A Pantone Prerogative: Defining the Privilege to Standardize Color (Felicia Caponigri)
Color standards have been around for a long time. Pantone
developed standards and uses its system to promote the colors; registration for
the matching system and the color chip. Does it have ©? Some © in its booklets—pre
76 Act case, pre Feist, where Pantone successfully won a PI against a competing
seller of booklets. © in taxonomy?
Pantone does a lot of licensing—the business model is based
on collabs, licensing their chips, selling services to companies that then
advertise that they are using a specific Pantone color, or has Pantone christen
a color for them. Other companies describe their registrations in Pantone
colors. Require companies not to reverse engineer; authenticity and consistency
claims are also used.
Should brands that standardize avoid certain claims? Pantone
doesn’t seem to be trying to litigate against competing standards but maybe
that’s lack of competition. Maybe a patchwork of IP rights leaves room for a
private standard, but not every brand can standardize color. Europe requires
some kind of identifier for registration, whether Pantone or otherwise.
Fromer: does Pantone dominance allow businesses to chill
each other with color ownership claims? Or does that come from the companies no
matter what?
When Procedure Becomes Policy: The Hidden Substantive
Effects of the Design Law Treaty (Christine Farley)
Int’l design law becoming a thing as we speak. New WIPO treaties:
Treaties on IP, Genetic Resources, and Associated Traditional Knowledge, and Riyadh
Design Law Treaty.
There’s no underlying harmonization with design law: thresholds,
scope, etc. Once we put procedure before substance, that procedure closes the
opportunity for countries that haven’t developed their own design law to debate
what that law might look like.
This treaty was promoted by high-income countries: the
industrial design five, which already take most advantage around the world of
filing for design registrations. 75% of designs applied for around the world come
from China, EU, Korea, US, and Japan. 2.9% Africa, Lat Am & Oceania; 22%
rest of world. Not very important for local industry in many places.
Substantive choices hidden in procedural drafts: the idea of
harmonizing application procedures—a “closed list.” Any adherent can only ask
about certain things in its application. Can’t ask about whether design derived
from traditional cultural expression/resources/knowledge; whether design was
made from AI; whether design was made w/federal funding; any characteristics of
applicant that might enable fee reduction. African group did secure disclosure
that a treaty adherent may require that an application contain info, including
information on TCEs and TK of which the applicant is aware, that is relevant to
eligibility.
Requires allowing for partial designs by providing for
allowing matter that doesn’t form part of the claimed design if shown by visual
means like dotted/broken lines; partial designs are not even contemplated by
most jurisdictions.
Provision for technical assistance to implementing
countries.
Room for maximalism: countries can always grant more
protection.
Provision to allow maintenance of application unpublished
for a minimum of six months.
Copyright & Living Organisms (Cathay Smith)
GloFish: registered trademark for glowing fish, genetically
altered—but © rejected. The GloFish company owns a number of utility patents
related to them; wants to look at potential design patents. Living organisms
can be goods for TMs, e.g. Galactic Purple by GloFish. Could a fish be
considered product design trade dress? Not sure.
Small number of decisions have rejected living matter as
original works of authorship b/c they don’t owe their expression to human
creativity and aren’t fixed. The GloFish, for example, was not the equivalent
of using paint on a canvas. Living works of authorship can’t meet the
originality requirement. Also, they just aren’t copyrightable subject matter.
But should © exclude original expression solely on the basis
that the subject matter is living?
Using organism as medium of expression; canvas of
expression; or work itself.
Medium: floral gardens, arrangements, Chapman-Kelly v. Chicago
Parks Decision. While individual living flowers might not be ©, unique
arrangement into shape of peacock could be protected.
Canvas: applying human-created art to pigs, cats via tattoos;
painting cockroaches.
Work itself: the GloFish; genetically modified poinsettia
plants. Modified to exhibit creative expression. The GloFish passes its genes
on; the painted fish is created with injecting color and does not pass on the
colors. Is that more like using the fish as a canvas?
Tree shaping can involve training living trees to have them
grow naturally in design or physically trimming them to create specific designs.
Should we limit based on process of creation, or would it be
better to have a straight rule about subject matter? What about dead organisms—copyrightable
then? Art made with flowers, taxidermy?
Q: if allowed, why wouldn’t that allow © of dog breeds?
[raises issues of visual primacy in ©]
A: can’t see getting dog breed through the © standard, but
originality is possible in the future.
Q: © as a rule of evidence by Doug Lichtman: a lot of
doctrines are actually evidentiary including how do you know whether there was
copying. Copying in fact is going to be difficult for a living organism.
Q: patents can only cover discoveries; 102(b) says (c) doesn’t
cover discoveries—seems like they’re mutually exclusive.
RT: Selection, coordination and arrangement as a principle
that helps distinguish the hedge animals and trained trees from the “canvas”
cases? Are these useful articles? If so: Design of/design on distinction,
suggested by design patent? Program your genes to express pigment to display a
tattoo, which is that?
Q: what about patents?
A: might cover different things—e.g., if GloFish is ©able
then painted fish might infringe, whereas painted fish wouldn’t infringe patent
on GloFish.
Copyright Theory and Doctrine II
The Snoopy Solution: Copyright Safety and Licensing
Opportunities for Generative AI (Matthew Sag)
[came in late] Disney has a 1-year exclusive deal with Sora;
the cost to user expression will essentially disappear. Filtering is not all
bad when recognized as a licensing opportunity—social costs decline & harms
of infringement reduced.
Silbey: how to think about secondary liability and photocopy
machines in light of your argument—although our uses of photocopier could be
licensed, the machine maker doesn’t pay.
A: AI companies aren’t just passive—they make so many choices
in model design, data curation, and 1000s of steps in between, so they aren’t
simply intermediaries. Ultimately the user provides the final command, but this
isn’t as simple as primary and secondary actors. We have secondary liability b/c
sometimes it seems appropriate to hold a noninfringer liable for infringement.
But that presupposes being able to distinguish primary from secondary, which is
volitional conduct. Volition is about role in selection, not just whether there’s
automated behavior. Courts could say this is volitional, or that being
automatic is close enough.
Rosenblatt: distributive impacts. Who’s paying for the
license, and we’re asking not about the work but about the use of the work post-Warhol.
Who’s negotiating the license? The big players, not independent artists. Who’s
going to pay for the cost of the license? It will be transformative users.
A: yes, massive distributional consequences.
The Artist Signature as Source (Peter Karol)
Book project on TMs and art. Basic claim: larger project—artist
signature or monogram is quintessential TM but long relegated to outer rim of
TM practice and doctrine. Would be improved by increased acceptance of and
appreciation of artist marks as historic and core TMs. And Art Law would be
improved by centering TM law in regulating creation & distribution of art
works—as proof, he got put on a copyright panel!
Art historical literature on history/purpose of artist
signature. Western: 12th century—not beginning in the Renaissance.
Michelangelo signed one work (it says that he is making it, which was
common in early signatures); one subsequent account says that he resented hearing
the work attributed to another.
Modern obsession w/signature: estate stamp applied by Monet
estate. Warhol had works signed for him by his mother or by an assistant who
copied his mother’s version.
Dual explanations in the art historical literature: Authorial
(source-based): artist has aegis or authority in having supervised and given
imprimatur to final product as finished good ready for public sale or
consumption; signer stands behind this thing, and different from other things
w/o that signature.
Autographic/auratic: the signer personally touched or
physically rendered the thing under observation such that we feel we are in the
embodied presence of the worshipped figure. Spiritual, akin to role of relic or
letter hand written by Abraham Lincoln.
Perhaps there’s a movement from authorial to autographic
after the Renaissance.
Some early signing practices were religious—wanted credit at
Judgment Day; wanted people to pray for them; pride/ego. Pragmatic business considerations
esp. for workshops. Especially when we see the market rise instead of direct
patronage, where signing wasn’t as important as the patron already knew the
commissioned artist. Advertising/goodwill function of signature as well. Also a
signal of completeness. Legal benefits/requirements: required by guild or
otherwise. Market demand, especially 18th C. on. All consistent w/
TM concept.
Derrida: signature tethers artist to work while making it
repeatable/iterable. But individual artists’ signatures change a lot over time.
Criminal identity theft case from 2025: source is not identity;
forging name on art was not identity theft b/c it didn’t involve transferring,
possessing, or using the means of ID of another person as required by statute. Forgery
was misrepresentation of origin, not identity.
Heymann’s previous work on The Birth of the
Authornym is also relevant.
Silbey: what about when the author hides themselves in the work,
like a participant?
A: yes, being broad about definition of signature. That’s a
little different than TM, more like a selfie.
Fromer: Dastar!
RT: Real issue is that TM isn’t TM any more! The description
is of classic TM function, but immediately it’s worrisome to think of treating
a signature as modern TM b/c it would extend © infinitely and do a bunch of
other things.
A: Yeah, one point is that understanding the signature as a
core example could remind us of what TM was supposed to do.
Heymann: transferability of personal names—designers have
signed away the right to use their names.
A: art scholarship connects the signature to the rise of
notarial practices—a signature has legal effect.
Buccafusco: compare novels: people (subset) want signed
copies of novels, allographic v. autographic.
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