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Intellectual Property and the Creative Arts: The Interplay Between Two Seemingly Different Fields

Published onApr 11, 2012
Intellectual Property and the Creative Arts: The Interplay Between Two Seemingly Different Fields

The Wake Forest Journal of Business and Intellectual Property Law hosted its annual symposium on March 23, 2012.  The symposium, entitled “Avenue of the Arts:  Connecting Creativity, Economics and the Law,” focused on the relationship between intellectual property law and the creative arts.  The first panel of the morning was entitled “Intellectual Property and the Creative Arts.”  The panel featured Robert Rehm and Professor Mike Mireles, both of whom gave presentations before fielding questions from the audience.  Practitioner Zaneta Robinson joined the presenters on the panel during the question and answer session.

Mr. Rehm then discussed what he termed the “Creative Arts Stimulus Package.”  He used this phrase to refer to the symbiotic relationship that an attorney can develop with the creative arts community.  He proposed three ways that attorneys can develop such a relationship.  First, he suggested offering pro bono legal assistance.  This first method is great for young attorneys as they are able to gain and hone professional skills quicker than they typically could at a law firm.  It is also a good way to meet new potential clients.  Second, he suggested becoming involved in creative arts organizations in the community where the attorney is practicing.  Third, Mr. Rehm insisted that attorneys should take advantage of speaking opportunities at symposia and community organizations.  This presentation served to illuminate the various ways in which attorneys can become more involved in the creative arts community that surrounds them.

Professor Mireles presented immediately after Mr. Rehm.  Professor Mireles teaches property, wills and trusts, and intellectual property courses at the McGeorge School of Law at the University of the Pacific.  His presentation focused on trademark law and its ability to extend protection to works that have become public domain pieces.  He focused, in particular, on the aesthetic functionality doctrine.  The aesthetic functionality doctrine focuses on trademarks’ function of protecting and promoting robust competition in the market.  Specifically, in applying the doctrine, practitioners must look to whether protecting the trademark would put competitors at a non-reputational related disadvantage.  For example, if a manufacturer uses the color black for engine components for the purpose of making it look smaller or matching purposes, allowing only one manufacturer to do this would place other competitors at a non-reputational disadvantage.

This doctrine is often applied as a defense for the infringer.  Professor Mireles discussed a recent Ninth Circuit opinion that involved a plaintiff that was attempting to stop a competitor from selling Betty Boop merchandise.  In the Ninth Circuit’s first opinion deciding the case, it held that the alleged infringer’s use was protected by the aesthetic functionality doctrine and that the purposes of the trademark system would be frustrated if the trademark never entered the public domain.  This opinion was subsequently withdrawn for one that did not examine the doctrine of aesthetic functionality.  Commentators on this area of trademark law have been unable to reach a consensus for what the function of the trademark system is and even those that agree the purpose is that of aesthetic functionality do not agree on how the doctrine should be used.

After Professor Mireles concluded his presentation, the moderator began taking questions from the audience.  Mrs. Robinson joined the panel for the question and answer session.  Ms. Robinson is an attorney at Blanco Tackabery and Matamoros in Winston-Salem, North Carolina.  She focuses her practice on litigation and intellectual property law.  In explaining what people do to protect themselves in a culture so focused on social media, Ms. Robinson stated that the issue presents an employment law question in addition to intellectual property concerns.  She said that many employers are currently updating their employee handbooks to explain the proper use of company trademarks as well as what appropriate behavior is regarding use of company-sponsored websites.  Ms. Robinson explained that this area of the law is antiquated and that the issues presented by newer technology are still being deciphered in court.

Professor Mireles then tackled a question regarding the future of the fair use doctrine in light of social media.  He predicted that the fair use doctrine of copyright law will be reigned in over the next few years.  He said that there is a treaty that has been proposed that is essentially a version of the United States copyright laws but that does not include the fair use doctrine.  He explained that the lack of a fair use doctrine essentially sanctions government suppression of speech.  Mireles emphasized the importance of individuals and companies protecting their interests and ensuring that legislation and treaties that fail to protect the freedom of expression are not adopted.

The first panel exhibited a range of concepts and issues that connect creative arts to the intellectual property laws that protect those works and their artists.  The presentations were thought-provoking and well delivered.  This panel of speakers greatly contributed to the success of this year’s symposium and the journal is grateful for their invaluable contribution to the symposium.

 Chris Hewitt is a second-year law student at Wake Forest University School of Law and a member of the Journal of Business and Intellectual Property Law.  He holds a Bachelor of Business Administration in Trust and Wealth Management from Campbell University.  Upon graduation in 2013, Mr. Hewitt plans to practice business and estate planning law.

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