Dictionaries participate in the “real world,” which means they are subject to legal and ethical issues relevant across professional and commercial fields. Among the legal issues, dictionaries are intellectual products and are themselves intellectual property that draws on others’ intellectual property. Thus, dictionaries encounter copyright and trademark challenges: they incorporate material under copyright or trademark protection, and they have their own copyrights and trademarks to protect. Among ethical issues, recognition afforded those who make dictionaries figures prominently, as in the history of dictionaries, many of those involved in their making were abandoned to anonymity. Recently, intelligent dictionary readers have noticed cultural biases in dictionary entries, in the language used to define words, for instance, or labeling and other assertions of value embedded in dictionary structure. Some have boycotted dictionaries over such ethical lapses and dictionaries have responded, constructing a new ethical relationship between makers and readers of dictionaries.

Copyright law safeguards the exclusive rights of authors to their intellectual creations, emphasizing reproduction, public display, and adaptation. A fundamental distinction within this realm is between the intangible creative work and its tangible representations. Owning a tangible embodiment (like a painting) does not grant rights to reproduce the intellectual work it embodies. This demarcation is critical in the dynamic landscape of non-fungible tokens (NFTs), as acquiring an NFT does not automatically confer rights to the associated work. Instead, rights hinge on explicit contractual terms accompanying the NFT transaction. As the world of NFTs continues to unfold in all sorts of directions, delving deep into the intricacies of copyright law is important for artists, investors, and legal practitioners navigating the digital frontier. This chapter offers insights into the various copyright implications associated with NFTs.

Courts and scholars need to be judicious in translating the lessons of consumer neuroscience into new trademark doctrine. The chapter begins by cautioning against the motivated use of science in the courtroom, using the introduction of trademark survey evidence from trained psychologists in the early 1900s as a cautionary tale. Psychologists recognize two models of consumer reasoning: an automatic, emotional model and a deliberative, cognitive model. Neuroscience offers a window into both processes, but courts should be wary of admitting evidence purporting to measure non-deliberative changes in mark meaning. Trademark law has historically limited its remit to the informational components of advertising, in part because changes in a brand’s emotional meaning have been difficult to calculate. Neuroscientific evidence of these changes may now be available, but using them to decide trademark cases could lead to anti-competitive outcomes.

The Introduction sets out the central premise of the book: a sea change in our understanding of the human brain has deep, unexamined implications for intellectual property law. The Introduction begins to build the case for this argument by providing a brief description of the techniques used to detect the biological mechanisms attendant to different thought processes. It connects these techniques to the relevant actors whose perspectives structure the book’s three main parts: artists, audiences, and judges. Neuroscientific lessons for intellectual property law should be approached with a mixture of hope and caution. The hope comes from replacing some of the mistaken hunches about artists and audiences that have shaped intellectual property law for decades. The caution comes from a need to avoid junk science and neuroscientific theories that could do damage to the underlying aims of copyright, patent, and trademark law.

The touchstone of any trademark lawsuit is the likelihood of consumer confusion. Courts calculate this likelihood through a series of notoriously unreliable proxies, lamenting that their effort to understand the consumer must be a “shaky kind of guess.” Through the burgeoning field of consumer neuroscience, scientists can now determine when a subject is thinking about one brand versus another. Take, for example, recent research measuring changes in brain blood flow and oxygenation while subjects viewed several well-known trademarks. According to the researchers, each trademark has a different neural signature, with different brain regions reflecting perceptions like “excitement,” “ruggedness,” or “sophistication” upon exposure to the brand stimulus. By viewing these neural signatures and nothing else, researchers could distinguish whether the subject was thinking about Apple or Microsoft, Coke or Pepsi. Studies like this hint at a near future where fMRI readings replace today’s judicial guesswork about consumer perception.

It is hard to reconcile the research university’s supposed reason for being – the reasoned pursuit of knowledge – with its methods for building brand awareness and equity. Just like pitches for other luxury goods, the selling of higher education depends on irrational appeals devoid of information and marketing missives meant to hug the line between legally protected puffery and outright fraud. Although universities have always borrowed from the selling strategies of the commercial sphere, in recent years, there has been a sea change in the prevalence and degree of less-than-truthful content in higher educational self-promotion. How do university constituents – administrators, professors, students – interpret this gap between their institutions’ traditionally understood role and the logic of today’s academic branding strategies? The chapter chronicles the main rationalizations these actors deploy to reduce the tension between academic mission and academic marketing. By telling themselves that their school’s advertising efforts can be quarantined from the university’s larger purpose or actually provide tangible and truthful information to outside audiences or are a necessary evil, university constituents reduce their internal dissonance but fail to confront the realities of academic branding.

Chapter 15 focuses on legal issues surrounding the licensing of trademarks, brands, designs, trade dress and characters. It covers the historical development of the naked licensing and abandonment doctrines (Dawn Donut) and explores the issue of quality control through BarcAmerica v. Tyfield Importers and different examples of quality control clauses. It next addresses the related issue of trademark usage guidelines. It concludes with a discussion of franchising agreements, a special category of trademark licenses that often include stringent business format requirements and are regulated under state law. Franchise disputes are illustrated with IHOP Restaurants v Moeni.

This chapter describes how device makers try to leverage intellectual property (IP) rights to restrict repair and why those assertions are, as a general rule, inconsistent with a proper understanding of the law. IP—in the form of copyrights, patents, trademarks, and trade secrets—offers manufacturers an arsenal of weapons in the war on repair. From a practical perspective, IP law allows firms to credibly threaten to enjoin, silence, and ultimately bankrupt anyone with the audacity to repair a product without permission. That’s true despite the fact that IP claims against consumers and repair providers rest on questionable legal foundations.

This chapter treats developments in trademark in the context of the development of brand capitalism.Traditional trademark analysis displayed the features of a public biopolitics; developments around branding push it in a neoliberal direction.I focus on three developments.The first is trademark dilution, which protects brands as valuable in themselves. An extended analysis of Victoria’s Secret’s successful attempt to shut down a sex-toy shop that called itself “Victor’s Little Secret” shows how dilution also functions as a kind of subjectification.The second is a recent Supreme Court case ruling that, PTO rules against registration of disparaging trademarks violated the First Amendment.The result transfers power to brand owners.The third is the use of Geographic Indicators to protect “traditional” cultural indicia.This resistance strategy is a difficult one, as it risks entrenching conservative and stereotypical views of cultural groups, often at the expense of dissident forms. It thus illustrates an unexpected way that branding can function as a form of subjectification, and the potential limits of using trademarks and branding as strategies of resistance.

This chapter both provides a condensed case for why the analysis of intellectual property (IP) through differing regimes of power is a fruitful one, and details a couple of its implications. One is that we need to be attentive to the way IP law creates certain kinds of subjects, and to be willing to critique it on those lines.The other takes the form of a brief discussion of alternatives proposed to IP, in such areas as “low IP” zones and in creative commons-style proposals.I conclude that the degree to which these alternatives fundamentally challenge the neoliberalization of IP and its move away from public biopower, is essential in assessing the extent to which they actually are alternatives.The goal is not to be strongly prescriptive, but, in the manner of Foucault, to help figure out what are the right questions to ask.

Within his lifetime, Mark Twain established his alter ego as a brand, a recognizable commodity used to sell books, of course, but also inventions of his like Mark Twain’s Patented Self-Pasting Scrapbook. His name and likeness were used to sell cigars, whiskey, and a number of other products. After his death in 1910, his popularity and brand endured, even grew. He became a character that others used for their own purposes, until he has today become an icon and symbol of America. The history of Mark Twain’s use in popular culture is a fascinating study.

Chapter 7 describes how 3D printing technology will disrupt trademark law’s core function of indicating the source or origin of manufactured goods. The technology dissociates product design from product manufacturing. Design is embodied in a 3D printable file, while manufacturing is commoditized and democratized. When 3D printable files, as opposed to manufactured goods, are offered for sale, symbols appearing “inside” of the digital files (i.e., on the digital object) do not indicate the source of the file. Rather, source indicators are found “outside” of the file, on the websites that offer the files for sale. 3D printing technology will also radically disrupt the doctrine of post-sale confusion. At the same time, current, expanded theories of trademark law condemn uses of symbols that might dilute a trademark or suggest a connection to a trademark owner. These stronger versions of trademark protection, which are widely criticized, would give trademark owners to the right to control most uses of their marks “inside” of files. This would inhibit innovation and creative expression without a clear benefit to the public. Therefore, I recommend against these stronger protections for DMFs.

Chapter 3 provides a short overview of IP law for those not familiar with it. It introduces the major concepts of patent law, copyright law, trademark law, and design patent law, focusing on internationally agreed upon frameworks and treaties such as the Berne Convention, the Paris Convention, and TRIPS. It also walks readers through fundamental concepts like territoriality, validity, direct and indirect infringement, and remedies.

The indigenous peoples of the former Soviet Union are diverse and numerous, representing multiple ethnolinguistic families (Uralic, Altaic, Caucasian, Paleosiberian, and Eskimo-Aleut). Russian legislation establishes a unique category of indigenous peoples, the numerically small peoples, to whom are granted special legal protection. Conventional intellectual property law in Russia and the other former Soviet republics, however, offers little protection for the traditional knowledge (TK) and traditional cultural expression (TCE) of these peoples. Copyright law in these countries excludes folklore from the categories of works that are eligible for protection and requires that a protected work must have an identifiable author. These and other such conditions make copyright, patent, and trademark laws inadequate to protect TK and TCE in the former Soviet republics. Several of the former Soviet republics have adopted special sui generis legislation to offer limited protection to folklore, TK, and TCE.