Quarterly Journal 46-4 Volume 46, Issue 4 February 2019

The Duet on the Internet: Balancing Sharing Information and Protecting the Right of Publicity on Social Media

On November 15, 2017, members of the Arizona State University’s Alpha Omicron Pi sorority attended a sisterhood event at AZ Air Time-Scottsdale, a local trampoline park. Ciera Slater and Annika Skigen, sorority “twins,” attended the event in matching, bright red, Mickey Mouse pajamas and commemorated their night by posting a photograph of themselves on Slater’s Instagram. AZ Air Time-Tucson, a different location of the trampoline park, re-posted the photograph of Slater and Skigen, claiming discounts for twins and triplets – “Double the Fun, Double the Love!” Slater, who had never even been to this location of the trampoline park, did not consent to the use of her photograph by AZ Air Time-Tucson. 

The lack of uniformity in right of publicity laws makes it unclear whether someone can protect their image from being re-posted on social media, especially if there is no direct advertisement attached to the post. There needs to be a federal right of publicity, with a single normative justification, to allow for uniform protection for infringements of the right of publicity that could happen everywhere. The right of publicity is both economic and personal. Social media can be both economic and personal. The right of publicity needs to encapsulate this dual nature and allow social media users to prevent the exploitation of their names, images, likenesses, and identities for someone else’s benefit.

 

Regulatory Exclusivity Revision: Working to Achieve Greater Innovation of Approved New Molecular Entities

Rewarding innovation is a part of the regulatory system for drugs, both in terms of patent protection  and the granting of regulatory exclusivity.  One particular area where there has been a significant amount of innovation is in the development of orphan drugs.  However, there has been a persistent issue regarding the significant percentage of approved new drugs that are less innovative than their counterparts. 

Further, it appears that the level of innovation in approved drugs containing a new molecular entity (NME) has been on the decline.  This issue is highlighted by the proliferation of "me-too" or "addition-to-class" drugs.  Me-too or addition-to-class drugs include drugs such as Lipitor  and Nexium.  These are considered less ground-breaking than other NMEs, as they generally function similarly to products that are already on the market.  To combat the proliferation of me-too drugs, this Note proposes increasing regulatory exclusivity as a way to incentivize drug companies to create more innovative NMEs.

This Note suggests that increasing exclusivity periods for more innovative NMEs, in that they are a drug with an NME that either demonstrates a new way to treat a disease or is designated for priority review by the FDA,  will result in a greater number of these drugs being produced. 

A New—and More Definite—Standard for Indefiniteness Determinations

Section 112(b) of the Patent Laws requires that “[t]he specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.”

The purpose of this provision, otherwise known as the “definiteness” requirement, is to ensure the public is given clear notice of a patent’s boundaries. For obvious reasons, providing clear notice of such boundaries is of critical importance to the American patent system and to the public’s reliance on this system.

But there remains a lack of clarity on the definiteness requirement in practice. That is, federal courts and the U.S. Patent Trial and Appeal Board (“PTAB”) are applying different standards to determine if a patent’s claims satisfy the definiteness requirement.

This Note analyzes how federal courts and the PTAB handle indefiniteness issues. This Note also suggests a single legal standard for indefiniteness issues for use in both federal courts and the PTAB

A Design of Its Own: How to Protect the Fashion Industry

This Note discusses the gap in intellectual property protections for the fashion industry.

First, it details why fashion is art of the type that typically qualifies for copyright protection, and not just a means of covering the body. Next, it discusses why this hybrid nature makes it unique and worthy of protection under current U.S. copyright law.

Because designs are often chosen not just for their functional purpose, but for their artistic and expressive qualities, clothing is different from many other types of works protected by IP frameworks, including trademark and patent.

The dual purpose and ability of fashion to be used as a form of expression should not keep if from the protection it deserves. The Supreme Court addressed the standard for copyright protection in the context of clothing design in Star Athletica v. Varsity Brands.

This Note suggests that this recent development marks an opportune time to push for new legislation that will expand the Star Athletica ruling. These increased protections for the fashion industry should be developed by drawing on other forms of IP protection for fashion in the United States, and protections in place in other countries.

These hybrid works call for a hybrid solution. Though its solution, this Note fills the gap for fashion designs, particularly for designers that are just starting out or less conspicuous when it comes to branding.