The Law of Ideas

I’m thinking we keep it simple and call it the facebook.”

–Harvard sophomore Mark Zuckerberg, as quoted in Ben Mezrich, The Accidental Billionaires.

When Mark Zuckerberg registered the domain name for “thefacebook” and began building his new website in late 2003 and early 2004 (the original Facebook homepage is pictured below), he was potentially creating several valuable forms of intellectual property. But what type or types of intellectual property was Zuckerberg creating? Accordingly, in our next lecture we will study intellectual property rights or the “law of ideas,” including copyrights and trademarks (Lesson 6) as well as trade secrets (Lesson 7). Specifically, we will explore the relation between these major forms of intellectual property and the launching of the original Facebook website on 4 Feb. 2004.

Bonus IP question: By the way, what do you think about intellectual property rights in tattoos? (My former student Talina Santiago posed this problem to me a few years ago in Ponce, P.R., and her question still resonates with me all these years later.) Specifically, can you copyright a tattoo design, and if so, who would own the legal rights to the tattoo design: the tattoo artist or the person who paid for the tattoo? We will consider the 2011 “Mike Tyson tattoo case” (Whitmill vs. Warner Brothers, Case No. 4:11-cv-752), and try to answer these questions in class. Specifically, we are going to re-enact an informal mediation session in our next class, based loosely on the facts in the actual Mike Tyson tattoo case. In summary, tattoo artist S. Victor Whitmill created a face tattoo for boxer Mike Tyson in 2003. As the creator of this world-famous tattoo, he sued Warner Bros. for using his design in one of its films (The Hangover: Part II) without the artist’s express authorization. (In addition, for this exercise, let’s assume that Mike Tyson is also suing the movie studio on the theory that he, not the artist, owns the legal rights to his face tattoo. After all, it’s his face!) Warner Brothers’ position, of course, is that tattoos cannot be copyrighted.

In real life, this interesting case was settled out of court through mediation, so in our next class, we are going to re-enact this mediation session. Accordingly, we will need several volunteers for this activity:

  • Mike Tyson: Your role is to explain why you own the legal rights to your face tattoo.
  • S. Victor Whitmill (tattoo artist): Your role is to explain why you own the legal rights to Mike Tyson’s face tattoo.
  • Kevin Tsujihara (CEO of Warner Brothers): Your role is to explain why tattoos cannot be copyrighted as a matter of law.
  • The mediator: The class as a whole will play the role of the mediator and will vote on what course of action to recommend to the judge in this case.
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