This episode is audio from the IP Rights as a Signal to Consumers panel from the Engelberg Center's Conspicuous Consumers Symposium. It was recorded on October 16, 2025.
Announcer 0:00
Welcome to engelberg center live a collection of audio from events held by the engelberg center on innovation Law and Policy at NYU Law. This episode is audio from the IP rights as a signal to consumers panel from the engelberg Center's conspicuous consumers symposium. It was recorded on October 16, 2025,
Jeanne Fromer 0:26
thank you for being here. I will quickly introduce my panelists, and then I'll turn it over to them. So this panel is about IP rights as a signal to consumers. So what role do IP rights play themselves in affecting how consumers behave, or what role do they not play? And so we're going to walk through a bunch of different areas of IP law to try to get at that. And so we're gonna have Chris caterropia. It says he's University of Richmond School of Law, but no, he is no longer at University of Richmond School of Law. He's actually he recently moved to GW, and he's gonna be talking about patent. And then we'll have Jacob notI Victor from Cardozo, former engelberg center fellow and teaching copyright law here this semester, who will be talking about copyright. And then we'll turn to Mark McKenna of UCLA, who's going to be talking about trademark in this context. And then Rebecca Tushnet, former NYU Law professor and now at Harvard, and wonderfully attired head to toe in Diet Coke gear today, who will be talking about false advertising. And I could say I think Rebecca is not a false advertisement for Diet Coke, though, but we're gonna start off with Chris, and then work our way down.
Chris Cotropia 2:04
Well, great. Thank you so much Jeannie, and thanks to the engelberg center. And thank to thanks to an East for organizing all of us. So I'm gonna do the probably the more boring part of this, not that patents are always boring, but at least in this context. So, so the question, I think, at least framed up in the context of this panel, is to patent rights somehow signal something to consumers that's meaningful, and if so, what is that signal? And I want you to listen to me for the next 10 to 15 minutes, but the punch line is not much at all, which maybe it's surprising actually, and there's been some work done on this that includes some work that I've done by myself. So I think dividing some kind of four parts a little bit of a primer on patent theory to just kind of set the stage talk about what patent law says explicitly about marking products as patented. And there's actually even kind of coded into patent law thought as to what consumers might think about things. Then I want to turn to a couple of recent studies that have actually tried to look at what consumers perceive if something's marked as patented or not, and then finally, end up and talk about implications a little bit so, so just some basics about patent theory to kind of set the stage, and I think also to kind of show that patent law is more about communication, about between kind of competitors or those that are producing and maybe a little bit less about communication with consumers. So patent theory, I usually think of it kind of working on two ends. There's this idea that we're trying to create an incentive for the invention to actually be created, right? How do we do that? We grant exclusivity, which gives the inventor the ability to control price, so she can now price her product when it goes on the market, to kind of recoup her costs and the risks that she had when she was developing it. I think there's this other aspect of kind of basic patent theory that we also not only want the thing to be invented, but we want to a partner I used to work with, would always say, we want it to get to your local 711, right? We want it to be commercialized. We want it in some way so that us as consumers can do something with the product. And so I think patent law is mainly focused on trying to get the thing created and produced. And that thing is something that we believe is new. It's not obvious, and it's useful in some way, and at least in that context. If I view what the consumer and I'm thinking about the consumer here, is the true walking into your local 711 kind of buying something off the shelf. Consumer is not really, maybe the end product of all of this, we'd like that they could get a product that they like, but the idea that it's patented is more a role for the inventors and the commercializers to worry about, and less for the consumers. That being said, though, when we actually take a look at the patent statutes, there actually are some. Statutes that deal directly with the idea of how the concept of a product or a process being patented is supposed to be communicated to the consumer, and what are the benefits of that communication. So I know that some of the other panelists are going to talk about how maybe the way in which the IP right is communicated to the consumer might actually have a feedback effect, or a way in which it might shape the actual IP right itself. It actually turns out in patent law, we do have a statute that creates that direct feedback effect. We have a statute that's a notice statute for damages, and that is that you can't start getting your patent damages by a would be infringer, unless that infringer has notice, and there can be the actual notice. I've sent my letter to them, and I've told them I've got this patent, you need to stop and so we can kind of start the damages clock ticking, but we also have the ability to have constructive notice, and that constructive notice is done through marking the product that's produced that embodies the patent that we're talking about, right? So there is a kind of kind of coded in feedback effect that where, at least for patent law, we want you to mark if you want damages. And I think there, the audience is not the consumer, but competitors, right? The theory here being is that competitors and this all seems so laughable, because people don't really even look at patents to begin with. So the idea that competitors are out there at the 711 turning every product over, looking as patent. Is it patent? The theory would be, is they would turn over, look at the product, say it's patented. Said, well, I need to stay away, or I need to look at the patent and see if I can design around it. And so there, I think there is a benefit of getting, not necessarily more rights, but more damages if you mark in some way. There is another patent statute that's been around in some form back to the 1842 act, and that is a false marking statute. And this one, I think, has consumers in mind. And the original incarnation of the false marking statute was that you could not put that something was patented or patent pending if that wasn't true. And so if it turned out that I'd marked my product as patented and it actually didn't embody the patented invention, right, or I marked it as patent pending, and actually a patent wasn't pending, I can be subject to a fine. And at least in its initial incarnation, we empowered these Q tam actions so individuals could actually go after companies who had falsely marked their products as patented or patent pending. And the theory behind this statute, I think, was a consumer oriented theory that there was harm to the consumer. And I think this kind of ties into kind of, in some ways, a false advertising harm, right, that when you sold a consumer it was patented, it better be patented, that this was something consumers cared about, that you might be misleading consumers in some way, if that information was false. Well, it turned out that a lot of people would mark their products as patented or patent pending. They've already got the mold set for their plastic good, the patent would expire. It would keep being marked as patented or patent pending. That's actually not true anymore. The patent has expired. And so some entrepreneurial lawyers said, You know what, let's just start suing these companies, and they would get $500 a pop for every one of the missed markings that were there. And so the statute was changed with the American events act in 2011
Chris Cotropia 8:26
to really, I think, tie it down to the concept of concern of competitive harm. And so then, in its kind of, kind of later incarnation of the one that we have now, under 292 you've actually got to prove that you are a competitor and that you are harmed by this mismarking that's there, and I think this is maybe what has spurred the, at least some of the research that's done in this field that I'm gonna talk about here in just a second. So at the very least here, we've got an extra overt statute that assumes that consumers are gaining some kind of information from this patented marking and that they might either favor the product more over somebody else, pay more for the product, etc. And so kind of the third part of my kind of little spill here, I want to talk about some some research that's been done, not only by myself, but others in the field, to kind of test out whether this is truly the case, right, whether consumers seem to react differently if a product is labeled as patented or patent pending, versus the similar product, but in a different way. I'm going to start with what I think is one of the best studies in this area. And it's not my study. It's a study by Neil sakuda May and Alexander billing, and they did something particularly a field experiment that I would never even try to do. They convinced three drug stores in Washington, DC to let them mark the products on their shelves as patented or not mark them as patented and vary the marking for the same products between the different drug stores. Right? So the now they're not gonna they're not gonna force them to false mark. These are products that are actually patented. But the idea being is in these three drug stores in Northwest DC, if I went into two of them and I was looking at a cough syrup that has a patent that covers it, I would look at the little tag that has the price on it, and they would have added to the tag. You know, the ones that kind of hang over the shelves in big bold letters, patented. And if I went into the third one, there would be a little tag there, because we worry about the kind of salience of variation, but it would just say product. And so they looked at the actual kind of scanner roles of sales between these three locations, and they've got some kind of good information to make sure that we've got kind of parallel trends, etc, and they almost find a perfect null effect. There is no variation in kind of really trying to scream to the consumer, it's patented, versus the ones that were just merely a product, they were all patented, but they didn't see any variation of this. They then kind of took it to the quote Lab, which it turns out the cheap lab that I've used a lot is this thing called Mechanical Turk, where we find these individuals online and pay them some money to take surveys. And they essentially presented them what was presented in these drug stores, but presented it to them in this kind of laboratory setting. And they did a couple of vignettes, I think they did five or six different products, and they actually found the exact same effect that when presented with this, there was no variation as to whether they were more willing to buy the one that was labeled as patented versus the one that wasn't. They do find, though, that the ones that are labeled as patented, these kind of those in the lab would say they would believe that product was more innovative, maybe more well made, but it didn't seem to translate into more willingness to buy. So their result, kind of thought of this is that, you know what, I don't know if we need to really worry about false marking, it doesn't look like the consumers think this of us in any way and way. And so that's the study by suketa May and Billy. There's a another study that came out by BAM Bauer. And you know what, I don't want to not pit people's names, and so I've got the paper right here, but I know my glasses on milsarski Desai and bam Bauer, who basically replicated that same kind of laboratory study. But instead of doing products on shelves, they would present ads, and they have six different ad vignettes. Some of the ads would say that the product was patented. So the ads would say that there was a patent pending. So the ads would say Consumer Reports supports. And so the ads wouldn't say anything. And they really don't see any variation, actually, at all under any of these vignettes, although they do see a little bit of variation, which they don't find kind of as interesting as I do because of some of the research that that it turns out that some of the products that are labeled as patent pending, they do see a little bit of a positive uptick in willingness to buy, which is kind of fascinating, right? The patented doesn't seem to have any salience with you, but patent pending does, and almost there, but not all the way there, right? And so in the end, they kind of agree with sakuda May and Billy that maybe we shouldn't worry about the false marking, that maybe this doesn't have much salience with consumers. So come to the last study. I didn't necessarily save the best for last, but this is the study that I did in the haze of Well, this was actually right before covid. Was kind of haze of covid. And what I took a look at were crowdfunding campaigns. And so my initial thought when looking at this, so there's this thing called Kickstarter, I think people still do this a little bit. It was really in vogue in the late 2000 10s. And my initial thought was, I wanted to look to see whether Kickstarter campaigns, where the campaign touted that if it was patented or patent pending, were more successful. And my initial thought here was it would get us some insights, not into what this panel is about, but more so get us insights into investors, right? So the idea is that Kickstarter is, although it turns out, it really turned out not to be an investing it was just a pre buy kind of kind of forum. But at least initially, this idea of investing and I ended up seeing the same effects as the other ones, the fact that campaigns labeled themselves as patented did not correlate with success at all, although, if your campaign said patent pending, there was a higher success rate. I then took this to the quote lab Mechanical Turk, and I found the exact same effect, actually even stronger. You're kind of almost two times more likely to invest in a Kickstarter campaign if it said patent pending, as opposed to if it said patented or if it didn't say anything at all. So now, what do we make of all of this? I don't know. The first thing I think we make of it is, I don't know if consumers really care at all whether it's patented or not, and I'm and actually, secunday and Billy kind of give this as their conclusion. I think the consumers, shockingly, are just looking at the products and saying, Hey, is this a product I want to buy or not? And if it's innovative. Innovative, they're like seeing its innovation and like its attributes, etc, they're willing to buy. But if it's not innovative, they're not willing to buy, and they don't need the word patented to tell them that, right? I do think there's an interesting kind of quandary as to why patent pending seems to have some salience, right? And I'm happy to kind of discuss this in the in the Q and A. I don't really have any good theories about this, that maybe the consumer wants to kind of help the upstart. Maybe the consumer thinks it's even more cutting edge because they haven't even gotten a patent yet. And maybe that creates some kind of kind of positivity there. But the long and short of it patented doesn't really provide much information, at least that consumers seem to be willing to act on with regards to purchasing products.
Jacob Noti-Victor 15:48
Great. I kind of want to talk more about this because it's so fascinating, like the home shopping. It might be like a home shopping network effect as
Chris Cotropia 15:59
it's blinking. That's
Jacob Noti-Victor 16:00
not what I'm going to talk about. It's great to be here, and I'm going to talk about the copyright side of things. And you know, if you think patents are weak signals to consumers, copyrights are, you know, really not doing much better. You know, there may be a theory that the little c next to work does confer some legitimacy on on the work. I haven't seen any empirical studies that try to document this one way or another. Some have speculated, actually, though, that like the video game industry, achieve some legitimacy by bringing it into in the eyes of consumers, by bringing video games into copyright, again, kind of speculation, but what we do know empirically is that consumers really, actually don't know what copyright means when they see the copyright work, the little copyright sign. So Greg Mandel and a lot of others have talked about how consumers just sort of think of copyright, really, as a kind of personal property, right? That stems more to, you know, personhood, labor, theories that are really not that that salient in the US tradition. So if anything, copyright, the little copyright signal symbol is probably a noisy or misleading signal to consumers. So instead of talking about, you know, copyright, the copyright label as such, I want to talk about how copyrights internal line drawing, internal doctrinal line drawing, I think, creates and shapes information that consumers care about. The sort of feedback effect we might see between between consumers and copyright, sort of copyright doctrinal decisions. And the main area I'm going to look at or talk about is copyright's Human authorship requirement, and in particular, how it's been applied and altered in the AI context in recent years. And, you know, quite you know, kind of, it's kind of a moving target. And I think that the copyright authorship question, the copyright authorship boundary, at least as the Copyright Office has defined, it hasn't just, you know, allocated rights in copyrights. It's also enabled or even manufactured consumer facing signals when it comes to things consumer consumers already care about, including authenticity and ethics and the like. So I'm going to run through my argument here, which is a bit of a variation of an argument that I made in a recent law review article. So first, a little bit about what authorship means when it comes to AI generated works. So it's pretty clear now, and the DC circuits even weighed in on this, that there's no authorship for computer generated works as such. This is stemmed from a long tradition of not recognizing non human agents as creators. You know, monkey selfies. No copyright there either. And this has been, this is a fairly, I think, kind of not controversial holding where things get a little bit trickier, though, is about the interface between a human and an AI system. So the copyright office, at least, has held that has found that human prompting is not sufficient to confer copyright on a work. It's not sufficient to provide the requisite human authorship that's necessary for copyright to attach to a work. And this is true even of detailed prompt engineering, a more iterative, iterative prompting, none of that makes the final output protectable. And the Copyright Office has based this on a read of both the law and kind of the mechanics of this technology that says that there's just too much to attenuated, a connection between the prompt and the final output that the prompter is not, is not able to sort of conceptualize or predict what the output is going to be, and therefore that is not, therefore we, we don't have the requisite sort of you. Can think of it in causal terms. You can think of it in causal terms. Might be the best way to think of it. We don't have the requisite connection between sort of the idea and the expression, such that we don't have authorship. And they've analogized to prior cases here, including the Chapman Kelly living garden case, which said, you know, if a garden, if the expressive value of a Garden is provided by nature as an agent rather than the gardener. No copyright can attach to a garden as well. So in short, no prompting. Prompting is not authorship, because the user isn't defining the specific expressive choices, including composition, phrasing, brush strokes, the things we might think of rather it's the AI that's doing that, that said there can be some protection for AI works, but it's going to be limited to selection, coordination, arrangement of the AI generated material, some human choices to move things around or add variations and the like. So we might think of this as almost like a compilation style protection around the curatorial decisions that a human is making with respect to AI content, but not the AI content itself. And this is a pretty thin copyright. It doesn't extend to a lot of the underlying expressive materials. It's really only going to extend to the coordination of those materials. So what does this have to do with consumers? You know, I think, and I've argued that the copyright offices choices here are actually coextensive with a lot of consumer preferences in this area, and specifically what some of some call process preferences, which are basically preferences that are tied to the
Speaker 1 21:41
good, not so much because of the good itself, but because of information about the process that produced the good. So examples of this abound. You know, fair trade coffee might taste the same as non fair trade coffee, but the consumer's choice is being driven by the process in which it was created, handmade goods, you know, things like that, the process is really part of the perceived value. And when it comes to AI, there has been a decent amount of empirical work that shows that consumers are more likely to buy something if they believe it's not AI generated than if they are. There have been interesting studies that have taken the same work and put a little AI label, non AI label, and I've actually mapped consumer choices here and in my own work. I, you know, I've argued that these reactions aren't just really a techno squeamishness, but they actually track some ethical priorities as well as the more nebulous desire for authenticity that informs a lot of consumer decision making in in especially in esthetic contexts. So the ethical preferences here, you know, are fairly straightforward, but they're basically consumer unease over, perhaps labor displacement of human creators by AI, and a desire to to to, you know, purchase goods that are keeping people in keeping humans in employment, rather than getting them out of work. And but I think more importantly here is the sort of authenticity side, and something about the, you know, the human touch is necessary for a consumer to, or for some consumers, at least, to want to purchase a creative work. And there's a dark, there's a dark read of this, that it's that, you know, we're that a human made creation is, like artisanal beer, or, you know, artisanal everything, that this is just a kind of new status symbol, and it's playing the role of, like, of kind of just a way of differentiating, you know, cheap goods from expensive goods. But, you know, I think there's also a more a more positive read of consumer preferences here, which is that authenticity can be synonymous with a kind of social role of art, an idea that when you are actually consuming a creative work, you're engaging in some kind of dialog with the Creator. And this, this type of dialog can be relevant to moral identity and self definition, and rather than kind of go into all of the you know the theory here, I'm just going to give you a quote from Ted Chang, who's a sci fi writer who's written a lot about AI, and apparently is now doing the law school circuit. So he writes, whether you are creating a novel or a painting or a film, you're engaged in an act of communication between you or your audience, what you create doesn't have to be utterly unlike every prior piece of art in human history to be valuable. The fact that you're the one who is saying it, the fact that it derives from your unique life experience and arrives at a particular moment in the life of whoever is seeing your work, that is what makes it new. So interestingly, you know, we have this authenticity read on what consumers value about AI generated works. And I think the copyright office's specific line drawing here is actually kind of normatively coextensive with what consumer. Or at least people like Ted Chiang might think of as what what it means for something to be truly human made the idea that it's the tiny iterative choices that matter in making a work. Have that kind of human, human touch, that in order to communicate something personal or real through a work, you need to be involved in every stage of the work's creation. And I'll give you another Ted Chiang quote. This is the last one, I promise. But he writes that art requires making choice at every scale. The countless small scale choices made during implementation are just as important to the final product as the few large scale choices made during the conception. Some might disagree, but I think this does capture a certain way in which we as consumers or might conceptualize, might conceptualize artistic creation, and it actually maps on quite well to how the Copyright Office has distinguished between why something like prompting is not is not capable of conferring authorship, but selection and coordination or an arrangement is okay. So what does this have to do with consumer preferences and consumer signals? So because there is this sort of interface between the copyrightability question and consumer preferences here, the copyrightability itself is yielding provenance signals that I think are valuable to consumers. So the fact that a work is registered actually creates direct a direct line of information. A consumer can look up whether the work is registered in the registration it will say, disclaimer, AI used to create X, Y and Z, or it won't. And this is actually a fairly credible source of provenance information, assuming copyright owners are telling the truth, which they may not be, which I've written about, and there might be, they're probably good ways to there are ways we might need to penalize, better penalize, you know, lack of transparency or lack of candor to the copyright office. But assuming this works, we have, like a we have actually a source of information here. And more subtly, you know, copyrights also impacting the works that are reaching consumers. So clear copyright lines, you know, might support clear marketplace categories through private ordering. You know, it could allow for the proliferation of, sort of an authentic human label, if there's consumer demand for that. And you know, in the most general sense, it might actually disincentivize the use of AI in works, especially kind of lucrative, potentially lucrative works, if you're a Hollywood film studio and you're worried about and you want to monetize your work to the fullest extent, you don't really want any holes in the copyright. You don't want any holes in your copyright. You don't want to maybe use an AI screenplay at the risk that it is going to undermine your ability to fully monetize your work. So we may actually see just fewer works reach consumers through sort of the normal commercial channels, as long as this, as long as this rule stays in place, also, I think copyright is actually doing, or at least the copyright office is doing some of the hard line drawing on behalf of consumers, and as I said, in a way that that corresponds loosely, at least to some of the existing preferences in this area. So rather than the consumer having to decide exactly what the line is between the use of AI as a tool and the use of AI as a creator, the copy copyright is itself arriving online, drawing on on categories here that I think are that that are themselves sort of funneling works into the copyright or non copyright categories, and therefore to the consumer facing categories or non consumer facing and of course, you know, we might view what's happening here as not so much about copyright mirroring or mirroring consumer preferences, or helping consumers effectuate their preferences, but actually entrenching those preferences, and this is a little bit of chicken or the egg problem. And I think the answer is probably a copyrights doing both that, you know, we might be it might be validating existing preferences right now, but it's also probably going to make it harder for preferences to shift, you know, in favor of AI creation, and whether or not this is good or bad kind of depends on your view of cultural production and what we should be valuing as a society. And you know, you can probably tell I have thoughts on this, but I'm gonna, I'm gonna cabin that question for now. And you know, naturally that observation sits within a long tradition of scholars who've explored how copyright through its decision making constructs cultural value through things like originality and authorship and even fixation. And this is, you know, and this is, on some level, the latest high velocity example of this. But what I think is interesting about this example is, you know, we can see this direct interface between. Between the doctrinal line drawing and consumer expectations, consumer, consumer the lines of information that consumers desire in real time. And, you know, perhaps we might want to count that, or count what consumers value in this area in itself, in the question of what the line drawing should be. You know, we don't generally think of consumer expectations or preferences as part of normatively, part of what should or shouldn't make something copyrightable or not. But perhaps, you know, we might want to factor that in here, even if it doesn't fit so neatly into the normal ways in which we conceptualize copyrights policy agenda. So let me stop there and look forward to talking more during Q and A.
Mark McKenna 30:49
Okay, great. So Ted Chiang was at UCLA a couple weeks ago, gave a talk to us very much on that. If you haven't read any of Ted's stuff, he's incredibly thoughtful guy about emerging technologies, and his the talk was basically about the incompatibilities of generative AI and art. And the thesis of it was basically that things that are not made with human intention are not art by definition, because they they are not communicating right in the way you're talking about so Okay, so the topic of the panel focuses on the way that IP rights might serve as a signal to consumers. And so I think maybe the most obvious way you might think about that is in terms of how an IP right might itself be like a marketing tool for a claimant of that right, so that when the claimant advertises that it has some kind of an IP right, the very existence of the right serves as some kind of a signal to consumers that the product is meritorious, or that It's unique as compared to other products in the market. So IP rights might serve that marketing function, even if consumers don't have a very clear sense of the content of the IP right, just because of the signal sent by the existence of the right, right that somebody else has kind of signed off on it as maybe enough. But of course, they also might, in some cases, these IP rights might serve a special form of that function when the claimants advertise something particular about the right that makes it special right. So those rights might exist in relation to lots of different kinds of IP rights. I was interested you know, the empirical evidence that Chris cites to say that it doesn't seem to have much of an effect in the patent context is interesting, because it seems to me that when you watch television, you see lots of ads where people are wanting to tell the world about their patented product. Listening to you tell made me think of like so if any of you are old enough, if you do tours of colleges with your with your children, you'll notice that certain colleges go out of their way to tell you the percentage of their faculty that has terminal degrees, and others don't feel like they need to do that, right? And so it may be the case that what's going on is that the people who are telling you they have a patented product feel like they need to tell you that, whereas other people kind of are like, you know that our products are good, right? And that seems like a little self consciousness, right? So that might explain why consumers don't really react to it. So another kind of IP, right, that I don't think anyone's going to talk about up here, but I think especially Maggie's talk made me think about that that might be, might be frequently used in this way, is geographical indications, where the claim of having the status of being a GI is often used as a marketing tool. You might even say it only actually works at all as a GI if it serves that marketing function. And then, of course, the name of the geographical place becomes a site for storytelling, right about what's special about the place and about the people who are involved in the making of those products? Okay? So what I'm going to focus on here is a slightly different way of thinking about this question, a different point about the way that claims of IP rights influence the existence or the scope of those rights in the first place, right meaning the way that they feed back, as Chris said, into the sense of what's legally recognized. So I think there might be other contexts in which this could happen. The most obvious place to me, to talk about this is in the context of trademark rights, because they're especially susceptible, I think, of this phenomenon, because those rights depend so much on consumer consumer understanding generally, right? So that's the kind of circularity that all of us who teach trademark law talk about, right. Trademark rights exist because of the way consumers understand some word or design or feature, but consumers' understanding of the significance of those features can often be shaped by their beliefs about what law requires, about what others are allowed to do with those things. So that circularity is built into the doctrinal structure of trademark law in at least two kind of important ways. One is to the extent that the existence of rights depend on consumer understanding, either because it determines whether the sign has been used, quote, unquote, as a mark right, or because whatever the sign that's claimed is needs some evidence of acquired distinctiveness or secondary meaning in order for it to get over the trans. And some into becoming a trademark, right? So that way of thinking is also baked into the structure, to the extent that the scope of rights depends on consumer confusion and depends on consumers understanding of what others are allowed to do with your trademark. So in terms of the existence of rights, if we focus just on like, how we think about whether a sign or feature has acquired secondary meaning. The rules there, notably, give a lot of weight to the actions taken by the putative owner to claim the existence of those rights. Right, which, of course, gives lots of incentives to make those claims and to make them publicly and to assert them in particular kinds of ways. So it's not just that you get credit for the amount of the advertising you do, but the nature of that advertising, the way you use the claimed mark, matters a lot, right? The way you present that mark to others, the way you encourage consumers to treat those things as trademarks, matters even more. As Jeannie and I have written a lot about design claiming it matters even more when the claimed mark is complex, it has many different features, or it's built into maybe a broader package, or design where courts often will condition Trademark Status on what they think of as look for advertising right attempts to draw your Attention specifically to the particular features as so to call it out from the background noise, right. Okay, so beyond that question about the existence of trademark rights, there's a couple other things to say here that claims of rights in relation to certain kinds of uses of trademarks can also have this kind of feedback effect by shaping consumer understandings in ways that turn out to affect the legal scope. So this is true like at the retail level, by which I mean in terms of how the claims of rights can affect consumer understanding of the legitimacy of particular uses of a particular mark. So the obvious example here is the NFL is assertion of extremely broad rights in the Super Bowl trademark, right? So I don't I'm sure you've all seen this, but at Super Bowl time, the NFL basically starts sending cease and desist letters out to anybody who thinks of the words Super Bowl, right? But especially they will send it to anybody who any bar or restaurant or even churches or community organizations who are advertising that they will be showing the Super Bowl in their location, even when the showing of the Super Bowl is not only generally legal in most of these places, and the establishments are absolutely benefiting the NFL by driving interest and in revenue for the thing. But the NFL insists that if you show the Super Bowl in your establishment, you can't tell people it's the Super Bowl, even if there's no suggestion at all beyond the fact that you're using the word Super Bowl, that the event is somehow sponsored by or done in connection with the NFL. It's just the presence of those two words that is basically enough. So in many of those cases, the uses that the NFL objects to seem to me like paradigmatic examples of nominative fair use, right, meaning you're just identifying that you're showing this thing on the TVs because you are right, meaning that those uses should not be within the scope, the legal scope of the nfl's rights in the Super Bowl mark. And yet, I think the NFL has been unbelievably successful with these threats to the point where now if you watch a television ad, or you see any of these advertisements, almost everybody refers to it as the big game, instead of Super Bowl. And that shift is both the cause and effect in shit, in consumer understanding. And it's now so complete that my own students, while I'm teaching this even will say, but you can't use Super Bowl, which is like, apparently I've failed completely as a teacher. So I should say now that I'm also waiting for the day when the NFL also now claims rights in big game, because they will say, legitimately, that everyone knows that's actually a reference to the Super Bowl, and therefore they own that too, right? So don't think about the big game.
Mark McKenna 39:04
So this kind of shaping of consumer understanding of the scope of trademark rights can also work at the wholesale level, by which I mean, where Mark owners are able to shift the way that consumers think about entire categories of uses. So here, I think the most obvious example is merchandising right? 40 or 50 years ago, no one thought that universities had the exclusive right to use images related to the schools on T shirts. So at the time of that university bookstore, case that many of you learn about in the trademark class, which is about the registration of the Bucky Badger logo from the University of Wisconsin, Madison, Wisconsin, like every other college, town, was full of unrelated shops that sold Bucky Badger merchandise, many of which predated the sale by the university. Right? So like in every trademark sense, we're either not using it as a trademark or had priority over the universities, but over the years, around and following that case, universities set out collectively to manage. Manufacture exclusive rights in those things by way of a coordinated legal strategy and a public relations blitz that simply asserted the exclusive rights and branded the unrelated sellers as counterfeiters. Right They also use, by the way, their leverage over the apparel producers like champion and others, threatening to prevent those people from being able to sell in university on campus bookstores, if they did any business with the unlicensed sellers, the result of which was to give the universities basically control over all the major producers of apparel. So I think what's the net effect of this is, I think the dismay of most academics, at least the strategy seems to have worked very many people now believe that the law requires permission to use any university imagery, even though no one really thinks the universities are responsible for the quality of products bearing those images. The PTO has even made up a doctrine called the secondary source rule to enable the claiming of rights. Under that rule, if you have trademark rights for some goods or services that are unrelated, like educational services in the context of universities, then the PTO will pretend that use of that mark on the front of a T shirt functions as a trademark for the T shirts without need to show that consumers think the university is the source of that shirt, they'll just kind of port it over from The fact that it works as a trademark in some other setting. So by asserting trademark ownership, universities and professional sports teams have essentially created copyright right like rights in anything related to them, which they then justify now by reference to what consumers now understand, which is the ownership of these rights. So you could see a similar sort of thing with respect to claims of ownership in things like mid century modern furniture designs. I'm just trying to provoke Chris sprigman Now, where the claims that consumers recognize the design or associate that design with a famous designer get laundered into evidence that consumers treat those designs as indications of the source of the physical goods, right? And that's often accomplished by way of stories about authenticity of the design or of the designers, which has the same kind of dynamic effect of persuading audiences that there is only one legitimate source of those products, right? So there is some sense in which the things that I'm just described are kind of inherent in any legal system that takes into account consumer understanding. But the point is that that understanding can be shaped, and that when the claimant is well situated to shape that understanding and has strong incentive to do it, we have more reason to need to think about what kinds of normative principles we would want to limit the ability to do that, or the effect is we have sort of handed over the game to the claimants of the rights. So I'll stop there.
Rebecca Tushnet 42:50
Great. All right, so I decided to frame my part of this panel as can claims about IP rights a little bit closer. All right, any better? Yes, okay, so can claims about IP rights mislead consumers in a way that triggers general advertising law? So I'm going to start with two requirements of false advertising law that don't generally apply to IP rights. First, Federal False advertising law targets only false or misleading statements in commercial, advertising or promotion. This is probably not a big barrier for the kinds of claims at issue here, but it's worth keeping in mind. For example, use instructions, as discussed in the previous panel, might not be advertising, although it could depend on the product, so I don't want to make a strong claim there. But second, and far more importantly, general advertising law has a rule about materiality to be actionable. A false or misleading statement has to be the kind of statement that is likely to affect consumers' decisions, as opposed to trademark law, which doesn't require materiality for infringement. And as we already heard, materiality is often a problem in litigating alleged IP related falsehoods, including false patent marking. Most of the time, consumers don't really care about patent rights, although I do want to flag that things could be different when, for example, the consumers are highly sophisticated, and you know you're giving them, they're business consumers who might actually want the certainty of knowing that they're protected by somebody else's patent right. And as a result of this, courts have actually had to navigate this question of what is the overlap? So what happens when someone sends a threatening letter saying, Stop doing business with this person because and do business with us instead, because we have a patent. If that turns out to be false, that actually seems like advertising, and it seems potentially false advertising, at least in that unique or unusual situation. Information with with business consumers, and in order to prevent conflict with patent law that courts have developed a rules and let in the Lanham Act, usually, false advertising under the Lanham Act is strict liability, so it doesn't matter whether you you believed in good faith or negligently. You know, just being wrong is enough if it's false and material. And courts have developed a rule saying, well, when it comes to false claims about patents, it has to be intentional to avoid too much of a conflict with patent law. The other thing I want to mention here is a Supreme Court case called Daystar versus 20th Century Fox, which limited the scope of the federal Lanham Act in a way that turns out to be quite relevant to IP related signals. So the Lanham Act, in its false advertising related provisions, bars any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion as to the origin of goods. And the Court interpreted the word origin here to mean only references to physical origin, rather than the source of ideas or expressions embodied in a product, because they didn't want courts to basically become arbiters of Whose idea was this in the first place. Lower courts have subsequently held that Daystar limits the scope of Federal False advertising law because representations about IP rights are not representations about physical origin. So falsely stating or implying that your music is properly licensed or that your product is own is you know, not infringing does not constitute a false representation covered by the Act. And courts also interpret many state consumer protection laws to be coextensive with the Lanham Act. When the lawsuit is brought by a business, it's possible to argue that state laws are broader, but most courts don't want to do it. No court really wants to do two different false advertising analyzes. So there's also, though, a limit case. So this is sort of the hypothesis of the false marketing statute. Suppose the representations are not just about IP rights, but they also state or imply facts about the physical product. And recently, the Federal Circuit actually said, Yes, that is a valid claim. So crocs had sued its competitors for patent infringement. The defendant dogs counterclaimed for false advertising about the characteristics of the primary material crocs uses to make its footwear, a material it promoted as the patented, proprietary and exclusive cross light. And turns out, it is none of those things. Everybody uses the same material to make their crock analogs. And the Federal Circuit agreed with previous cases that authorship, like licensing status, is not a nature, characteristic or quality of a physical product, because it's not about the physical product. But the false claim that a product is patented in this case, did not stand alone. Instead, they at least dogs should get the opportunity to convince a jury that crocs was trying to use the patented claim to say that there was something special about its product to improve its performance. So the question in this view, will generally be about whether the statement about IP rights conveys a factual claim about the more tangible characteristics of the good or service at issue. And then I want to introduce as an additional framing point. And then I'll stop and we can talk that law, including product liability law often doesn't require trademark licensors to take responsibility for their products, even when consumers might expect that, and even when the trademark probably drove the sales, and I think false advertising should, should go much further than it has, in being willing to treat the trademark licensing as potentially actionable. So there's a recent case from 2020 against TGI Fridays. So the plaintiff bought a bag of snack chips labeled TGI Friday's potato skin snacks, mistakenly believing the chips to contain real potato skins because they were called TGI Friday's potato skin snacks. And TGI Fridays sells a potato skins appetizer that includes the flesh and peel of the potato, and apparently, the flesh and the peel of the potato give a different esthetic and nutritional experience than just the dried potato flakes which the product was actually made of, even though the TGIF branding is probably what led consumers to have a lot of their expectations about the product and even. Though the court found that the product was plausibly deceptive, the trademark owner was off the hook. Only the licensee was potentially liable, because TGF could be liable only if it engaged in making the misleading labeling. And even though it was licensed, there was no indication that TGF was involved in any aspects of the labeling beyond its own trademark, which that is TGIF. And so the court refused to treat TGIF loaded potato skins as an entity, even though it was clearly that's what they were going for. So that's a good example of IP rights, the right to license the mark to others as a false signal, and I'll just end with a potentially contrasting case involving Walmart and Black and Decker. So the plaintiffs there. This is a case from New Mexico. They alleged that the defendants violated the New Mexico unfair practices act because they bought a Black and Decker branded coffee maker, and based on black and Decker's reputation, they thought it'd be better than the lower priced store brand, and they paid more for it as a result. However, Black and Decker did not, in fact, design, manufacture, distribute or warrant the coffee maker. Somebody just paid. They just took money from the actual manufacturer, and the District Court did, had a bench trial and found that this was unfair or deceptive, that the presence of the trademark plus the absence of additional disclosure on the product or the advertising could deceive reasonable consumers about black and Decker's role in making the coffee maker, which was material to consumers, right? The name was Black and Decker 12 cup programmable coffee maker. It emphasized the Black and Decker name that tended to deceive a reasonable consumer, which is exactly what you would set out to do when you license the name. So the quest the Court said it wasn't challenging all licensee uses. It's just saying that the existence of licensing was not was not irrelevant, just in this case, the knowing and willful use of ambiguity as to material fact tended to deceive a reasonable consumer. This is very much the outlier result, but I tend to believe we'd be better off if we held trademark owners more clearly to their bargaining if they license to make a product more attractive, we should recognize that the trademark is helping to sell the licensed product and hold them jointly liable for the quality. But I very much want to make clear we don't right.
Jeanne Fromer 52:35
One Court did before we open things up to questions, I wanted to see if any of you wanted to react or connect what you'd said to any of the other remarks. Anything.
Speaker 2 52:50
Okay, okay, questions, why don't we start with you? Jonah, yeah, sir, thank you.
Speaker 3 53:06
So sorry. I was Jacob. I was very fascinated by what you said about people wanting the human creator for its own purpose. It made me think of sort of the Nietzsche quote about more morals, having esthetic criteria, and the person who squashes a cockroach is a hero, and the person who squashes a butterfly is a monster. And I feel like this is sort of, sort of the reverse of that, which is now our esthetics have moral criteria. Because I feel like it's one thing to say, oh, you know, this movie was made by Woody Allen, so I won't watch it. That seems slightly tangential. We're saying, Oh, this art was made by a machine. So, you know, I don't like in the same way, seems to go more directly to the nature of the work itself. So I guess my question is that, given that people, if not the copyright, system, recognizes that the prompts are a unique input. Do you see there as being any way that sort of AI artists can get around this?
Jacob Noti-Victor 54:10
Well, yeah, the first part, the Nietzsche part, is interesting. I mean, you know, I actually don't. I think that there's, I've always wanted to write an article, and have sort of kept trying and start stopping, about ethical preferences, in general, in creative choices, because I realize it's going to become like a cancel culture article, and I don't want to weigh in on that, but I do think there's a lot more people who don't buy, you know, who don't consume Woody Allen movies, because what they believe Woody Allen did, and that it, they believe it somehow inherently taints the art. So I think that you know, I don't, you know. I'm not sure this is that different. I think the authenticity point here is playing much more of a stronger role than the ethical criteria. I think a lot of people do care about loss of jobs in the creative industries, but I think it's much, I think it's a little bit closer to, like artisanal products. But whether you know, whether. Whether prompt based art will be, will become, you know, thought of as art by the copyright is that you're by the copyright system specifically, or is that your question? Or is it are more just like a general question, like, is this going to hamstring AI art? Or, yeah, I think probably not, because, you know, there's a question about whether copy or art needs copyright at all. I mean, you know that. So yes, an AI artist will have a lot of trouble, you know, selling, you know, not getting people to not sell posters of their work to begin with. But if there's truly an AI, a work of AI art, and it's and it appears in galleries. And, you know, there's a lot of art, there's a lot of other there's a lot of conceptual art right now that doesn't have copyright, that's considered quite important and even valuable. So I don't know if it will stand in the way of AI art proliferating. I think it will stand in the way of AI content proliferating in sort of the normal commercial channels like film, music, books, things like that, because of this risk that the producers of that material just don't want to have, you know, Swiss cheese copyrights. They don't want a copyright that where someone could say, well, I'm only using, you know, the screenplay of your fast and furious part 10 AI generated, but you know, not, you know, and therefore I can get away with that, because that you had to disclaim that element, you know, big Hollywood movie studios don't want that. So I think there will be, there'll be a barrier to those kinds of works proliferating in commercial channels, even if the AI art, so to speak, can still proliferate kind of culturally,
Speaker 4 56:42
just to kind of the one thing with Jacob's comment about the copyright office being the kind of official arbiter of authenticity, is it? Because that's one of the big questions right now, right is, how do I know it's a i r versus? I mean, maybe I do know now, but, but in the future, we might have a harder time the idea that we use 18 USC, 1001 that's the one you can't lie to. You know, as in, this is a return to formalities. We keep kind of motioning to Chris sprigman, so I'll, I'll do an old, old one to Chris, right? The indicted formalities, right? That maybe registration becomes a benefit, because the office is the kind of third put to Sure, yeah, in some ways, if they enforce
Unknown Speaker 57:26
and Furious movies,
Jacob Noti-Victor 57:32
well, no, they'll all be released at once, though
Jacob Noti-Victor 57:36
super fast and furious. I Yeah. So, two questions. So Chris, I'm curious about that result, about patents? So, yeah, people who are buying stuff in a drug store, they're buying products they already know. But it's really hard to believe that Mercedes Benz has spent so much money advertising 80,000 patents, pays John John ham to do all these cool advertisements showing these patents flying in the air without thinking that it has some effect. And you know, to your point mark, Mercedes is not one of the companies that has to prove it's got people who have PhDs. So I do wonder if it depends on the product and then to Rebecca So Black and Decker is taking no part in deciding these products that have Black and Decker on them, is that trademark valid? So is the way to constrain trademark holders by just saying, if you're not controlling these products, you don't get to keep your trademark. Okay?
Rebecca Tushnet 58:50
So, you know, obviously, I think, yes, right, that we should be holding people to their bargains, and if, in fact, they're, not, you know, controlling the quality. So Black conductors, argument is, we had a standard licensing agreement that allowed us to oversee this. And you know, for very good reasons, you often don't have to actually exercise that authority, right? If everything's going fine right with your franchisee, you know, there, there need be no sign, right, right? But I think the correct thing to do is to treat it like the Black and Decker Court did as a matter of reciprocity, like you were, you know, it turns out you weren't overseeing it, and so it's a fault, you know, it's false. And also, maybe you lose the trademark in the coffee maker space. That's that's fine, too, although, as Mark, you know, Mark talked about, there's no chance anybody else could, you know, adopt that. So it's not like, it's a huge deal. I think the real issue is in. Cases you know where there's product liability, right? So usually, like, if Disney's Frozen umbrella pokes somebody's eye out, it will usually be only the umbrella maker who, by the way, does not have nearly as much money as Disney, who's liable for that, even though, in theory, Disney had to exercise quality control. But if we were serious about the idea that licensing is a way to make more money, right? That, you know, the Chinese company paid Disney for the right to use Elsa on because it was worth it to them, then Disney should also be responsible for the damage that predictably results when the product gets wider distribution because of the licensing.
Mark McKenna 1:00:42
And of course, the claim of the validity of the mark in the licensing context is precisely that people are relying on the trademark as the indication of quality, right? That's the whole premise of the idea. So, but it is reckless, right? I mean, so it has long been true in tort law that we generally do not hold trademark licensors responsible for the quality of their product. It's just one of the many ways where I think actually the rules that we apply in licensing and trademark are just pretend, right? They don't. It doesn't actually describe the business relationships of most of the companies. And then they actively go into court and tell the courts, like, without any shame, we don't actually participate at all. And the courts like, that's cool, you're out and no.
Speaker 4 1:01:24
Well, so actually, what's interesting is, apparently the reason why my bum Bauer, they do six different types of products in their survey and find none. Now I don't know if cars one of them. I do think, though they're not doing that campaign anymore. And last time I went and bought a car, they didn't say anything about patented to me, right? And so I maybe they is that the other one? So I haven't bought a mattress recently. Maybe I should, but, like, um, but um. So I do the one thing after doing all these studies, is go out there, and as you're interacting with products, see how many of them, they really throw patented in your face. I think it's actually very few, right? And so I am with the thought of the market. They know more than we know, right? And so maybe they know the results here, and they try it out every once in a while and find out Ed didn't really work very well, and they kind of shrink back from it.
Jessica Silbey 1:02:18
I have a question also, about patents, Chris, so we've been talking about this consumers, sort of in a monolithic way, but I feel like there are consumers of patented products, like investor I mean, the different kinds of consumers and the patent signal might function differently in those situations. I can't explain. You know, why Mercedes does or does not do that, but it was my understanding. But maybe you can say something more about the folks who are investing in those. Those are different kinds. I don't know. Are those consumers in the way that you were thinking about it? So I think
Speaker 4 1:02:55
they're I think they are different. I think that's I think that's right, right? We can think of consumers in many different ways. My study tried to get a little bit at this, although I don't think Kickstarter or crowdfunding models are really, you know, there is some literature out there that, at least at the beginning, people that would even support a pre buy program thought they were like investors, right, at the very least, thinking that it was a product that actually would would come to term. You know, we'd actually get the product that's there, and at least the and these are just merely correlations, because they it could have been patented. They didn't say it or not. It looks like it didn't really affect the success of the campaign, which might get us a little bit at let's say the less sophisticated investor doesn't see that as strong of a signal as other signals. But there's no question as we get into, to me, at least as we get into the kind of core component of the way patents are supposed to operate, that it is a important part of it, right? If I'm a venture capitalist there. Ronald Mann has a really good article from way back when, where he surveyed VC investors and software companies, and they back in 2005 really cared about whether these software companies were pursuing patents or not. So there for that consumer. That's really, really important, right? And so I think that's a very good point to make that. And that's well, that, yes, that's a good that's a very good, very good point. And what's interesting is that's not what the false marking statutes targeted at the false marketing statute, as Rebecca was pointing out, the crocs case, it's complete, which is weird. It's it's completely targeted. It's like a false advertising statute that actually has an intent prong to it. So my understanding false ever as Greg, I said, as strict liability. This the patent one requires intent. I don't even really know why it's there anymore, but yes, you're exactly right. Great.
Rebecca Tushnet 1:04:51
So I have a question or comment for for Chris, for Jacob and mark one. The patent question I have is sort of piggybacks on. To Jessica's observation that there are lots of different kinds of consumers, and so we haven't really been differentiating among various types of consumers as much as maybe we should be in very all of the different panels that we've heard so far, not just this one. It's not really a critique of this particular panel, but so I'm thinking about sort of patents as an indicator of professional prestige for scientists, and then the consumer in that space might be somewhat different compared to like an ordinary consumer who's looking at a drugstore item, right? So just, that's just sort of a thought that I have, Jacob, I really do love that you are thinking about credence attributes in the context of copyright. And so what are the process characteristics? Because I think that that is a space that that I've explored in the trademark context, but there's, there's a lot of rich sort of stuff to be mined in the artistic process, and what people really sort of respond to or think is important in that context. So I just love that direction. And then Mark Mike, my response to you is a question, which is, you know, I I know so little about football that this was new information to me about Super Bowl and the big game. And your question at the end was really about, how do we place limits on on this type of behavior on the part of Mark owners, and I've gotten very obsessed with idea of misuse, wondering whether that type of over claiming in the trademark context, whether misuse would be the kind of limitation that you're looking for.
Speaker 4 1:06:38
I agree. I think you're exactly right. I think audience is really, really important here, not audience. But what do we mean by consumer is really, really important. And I'll just
Speaker 1 1:06:47
add, I think we're going to be seeing a lot more marks of rectitude in this space. You know, the stuff you've written on there have already been like, you know, there's, like, an attempt to create a kind of certification standard for human made films. I don't think it has much traction, but this that is one solution to that. That is one analog, you know, that's one overlap in this process as well.
Mark McKenna 1:07:08
Just to add on the end of that, I have some colleagues at UCLA who are on the computer science colleagues who are working on watermarking technologies that are supposed to differentiate, like which aspects of whatever thing you're looking at are AI generated versus human generated? I don't, I don't understand enough of the computer science to know how they're doing that, but that's the goal of it is to make that kind of information more readily available to people who are consuming the products. So, so, I mean, I do think that there need to be more kind of misuse sorts of ideas in trademark law. But I actually would sort of say my first kind of response to it is to say, dispositionally, courts need to recognize that aggressive claims of IP rights in the trademark rights particularly, are very likely to produce expanded rights over time, and so they should be especially skeptical of them when they're first, when they're first asserted. So if, like, every time, and I teach the university bookstore case, and I'm sure you've taught it, Maggie, it's like an abomination as a matter of trademark law. It's like they literally just run over four different trademark doctrines, and they're just like, whatever. It's fine. Like the university should have this, right? And so it seems to me that, like, if you're even more reason to be skeptical of cases where they're sort of seeming to do exceptional things. You might think the fact that that is likely to produce its own effect should make you even more worried about that effect in the first instance.
Speaker 5 1:08:33
So I have a question for Jacob, and sort of, I want to invite you to talk about I understand the idea if most consumer prefer human creativity over non human creativity, then, then, if the Copyright Office follow follow suit, that there is some incentive, it's great. But how do we account for First of all, change? In reality, it's likely related to mark argument about the circularity and then trenching of the interest. And how do we come to the diversity of preference, right? I mean, we create a countering non incentive for non human creativity, but even if the majority of people prefer one over the other, usually we don't think that we should make those I don't know. Do we think that the copyright office should make those choices of the majority? Like that, therefore the majority get what they want and the minority does not.
Speaker 1 1:09:24
Yeah, I agree. I'm uncomfortable having the copyright office really like respond to consumer preferences here. I'm more comfortable maybe having them respond to like, the TED Chang's of the world that like, there is a, there's actually a normatively coherent conception of art that we are importing here, rather than just saying, like, well, a living we decided a long time ago that a living garden is authored by mother nature and not by a human. And this seems similar, but if really, what they're actually saying is that there's something inherent in our you know, it's hard Any, any, any line that begins there's something inherent in art is probably problematic, but there's something. Inherent in at least well can well a desirable conception of art that requires esthetic choices to be made throughout the process of creation, rather than just at the idea's inception. And we're kind of indicating that I'm more comfortable with that, I guess. Right. Yeah, it's hard, but, you know, hard to copyright conceptual art right now. And you know, and we, yes, we are, we are defining culture to a certain degree. But copyrights never totally defined culture, and it certainly never defined the scope of, you know, avant garde art. So let like, there's plenty of room left. I
Announcer 1:10:45
I got Chris first one more.
Christopher Sprigman 1:10:47
I think so, picking up on what guy just said. I think if we, maybe, if we think about the copyright office having a fuller idea of authorship, right, which is something that, of course, the Copyright Act doesn't help them with very much. Despite, there's a statement that's gone around over the last 10 years that the Copyright Act basically answers all questions, this is one that maybe it doesn't so. So authorship,
Unknown Speaker 1:11:11
maybe write every statement.
Christopher Sprigman 1:11:15
Who would be stupid enough to do that anyway? So authorship, the idea might be just to, just to take your formulation and push it through authorship, that along the entire life or the the activity of authorship, there have to be creative choices being made, right? So not just the conceptualization, but the reduction to, you know, the embodiment. And this goes directly to your point that you know what about conceptual art? And I think it right exactly so conceptual art that comes up in my copyright class all the time. And I think there's this notion that, like if art, and it's hard to prize those things apart. But I think hybrid office, to its credit, has done a lot to try to prize them apart.
Speaker 6 1:12:13
Last, last question, a question for Mark that I think is going to immediately bleed into Jacob's area of expertise. I'm fascinated to hear that the NFL is successful in shaking down these bars and restaurants for use of the Super Bowl name. And it immediately made me think, well, what about that legal disclaimer that you see at the end of every single NFL game, like any use or a crown or description of the game without the Express recognition of the NFL is illegal, which I always thought had no legal effect. It was just like flexing in front of consumers to let them know where litigious will go after you. Are you aware, or Jacob, are you aware of the NFL being successful in prohibiting any third party from reporting on the factual outcome of a game, whether it's in like a fantasy app or I mean, maybe news reporting is different. I think it's probably a copyright question, but I'm
Mark McKenna 1:12:55
just curious. I mean, I've always understood that. So I understand, like, the interpretation, I've always understood that that phrase you're talking about is just hyper legalistic, right? When they say accounts, they actually mean the things that the people who are broadcasting the game say on the air. They don't want you to like repeat those things. I don't know that they've ever gone after somebody for like themselves making their own factual reports of it, but they do frequently go after anybody who they think uses phrases or any videos that in some way like invoke them. And so, no, I mean, very successfully, they get bars and restaurants to pay them $500 or something to settle the disputes based on the cease and desist letters from all of those things all the time.
Speaker 4 1:13:39
So what's the two minute warning? Two minute timeout. Has anybody ever noticed this? So in college games, they will not say two minute warning. They say two minute timeout. And I am certain
Speaker 7 1:13:50
that this is the NFL. Oh, it is. Yeah, for sure. It's the NFL told them not
Chris Cotropia 1:13:53
to do it. So I don't do it either because, you know,
Jeanne Fromer 1:13:58
we're about to wrap up. But I will use the last second opportunity to embarrass Mark McKenna, because I think you know he had a path to take many years ago. You went to law school and became a law professor, and he almost went and played professional football. He was quarterback on the Notre Dame football team, I will embarrass him. I may be exaggerating a little bit, but not that much, not that much. So he did. He was walk on quarterback for the Notre Dame football team. And I'm glad we've given him an opportunity to talk about football and intellectual property, and I am really grateful to all of our panelists for such a wonderful discussion. Please join me in thanking them.
Announcer 1:14:52
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