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Non-Conventional Copyright

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DOI: 10.4337/9781786434074

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 EDITED BY

Non-Conventional Copyright
Non-Conventional Copyright
Enrico Bonadio
‘Now is the right time to address the status of subject matter not conventionally protected AND
by copyright law. This challenging task has been carried out by a highly qualified group
of expert commentators in this stimulating, informative and, at times, provocative Nicola Lucchi
collection of essays that deal with the protectability of subject matter as diverse as land
art, graffiti, culinary preparations, improvised music, jokes, news items, 3-D printing and
DNA sequences, as well as the legal and moral limits that apply to copyright protection
generally. This is a timely examination of the boundaries of contemporary copyright law.’
Sam Ricketson, The University of Melbourne, Australia
Non-Conventional
Copyright law constantly evolves to keep up with societal changes and technological
advances. Contemporary forms of creativity can threaten the comfortable conceptions
of copyright law as creative people continually find new ways of expressing themselves.
Copyright
In this context, Non-Conventional Copyright identifies possible new spaces for
copyright protection.
Do New and Atypical Works Deserve Protection?
With current copyright law in mind, the contributions explore if the law should be
more flexible as to whether new or unconventional forms of expression – including
graffiti, tattoos, land art, conceptual art and bio art, engineered DNA, sport movements,
jokes, magic tricks, DJ sets, perfume making, typefaces, or illegal and immoral works –
deserve protection. Vitally, the contributors suggest that it may be time to challenge
some of the basic tenets of copyright laws by embracing more flexible ways to identify
protectable works and interpret the current requirements for protection. Additionally,
some contributors cast doubts about whether copyright is the right instrument to
address and regulate these forms of expression.

and Nicola Lucchi

Enrico Bonadio
Contemporary in topic, this thought-provoking book will be essential reading for
intellectual property law scholars, practitioners and policymakers. Creative people and
those involved in the creative industries will also find this book an engaging read.

Enrico Bonadio is a Senior Lecturer in Intellectual Property Law at City University,

London, UK and Nicola Lucchi is Associate Professor of Law at Jönköping International
Business School, Sweden.

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 © The Editors and Contributing Authors Severally 2018

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All rights reserved. No part of this publication may be reproduced, stored

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mechanical or photocopying, recording, or otherwise without the prior
permission of the publisher.

Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK

Edward Elgar Publishing, Inc.

William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA

A catalogue record for this book

is available from the British Library

Library of Congress Control Number: 2018944733

This book is available electronically in the

Law subject collection
DOI 10.4337/9781786434074

ISBN 978 1 78643 406 7 (cased)

ISBN 978 1 78643 407 4 (eBook)

Typeset by Servis Filmsetting Ltd, Stockport, Cheshire

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 Contents
List of figures viii
List of contributors ix
Foreword xi

Introduction: setting the scene for non-conventional copyright 1

Enrico Bonadio and Nicola Lucchi

PART I  ART

1 Copyright in the expanded field: on land art and other new

mediums 23
Xiyin Tang
2 Copyright and conceptual art 44
Shane Burke
3 Copyright in bio art 62
Jani McCutcheon
4 Street art, graffiti and copyright 83
Enrico Bonadio
5 Copyright protection of tattoos 111
Yolanda M. King
6 Copyright in culinary presentations 128
Cathay Y. N. Smith

PART II  MUSIC AND CULTURE

7 Protecting traditional music under copyright (and choosing

not to enforce it) 151
Luke McDonagh
8 Music improvisation and copyright 174
Giuseppe Mazziotti

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 vi Non-conventional copyright

9 Original compilations of musical works: can DJ sets be

protected by copyright? 201
Tom Iverson
10 Copyright protection for modern comedic material 219
Trevor M. Gates
11 Now you own it, now you don’t – or do you? Copyright and
related rights in magic productions and performances 237
F. Jay Dougherty
12 Copyright protection of sport moves 271
Péter Mezei

PART III  INDUSTRY AND SCIENCE

13 Copyright and typefaces 299

Arul George Scaria and Mathews P. George
14 The press publishers’ right in the European Union: an
overreaching proposal and the future of news online 316
Stavroula Karapapa
15 Law and odor: elusive copyright and other IP protection for
fragrances 340
Charles Cronin
16 Subsistence of copyright over CAD files in 3D printing: the
Canadian, the U.S. and European outlook 355
Teshager Dagne
17 Copyrightability of engineered DNA sequences 367
Nicola Lucchi
18 Artificial Intelligence, computer generated works and
copyright 382
Massimo Maggiore

PART IV  ILLEGALITY AND IMMORALITY

19 Copyright protection of illegal works 401

Eldar Haber
20 Copyright and pornography 418
Enrico Bonadio and Nicola Lucchi

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 Contents vii

21 On how to deal with Pandora’s box – copyright in works of

Nazi leaders 432
Marc Mimler

ECONOMIC EPILOGUE

22 Non-conventional copyright: an economic perspective 455

Tim W. Dornis

Index 481

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 Figures
4.1 Tag by Serk (New York City, 2003) 88
4.2 Throw-up by Serk (New York City, 2005) 89
6.1 Twitter post photo of original cake and inauguration cake 129
12.1 The empty frame of reference of sport moves 281
12.2 The results of the research 282
15.1 Orgue à parfums 344
22.1 Formal protection–creativity model 462
22.2 Market realities of protection–creativity mechanics 465
22.3 Over-/under-protection across different products and
marketplaces 469

viii

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 Contributors
Enrico Bonadio, Senior Lecturer in Intellectual Property Law, The City
Law School, City, University of London, UK.
Shane Burke, Lecturer in Law, Cardiff University, Law School, UK.
Charles Cronin, Lecturer, University of Southern California, Law School,
Adjunct Professor, Keck Graduate Institute, Claremont Colleges, US.
Teshager Dagne, Associate Professor, Faculty of Law, Thompson Rivers
University, Canada.
Tim W. Dornis, Professor of Law, Leuphana Law School, Germany.
F. Jay Dougherty, Professor of Law, Loyola Law School, Los Angeles,
US.
Trevor M. Gates, Attorney, K&L Gates LLP, Seattle, Washington, US.
Mathews P. George, IP lawyer and blogger. He practises in the High Court
of Kerala and other forums, India.
Eldar Haber, Senior Lecturer, Faculty of Law, University of Haifa; Haifa
Center for Law and Technology, Faculty of Law, University of Haifa,
Israel.
Tom Iverson, Partner, Media and Entertainment/Defamation and Privacy
Disputes Lawyer at Simkins LLP, UK.
Stavroula Karapapa, Professor of Law, School of Law, University of
Reading, UK.
Yolanda M. King, Interim Assistant Dean for Student Affairs and Associate
Professor of Law, Northern Illinois University College of Law, US.
Nicola Lucchi, Associate Professor of Law, Jönköping International
Business School, Sweden.
Massimo Maggiore, Founding Partner of Maschietto Maggiore Beseghini
law-firm; Adjunct Professor of Marketing Law at Bocconi University of
Milan, Italy.

ix

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 x Non-conventional copyright

Giuseppe Mazziotti, Assistant Professor in Intellectual Property Law,

Trinity College Dublin, Ireland.
Jani McCutcheon, Associate Professor, University of Western Australia
Law School, Australia.
Luke McDonagh, Senior Lecturer, The City Law School, City, University
of London, UK.
Péter Mezei, Associate Professor, University of Szeged, Hungary.
Marc Mimler, Lecturer in Law, Bournemouth University, UK.
Arul George Scaria, Assistant Professor of Law and Co-Director of the
Centre for Innovation, Intellectual Property and Competition (CIIPC),
National Law University, Delhi, India.
Cathay Y. N. Smith, Assistant Professor, University of Montana Blewett
School of Law, US.
Xiyin Tang, Lecturer, Yale University; Visiting Fellow, Yale Law School,
Yale Information Society Project; Associate, Mayer Brown LLP, US.

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 Foreword
The past two decades have seen policy makers, academic commentators
and industry experts advancing a plethora of law and policy proposals
to recalibrate the copyright system. As they observe, the internet, social
media and other new communication technologies have raised novel ques-
tions, posed unforeseen challenges and generated new stakeholders. In
view of this transformation of the copyright landscape, reform is needed to
ensure the adequate and appropriate protection of creativity. Such reform
will not only enable creators to recoup the time, effort and resources
invested in the creative process, but will also allow them to obtain much-
deserved rewards and recognition.
One area that scholars have underexplored in intellectual property
literature concerns the protection of non-conventional subject matters
under copyright law. These subject matters often lie outside the copyright
system. Even when they fall within, they tend to lurk at the fringes and
receive no or very limited protection.
This book examines three distinct groups of non-conventional subject
matters. The first group covers those subject matters that have received
considerable or growing attention in the copyright arena. Examples are
graffiti artworks, tattoo designs, comedic routines, typeface appearances
and fragrance formulae. Thus far, copyright disputes involving these
subject matters have remained infrequent, and commentators have treated
these disputes as rarities, if not oddities. In intellectual property literature,
these subject matters have also raised more questions than answers. The
chapters in this book are no exception. They provide helpful assessments
of whether the courts or the parties have drawn the right conclusions – and,
if so, whether the arguments and rationales involved could be extended to
cover other non-conventional subject matters.
The second group of non-conventional subject matters comprises those
having longstanding existence yet receiving no or limited copyright protec-
tion. Examples are culinary presentations, jazz improvisations, magic
performances and sport moves. The chapters discussing these subject
matters are highly insightful because legal experts continue to question
their fit within the copyright system. If they are asked about copyright
protection for these subject matters, it will take them time and effort to

xi

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 xii Non-conventional copyright

formulate thoughtful answers. Such answers will require not only a deep
understanding of copyright law and policy, but also creative legal analyses
in areas that do not lend themselves to easy answers.
The last group of non-conventional subject matters includes novel
issues that have slowly begun to garner attention from copyright experts
from around the world. Providing cases of first impression, these subject
matters are the fruits of new technological advances, such as 3D print-
ing, synthetic biology and artificial intelligence. The chapters examining
these subject matters are timely, important and of great practical value.
They provide useful insights into the ongoing and future development of
copyright law and policy.
Taken together, all of the chapters in this book have addressed
important questions concerning the role, objectives and boundaries of
the copyright system. They also bring to mind the distinction the US
Supreme Court made between traditional and non-traditional contours of
copyright protection in Eldred v. Ashcroft. Although that decision focused
on US law, the Court’s failure to provide additional guidance foreshadows
a worldwide challenge in the copyright field. Since the establishment of
the modern copyright system more than three centuries ago, protection
has been greatly expanded from books and other printed matter to cover
photographs, motion pictures, architectural plans, sound recordings, com-
puter programs and now 3D printed artefacts. What constitute ‘traditional
contours’ – or, for our purposes, conventional subject m ­ atters – remains
highly debatable.
In the past few decades, copyright law and policy has evolved consider-
ably, thanks to the active and continuous demand by creators and their
investors for new or increased protection. As a result, the boundaries of
the copyright system have been vastly expanded to cover non-­conventional
subject matters that ordinarily would not receive protection. As the system
continues to expand, its coverage will begin to encompass other non-
conventional subject matters.
There is an irony in this seemingly endless expansion, however. What
is deemed non-conventional depends largely on what falls within the
convention. The more protection the copyright system affords to non-
conventional subject matters, the more of these subject matters will even-
tually become conventional. Thus, whether intentional or not, the present
treatment of non-conventional subject matters will colour the future
development of copyright law and policy. The current developments and
reform in the copyright area will also directly influence the future protec-
tion of these subject matters.
In this volume, Enrico Bonadio and Nicola Lucchi have put
together an excellent collection of chapters examining the treatment of

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 Foreword xiii

­ on-conventional subject matters in copyright law. Written by authors

n
from around the world and covering laws in multiple jurisdictions, the
individual contributions are intellectually stimulating, legally creative
and generally fun to read. They call on us to think more deeply about the
nature and scope of copyright protection, the justifications behind such
protection and the interplay between copyright law and other areas of
intellectual property law. They also invite us to explore the core question
in today’s copyright debate: should protection be expanded – and if so,
how and why?
This book has covered a wide variety of non-conventional subject
matters. It has also explored many important questions concerning the
protection or non-protection of these subject matters. To deepen our
understanding of copyright law and policy, I invite you to join the vol-
ume’s editors and contributors to embark on an exciting and rewarding
journey traversing the landscape of non-conventional copyright.

Peter K. Yu
Professor of Law and Director, Center for Law
and Intellectual Property;
Texas A&M University School of Law
April 2018

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