To save content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about saving content to .
To save content items to your Kindle, first ensure firstname.lastname@example.org
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about saving to your Kindle.
Note you can select to save to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Neuroscientific studies of the creative process reveal that artistic ingenuity is not the black box the law supposes it to be. These studies explode several popular myths about art and artists—myths that courts have used to justify their failure to truly interrogate creativity. The courts tend to believe in the creativity of novices, romanticizing the artistic potential of children and the mentally ill. Instead, the science reveals a strong correlation between expertise, learned skills, and creative output. Western societies assume that creativity arrives in a flash of insight, often when the artist is not even thinking about the project at hand; the truth is that creative breakthroughs take sustained effort and motivation. Rather than being incapable of outside understanding, various aspects of creative thought—including the generation of new visual imagery—can now be identified via changes in brain chemistry. The chapter uses copyright cases concerning a variety of works—from fine art to photography to Barbie dolls—to illustrate the flawed ways in which courts try to discern artistic creativity and how they might be reconceptualized in light of neuroscientific discoveries.
This chapter details what a better understanding of the creative process should mean for copyright law. Instead of continuing to avoid any rigorous analysis of creativity, courts should investigate authorial motivation and solicit expertise to help diagnose the presence of the required “creative spark.” These changes would bolster copyright’s role in incentivizing the production of creative works while avoiding awards of copyright to unoriginal artworks. The chapter also explains how to recalibrate design patent law in light of what we understand about audience perception of design. The trier of fact should examine whether a design choice makes the design easier or harder for audiences to process. Design choices to be simpler, more prototypical, or more congruous are already likely sufficiently rewarded by consumer choices in the marketplace and should be presumed to lack the originality needed for design patent protection. Through a series of visual examples from actual design patent cases, the chapter explains how, by analyzing the effect of a design choice on visual processing fluency, courts can stop treating all design differences the same.
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.
Artists, audiences, judges. These are the three demographic categories that intellectual property law concerns itself with. The thought patterns of creators determine whether art and commercial design can enjoy legal protection from copyists. The boundaries of that protection are set according to audience perspectives on aesthetic appeal and consumer confusion. The law imagines artists to be more impetuous than deliberate, more holistic than detail-oriented.
Copyright’s test for infringement takes a uniform approach to aesthetics by treating all audiences and modalities of creative expression the same. We now know that this is not how aesthetic judgment works. The chapter describes how the law can be reformed to take differences in audiences and artistic media into account. The chapter also responds to potential objections to the use of neuroaesthetics in this legal context. A better understanding of how audiences perceive art, if implemented in the right manner, can help protect both economic and non-economic values embedded in copyright law in a more transparent way.
Design patents protect the way a product looks whereas utility patents protect the way a product is used. The law suggests a great disparity between the artistic creation relevant to design patents and the scientific creation relevant to utility patents. The design process is believed to be so personal and subjective that judges refuse to consider any part of a design more important than another. This stands in sharp contrast to the law’s assumptions about scientific invention, which permits objective and focused evaluation of the invention and its prior art. This art/science double standard does not jibe with evidence that the same neural phenomena are at work in all kinds of creative tasks. For scientists as well as designers, both sides of the brain must be engaged in the same process: coming up with an idea, then building on that idea so that it is useful. To earn design patent protection, a claimed design must be “nonobvious” to “the ordinary designer.” To the extent judges refuse to rigorously compare claimed designs against earlier works to determine nonobviousness, they are straying from the way designers actually generate innovative design.
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.
The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer.” Embedded within this test are several assumptions about audiences and art that neuroaesthetics—the study of the neural processes underlying aesthetic behavior—calls into question. To illustrate the disconnect between the law’s understanding of aesthetic appreciation and the reality of our reactions to works of art, the chapter explores a recent high-profile copyright matter involving the rock anthem “Stairway to Heaven.” Under current law, no effort is made to select jurors with the same listening or viewing tastes as the target audience for the original work—in this case, fans of classic rock. Nor can expert witnesses aid the jury’s understanding of that target audience. Instead, the assumption seems to be that we all appreciate works in the same indescribable way and one person’s reaction is as good as another. In truth, the basic biology of aesthetic reaction changes markedly depending on familiarity, experience, and even gender, contradicting copyright law’s one size-fits-all-approach.
Design patents are meant to promote designs that are “pleasing,” “attractive,” and “beautiful.” Yet judges fret that they will inject their own prejudices into such aesthetic determinations and have adopted a permissive nonobviousness standard that only rejects designs when they are exact copies of what came before. Neuroscience sheds light on the mechanics of design perception and appreciation. Visual processing is arguably the best understood mental process in modern neuroscience. Recent studies show that aesthetic preference is strongly tied to the ease with which an observer can mentally process a particular design. Although a limited amount of innovation may be needed to gain the observer’s attention, consumers insist on simplicity, familiarity, and congruence in designs. Rather than correlating with what an audience considers pleasing, innovation in design, after rapidly reaching an optimal level, begins to trigger aesthetic distaste. I use a variety of examples from popular products and actual cases—like Herman Miller’s Aeron chair and Lego blocks—to illustrate this audience preference for designs in the “aesthetic middle.”
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.
Although legal scholars have begun to explore the implications of neuroscientific research for criminal law, the field has yet to assess the potential of such research for intellectual property law – a legal regime governing over one-third of the US economy. Intellectual Property and the Brain addresses this gap by showing how tools meant to improve our understanding of human behavior inevitably shape the balance of power between artists and copyists, businesses and consumers. This first of its kind book demonstrates how neuroscience can improve our flawed approach to regulating creative conduct and commercial communications when applied with careful attention to the reasons that our system of intellectual property law exists. With a host of real-life examples of art, design, and advertising, the book charts a path forward for legal actors seeking reforms that will unlock artistic innovation, elevate economic productivity, and promote consumer welfare.