University of Montana School of Law

    Street Art: An Analysis under U.S. Intellectual Property Law and Intellectual Property\u27s Negative Space Theory

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    Street art, in its original and purest form, is artwork created without authorization, usually illegally, on either private or public property. Until recently, street art has been considered a social nuisance and is almost universally illegal, but it is now slowly becoming a “hot commodity” garnering press and social media attention. In recent years, local communities are increasingly beginning to value street art in their neighborhoods, and the art world has also caught on to the street art trend. As a result, street art is being copied and reprinted on clothing, posters, commercial items, and exhibited and sold in auction houses and galleries. Cities, such as Bristol, Bethlehem, and Taichung, are embracing street art by offering guided tours to show off their famous street art. Street art—no longer considered merely a social nuisance as it once was—is now becoming the “next big thing” in the art world and market. As street art evolves into commodity, the questions naturally are: who owns street art, and should intellectual property law protect street art from unauthorized copying, removal and sale, or destruction? This Paper attempts to answer these questions under U.S. law and under recent scholarship examining “negative spaces” in intellectual property. Specifically, this Paper concludes that street artists could attempt to use U.S. copyright law and VARA to protect their artwork from unauthorized copying and destruction. However, due to the nature of street art, and the ethos of street artists, intellectual property law is not an effective way to protect street art. Nevertheless, as has been evident in the past decade, innovation and creativity in street art will thrive even without the artificial exclusivity created by intellectual property. Street artists have been protecting their work through normative rules developed over the years, and communities are also looking for creative ways to protect street art from being destroyed or removed from their neighborhoods. The concern that the lack of formal intellectual property protection will “discourage” street art’s creation is not a valid justification to impose or create stronger intellectual property protection for street art. Economic incentives are not necessary to motivate the creation—or the continued creative output—of street art. The evidence of this can be found on the streets of any big city, where street art continues to flourish in a norms-based, low-IP world

    Food Art: Protecting Food Presentation under U.S. Intellectual Property Law

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    In 2006, a scandal broke in the culinary world. It was alleged that Robin Wickens, chef at (now closed) Interlude restaurant in Melbourne, Australia, had copied dishes by renowned American chefs Wylie Dufresne, Jose Andres, and Grant Achatz. It is not uncommon for chefs to borrow recipes from other chefs, and there has been a long culture of sharing in the cuisine industry. However, what made Wickens’ actions scandalous was that he had purportedly copied the artistic presentation and plating of other chefs’ dishes, not just their recipes. This Article examines whether chefs can protect the artistic presentation or plating of their dishes under U.S. copyright law, trademark law, or design patent law. The analysis proceeds in three parts: (1) whether artistic food plating could fulfill copyright’s requirement of being an original work of authorship fixed in a tangible medium of expression containing artistic aspects separable from its utilitarian functions; (2) whether artistic food plating could function as protectable trade dress that is nonfunctional and able to acquire secondary meaning; and (3) whether artistic food plating could be protectable as new, original, ornamental, and nonobvious design patent. This Article concludes that a chef may not be able to copyright her artistic food presentation because of copyright law’s fixation and conceptual separability requirements, but—in limited circumstances—a chef may be able to claim trademark protection of a signature dish, or apply for a design patent for her ornamental plating arrangement. Nevertheless, even though chefs may have these options under intellectual property law, they are not guaranteed to prevail in an infringement action, nor would chefs necessarily want to use intellectual property laws to protect their dishes in light of the accepted culture of sharing and borrowing in the cuisine industry

    Precap: \u3cem\u3eIbsen v. Caring for Montanans, Inc.\u3c/em\u3e; Can You Sue Your Insurance Company for Violating the UTPA?

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    Does a private consumer of insurance have a cause of action against an insurer to recover damages caused by a violation of the UTPA, or does the enforcement of the UTPA outside the claims handling process lie exclusively with the State Auditor

    \u3cem\u3eMMIA v. Bozeman\u3c/em\u3e: Insurance, Reinsurance, and the Boundaries of McCarran-Ferguson Reverse Pre-emption

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    Does the Federal Arbitration Act preempt Mont. Code Ann. § 275-114(2)(c), which invalidates arbitration agreements in insurance policies except those found in contracts between insurance companies, in spite of the McCarran-Ferguson Act’s reverse preemption provision, which delegates the regulation of the business of insurance to the states

    Recent Decisions Affecting the Montana Practitioner

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    Recent Decision

    Montana Bar Association Activities

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    Montana Bar Association Activitie

    Environment, Economy, and Community in the Pacific Northwest

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    Useful Life and Salvage Value Are Defined by the Supreme Court for Federal Income Tax Depreciation Purposes

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    Useful Life and Salvage Value are Defined by the Supreme Court for Federal Income Tax Depreciation Purposes (Massey Motors, Inc. v. United States, 1960
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