learning would overturn cases like Texaco. He notes, “Could you imagine a defendant having the temerity to argue that she only torrented a Beatles album because she wanted to learn to write songs in the style of Lennon and McCartney? She’d be laughed out of court.”
Sobel predicts that a win for AI fair use wouldn’t benefit all forms of learning: “a rising tide for AI would not lift all boats! … [A] win for AI would be a win for AI—nothing more and nothing less.” He continues: “A copyright regime that makes these works available gratis to train AI but inhibits their circulation among human readers is a regime that misconceives ‘progress’ by defining it not as human engagement with expressive works but as a narrow sort of technological development.”
What’s to be done? Sobel’s response is that scholars who care about real human progress and creativity should completely invert their strategy. Instead of embracing deceleration or incremental minimalism, we should do the opposite: copyright accelerationism. We should insist on the rigid application of copyright doctrine to AI to heighten its contradictions and, effectively, make AI unworkable.
Embracing copyright law’s most regressive features—its trivial originality threshold, its lack of formalities, its extreme duration, and its limited fair use protections—would cast onto AI’s powerful overlords the task of reforming copyright law for everyone. Marc Andreessen, whose venture capital firm backs several AI startups, has argued that copyright liability “would upset at least a decade’s worth of investment-backed expectations” causing billions of dollars of harm. Sobel’s response: “Sounds like you might’ve made a bad bet. What would you be willing to do to salvage it?” A copyright accelerationist “would refuse to cede an inch on AI-specific exemptions from copyright liability and demand instead that the AI industrialists yoke their interests to those of the broader community of human readers and authors.”
To be clear, Sobel doesn’t adopt this position to kill AI. He explains, “The copyright accelerationist is agnostic towards AI; the future she seeks to realize is one that is of human self-development equally as accommodating through old-fashioned reading as it is of human self-development through the creation and use of expressive AI.” The goal is equal copyright treatment for human and robot readers and creators.
Now, Sobel’s essay is fairly light on the sorts of changes to copyright law that might accomplish these goals and on the political economy of how copyright accelerationists will bring their arguments to bear on AI’s backers. And Sobel admits these limits and recognizes that accelerationism is far from a sure bet. Nonetheless, to my mind, this is exactly the sort of work that our field needs—provocative shots across the bow of old-school minimalist thinking.
