Patent Pro Bono Program
Services offered: A nationwide network of independently operated academic and nonprofit organizations that endeavor to match volunteer patent practitioners with financially under-resourced inventors seeking patent protection.
Letter Supporting CASE Act
IIPSJ sends a letter to Congressman Jefferies supporting passage of the CASE Act.
The Institute for Intellectual Property and Social Justice (IIPSJ) hereby submits the following comments in support of passage of the Copyright Alternative in Small-Claims Enforcement Act of 2019 (HR 2426). IIPSJ was established to address the social justice implications of intellectual property law and policy both domestically and globally. IIPSJ’s work ranges broadly, and includes the scholarly examination of intellectual property law from the social justice perspective; advocacy for social justice-cognizant interpretation, application, and revision of the intellectual property law; efforts to increase the diversity of the intellectual property legal bar; and programs to empower historically and currently disadvantaged and marginalized communities through the development, protection, use, and exploitation of intellectual property.
Click here to read full letter.
MMA
Update on the Passage of the Music Modernization Act
- Idia Egonmwan, a 2L student attorney in the Intellectual Property Clinic at Howard University School of Law.
As many of our membership will recall, earlier this year IIPSJ submitted to Congress both formal comments and also a letter on behalf of intellectual property law and other scholars to support passage of the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society (CLASSICS) Act and the Music Modernization Act (MMA), and otherwise undertook a public campaign in support of these legislative bills. We are pleased to report that these and other grassroots and other efforts were successful and both acts were passed by Congress on September 18, 2018 (combined into a revised Music Modernization Act) and signed into law by President Trump on October 11, 2018.
What is the Music Modernization Act (MMA)?
The MMA mitigates many of the economic and social inequities perpetuated in the music recording business by creating uniformity in legal protection for pre- and post-1972 sound recordings via the federal copyright system.[1] The MMA is broken into three parts:
- Title I establishes a musical licensing collective to issue and administer blanket mechanical licenses for the use of sound recordings to digital music services and to and collect and distribute royalty payments directly to rights owners, including performing artists;
- Title II compensates pre-1972 sound recording artists by creating a royalty structure; and
- Title III creates a legal right for various musical contributors (producers, mixers, and sound engineering) to collect royalties for digital transmissions of sound recordings.[2]
The IP Social Justice Impact of the MMA
African American and other marginalized creators and artists have historically suffered from legal and social limitations upon their freedom to contract, inequities exacerbated by the systemic manipulation and abuse of the copyright law and music sound recording contracts and licensing agreements. “Legacy” recording artists such as Otis Redding, Martha Reeves and the Vandellas, and the Temptations were especially disadvantaged in that copyright protection did not extend to pre-1972 sound recording.[3] As a result of the passage of the MMA, composing artists will benefit from more equitable royalty structures under the Copyright Section 115 compulsory mechanical (recording) license (which historically exploited the inferior bargaining power of all artists, but particularly artists of color) (Title I); limited music copyright protection in the form of a digital performance right has been extended to pre-1972 “Legacy” sound recording artists (Title II); and a right for previously uncompensated producers, mixers, and sound engineers to collect royalties for their creative contributions has been established. (Title III).
Fair Compensation and IP Social Justice for Music Creators and Performers
The Music Modernization Act (MMA) is a progressive step for copyright law and the American recording industry, ultimately providing legacy, current, and future musical artists with more equitable compensation for creating, sharing, and performing their work. Utilizing intellectual property as a means of social justice in the music industry is a small subset of how IP law can be used to empower and rebuild marginalized communities. Although not perfect, the MMA represents the outcomes that can be achieved when legal scholars, legislators, and intellectual property and other social justice activists collaborate to preserve the purpose of copyright and other intellectual property law: to promote and encourage socially equitable and beneficial creative labors.
[1] See the Letter from Lateef Mtima, Dir., Institute for Intellectual Property & Social Justice, to Chuck Grassley, Chairman, U.S. S. Comm. on the Judiciary, Dianne Feinstein, Ranking Member, U.S. S. Comm. on the Judiciary, Bob Goodlatte, Chairman, U.S. House of Rep. Comm. on the Judiciary, Jerrold Nadler, Ranking Member, U.S. House of Rep. Comm. on the Judiciary (Mar. 14, 2018)
[2] See Mark Wittow, A Modern Melody for the Music Industry: The Music Modernization Act Just Passed Congress and Awaits Presidential Approval, The Nat’l Law Review (Oct. 2, 2018), https://www.natlawreview.com/article/modern-melody-music-industry-music-modernization-act-just-passed-congress-and-awaits
[3] Id.
July 2018
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IP Mosaic
The IIPSJ MOSAIC IP Law and Policy Roundtable Conference
Purpose and Objectives
The IIPSJ Mosaic Roundtable Conference was established to bring together scholars, law and policy makers, and social activists of diverse and multicultural backgrounds and perspectives to explore progressive and non-traditional ideas in intellectual property law, policy, and social activism. Beginning in the late twentieth century, digital information technology and other innovations sparked a paradigm shift in scholarly assessment of the social ordering function of IP protection, exposing the need to critically examine the law’s social justice obligations in promoting human rights, self-determination, cultural progress, and nation-building and evolution. Because IP law and policy makers traditionally value scholarly analyses in their development and interpretation of IP protection, this emerging body of progressive, social justice-oriented IP scholarship, especially when infused with the experience and insights of social activists and policy makers, can provide them with the doctrinal basis for shaping a more socially responsible IP legal regime.
The Mosaic Roundtable Conference Format
Each Roundtable Conference is organized around a specific IP social justice legal issue, policy, or socio-economic problem, and is comprised of four paper or project presentation sessions; each session is divided into a principal presentation, a commentator’s assessment, and open discussion. Representative Roundtable topics include equitable access to health, medicines, knowledge, and information; socially beneficial application of information technology and related advances to IP development and dissemination; legal protection for traditional and indigenous knowledge and expression; and promoting IP awareness, education, and entrepreneurial and socio-political empowerment in marginalized communities. The Roundtable Conference is also amenable to expansion into a two day format, to accommodate plenary panels, keynote presentations, and “incubator project” and work in progress sessions.
IP protection is intended to play an important role in engendering human development, socio-economic empowerment, and social justice. The traditional tools and experience of scholarly analysis, reflection, and discourse, however, are not always readily adaptive toward targeted social action, or what is sometimes referred to as “public intellectualism”. Through the IIPSJ Mosaic Roundtable Conference, IP scholars can work together with political activists, practicing attorneys, community organizers, and policy makers to produce “activist scholarship”, to collaborate on various “IP Empowerment” policy initiatives and projects, and to otherwise help to shape and effectuate a progressive and contemporary IP socio-legal agenda.
2014:The First Annual IP Mosaic Conference: Diverse Voices in IP Scholarship
Luncheon Keynote: Reconstructing the IP Scholar Activist
New to IP
We realize that many entrepreneurs, creators, and inventors may not have a lot of time to research and understand Intellectual Property (IP) law. We created this section of the website to provide some initial information about IP and how to find out more about the IP issues that are relevant to you. We have begun to gather information and resources to answer some of the most common IP related questions. If you have a general IP question* not answered below, feel free to email it to us at updates@iipsj.org.We will continue to update this page as we find new resources and receive new questions.
*Note we cannot provide legal advice but we do include links to organizations that provide free or low cost legal advice.
Intro to Intellectual Property (IP)
The most common types of IP are patents, trademarks, and copyrights.
| Type of IP | Protects | A little more information | Federal Registration for Protection at |
| Patents | Inventions | - rights grant the inventor ownership rights in their invention
- grants the inventor an exclusive right to make, use, offer for sale, or sell the invention |
US Patent and Trademark Office (USPTO)
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| Trademarks | the way we identify who made or provides the products or services | rights may be used to prevent others from using a confusingly similar mark in commerce in connection with the same or similar products or services | USPTO |
| Copyrights | Original works of authorship | rights grant the author the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly | US Copyright Office |
Learn More:
USPTO
Article: What Are Patents, Trademarks, Service marks, and Copyrights?
Video: Basic Facts: Trademarks, Patents, and Copyrights
U.S. Small Business Administration video: Patents, Trademarks, and Copyrights
Check out our Legal Resources page to find free and low cost services to help you with your IP.
Check back for additional information.
Net Neutrality, CLE, Blurred Lines, and Recent Events
Highlights from IIPSJ's 15th Annual IP and Social Justice CLE Program at the Howard University School of Law Check out our website for highlights from this year's CLE program. We take a look back at 15 years of providing CLE programming on IP and Social Justice, as well as provide a summary of the event and some of the panels including student reporting on various panels available at the specified links
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For Graffiti Artists, Musicians, Small Business Owners, and more
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Blurred Lines Decision a Social Justice Win?
Blurred Lines’ ruling brings justice to composers like Marvin Gaye
In mid-March, a federal appellate court correctly affirmed the 2015 verdict against Robin Thicke and Pharrell Williams, finding their 2013 “Blurred Lines” hit infringed on Marvin Gaye’s seminal “Got To Give It Up.”
Unhappy with the result, Thicke and Williams have just requested a rehearing of the case. They are likely bolstered by critics who claim composers will be stifled and fearful because of the ruling. But the sky is not falling: The creation of new music can proceed as it always has before.
In fact, the ruling may clarify the scope of musical works, by endorsing audio recordings as evidence of the compositions of “aural” composers who do not use European-based sheet music. This advances social justice for songwriters from disadvantaged backgrounds who were exploited under earlier copyright registration rules and fosters the creation of original compositions going forward.
Our litigation system, contested facts are usually sent to the jury. A judge will decide copyright infringement as a matter of law only where there is a complete absence of credible evidence on one side. In the “Blurred Lines” case, expert musicologists for both sides presented reasonable evidence. Consequently, the trial court rightly submitted this factual dispute for the jury to decide, and the appellate court affirmed that decision.
All parties agree that neither musical style nor musical genre is protected by copyright. Style and genre are abstractions that identify the kinds of musical elements repeatedly used by a composer (style) or by composers in a particular musical field (genre). As abstractions or ideas, they are not copyrightable. Groove is not an abstraction, but rather the particular rhythm instrument parts of a composition taken together. As with any other specific and original composed parts, or particular original combination of parts, a groove can be protectable.
The Gayes’ experts identified particular expressions of both (1) individual elements, such as an original bass line and vocal melodies, and (2) a compilation of musical elements. They also opined that these elements had been copied by Williams and Thicke.
The Thicke parties retained their own experts who disagreed. Because of the importance of observing witnesses and experts firsthand in making decisions about credibility, appellate courts normally defer to jury verdicts absent fatal procedural errors. It is not a judge’s role to second-guess evidence properly presented by a party. The underlying rules of law and procedure have not been changed by the “Blurred Lines” decisions. Indeed, the decisions are examples of those rules being applied in a straightforward fashion.
But something else may have changed for the better. Gaye, like many iconic 20th-century pop composers, was not fluent in European-based sheet music notation. The copyright registration system of the time required “aural” composers (those composing by ear) such as Gaye to submit written notation. Music publishers had employees score a bare-bones interpretation of the composer’s actual song, which might not contain all of its parts, as a placeholder for the full composition.
Multitrack recording technologies allowed aural composers to “score” and arrange their songs on tape. Actual recordings are the best evidence of the full scope of the composition. The year after Gaye composed “Got to Give It Up” in the recording studio, the U.S. Copyright Office changed its rules and allowed the deposit of audio recordings of musical compositions for copyright purposes.
In an amicus brief to the appellate court, we argued that courts should allow such recordings as evidence of the full scope of aural composer’s works. The appellate court noted this and stated that trial courts could address the use of this evidence. Going forward, justice may finally be done for aural composers who have been systematically exploited by the system.
Copyright Claims for Graffiti Artists
Graffiti: Copyrightable Art, Illegal Activity, or Both?
Graffiti on buildings, in alleys, and on trains – sometimes signed, sometimes anonymous, and usually unwanted by the property owner. However, often these creations are both beautiful and edgy. A perfect match for marketing clothing whose image so desperately wants to align! Many brands attract customers based on advertising themselves as street-savvy and edgy. And, while many graffiti artists often do not seek attribution, for obvious legal reasons, that does not necessarily mean that their artwork is free to use by others.
In recent years, the issue of unauthorized use of graffiti in advertising has bubbled up frequently. In 2014, David Anasagasti, a well-known street artist in Miami, sued American Eagle for copyright infringement, alleging unauthorized use of his signature “droopy eyes” in their advertisements. American Eagle used the imagery on their website, as part of their social media presence, as well as in-store displays globally. The case ended in a private settlement.
In the same year, the Italian brand Roberto Cavalli was sued by a group of graffiti artists from California for allegedly using their artwork on the Just Cavalli line of clothing.
The most recent case sparking off a fresh round of discussion on the topic involves H&M, who received a cease and desist letter from Jason “Revok” Williams, over the use of a mural he created in Brooklyn in their ads. In response, H&M filed a lawsuit asking the court to declare that Williams had no copyright to assert because his art was a criminal act. Possibly due to pressure from street artists’ and supporters’ calls for a boycott, H&M withdrew the lawsuit in March 2018.
Does Copyright Protect Graffiti?
United States Copyright law, as stated in 17 U.S.C. §102(a) states that copyright protection subsists “in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Copyright protection is derived from the US Constitution, specifically Article 1, Section 8, Clause 8, which states “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Another recent case, 5pointz, turned on the Visual Artists Rights Act (VARA) protection granted to artists of authorized works. While street art, the murals at issue were there with the permission of the property owner. This case was a little different in that, the artists had permission to create their murals, with a verbal warning that it could be destroyed at any time. While that case found in favour of the artists, the decision may have had more to do with the “willful” destruction of the street art without sufficient warning to the artist.
VARA, enacted in 1990, recognized the moral rights of artists to their visual works of arts. Codified in 17 U.S.C. § 106A, VARA grants authors of visual work additional rights regarding attribution of the visual art. Specifically, the moral rights of artists of VARA-protected works must be disclaimed, in writing, which did not occur in the 5pointz case.
What does this mean going forward?
Many of the defendants in recent copyright infringement cases involving graffiti have been slow to respond to why they did not simply ask for permission. Some, like H&M, may have been hoping to rely on the defence that unauthorized graffiti is un-copyrightable because it is not legal. Others may have been unable to contact the original artist or assumed they would not take action to protect their intellectual property.
Additionally, property owners, such as those in the 5Pointz case, should not assume that they have the right to destroy or mutilate artwork without obtaining required permits, permission from the artists, or by obtaining a VARA waiver in advance.
Getting a federal court decision stating that graffiti is protected by copyright could have some interesting implications. It will certainly increase the likelihood that retail companies will do additional due diligence to clear the use of graffiti in advertising or, alternatively, not use unauthorized graffiti at all. Additionally, while H&M’s production agency did contact the New York City Parks and Recreation Department for permission, the inability to find an author may not be enough to protect against an infringement allegation in the future.
Likely, some types of commercial use will still be allowed – currently, for architectural and visual works the exceptions of Fair Use and Incidental Use apply to accusations of infringement. For example, the recent Gayle v. Home Box Office, 17-CV-5867 (SDNY May 1, 2018) dismissed an alleged copyright infringement case concerning a shot of graffiti on a dumpster that appeared in the HBO series Vinyl. Interestingly, the court in Gayle did not directly address the question whether graffiti was generally protected by copyright. Instead, the court ruled that the graffiti in question was “never fully visible, let alone legible” and was, therefore, de minimus.
However, commercial users – such as retailers, film studios, etc. – will need to be careful to ensure that, if graffiti features prominently in the commercial use, permission is obtained. Otherwise, a lawsuit could follow. And, while all of the lawsuits involving graffiti have settled to date, it may not be cheap to do so.
So, while existing graffiti may indeed provide a tempting edge for a new marketing campaign, or as the backdrop for a great commercial, companies will need to decide if it is worth the legal or public relations risk. If the original graffiti artist cannot be found or is unwilling to allow their art to be used, it may end up being less expensive to start from scratch than to manage the fallout from an allegation of stolen artwork, damaged reputation, and a lawyer for the lawsuit that follows.