Monday, April 2, 2012

Christopher Buccafusco: Making Sense of Intellectual Property Law

Does the human sensory experience of a product determine whether it is copyrightable or patentable? In his forthcoming article Making Sense of Intellectual Property Law, Professor Christopher Buccafusco (Chicago-Kent College of Law) argues that intellectual property law has established a dichotomy between objects appealing to different senses and offers a novel modification of IP doctrine. He asserts that, traditionally, copyright involves works that have the aesthetic appeal associated with sight and sound, whereas the ‘functional’ connotation of touch, taste, and smell are typically classified in patent law. In this article, Professor Buccafusco suggests that traditional aesthetic theory has become outdated and proposes a change to intellectual property law that would recognize the unity of all senses.

Professor Buccafusco begins his analysis by explaining how intellectual property law seems to have divided valuable works and innovation into two distinct categories. He explores the growth and evolution of copyrightable subject matter and patent law’s enduring focus on tangible products. Professor Buccafusco offers a simplified distinction between copyright and patent law by categorizing the protected works—copyright law promotes aesthetic products, whereas patent law promotes useful products.

Professor Buccafusco observes that the sensory hierarchy in intellectual property law mimics that of aesthetic theory and distinguishes the senses through their capacity for aesthetics and functionality. He argues that this hierarchy may not accurately reflect the actual aesthetic capacity of the senses. Additionally, he notes that modern research has revealed aesthetic preference to be rooted in evolutionary forces and natural selection. For example, in studies across diverse cultures, blue and green (colors that mimic food and water) were highly preferred—orange, yellow, and teal were commonly despised. Moreover, Professor Buccafusco notes that the increased interest in cooking and chefs’ manipulations of foods to express emotions or share ideas strongly support the suggestion that the sense of taste may have much greater aesthetic capabilities than previously presumed. The assumptions that sight and sound are nonfunctional and unconstrained, and the belief that touch is communicatively weak, have been significantly undermined by recent research. Professor Buccafusco notes that the experiences of touch and aesthetic delight encountered by blind persons further demonstrate the expansive aesthetic capacity of tactile communication. Professor Buccafusco argues that recent social science research helps establish that the differences between sensory aesthetic limitations and capacities, if any, are merely quantitative.

Professor Buccafusco concludes this article by suggesting that intellectual property should embrace a unified sensory experience. He argues that the communication of ideas, emotions, or pleasures, regardless of the senses used to communicate, should be deemed nonfunctional and possibly copyrightable. Professor Buccafusco suggests that in order to merit copyright protection, a work of expression would still be required to meet originality and creativity requirements. Under his proposal, patent law could remain the appropriate method of protection for nonexpressive and noncommunicative, yet functional, products.

The characterization and distinction between copyright and patent protections have been a common topic for recent scholarly discussions. See e.g. Jeanne Fromer, A Psychology of Intellectual Property, 104 Nw. L. Rev. 1441 (2010); Jonathan Masur & David Fagundes, Costly Intellectual Property, 64 Vand. L. Rev. (forthcoming 2012); Gideon Parchomovsky & Peter Siegelman, Towards an Integrated Theory of Intellectual Property, 88 Va. L. Rev. 1455 (2002). Not only have the available resources and technology in innovation evolved, but the methods of communication, creativity, and expression differ from past designers. Professor Buccafusco’s article establishes the necessity for a proper understanding of the assumptions that intellectual property law has been premised upon and proposes a novel solution for improving the categorization of intellectual property.

Posted by Derik Sanders (, a 2014 Juris Doctor Candidate at SMU Dedman School of Law and research assistant to Professor Sarah Tran.

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