Q&A with Associate Professor Cathay Y. N. Smith
Background: Cathay Smith is an associate professor teaching intellectual property law, property law and art and cultural property law.
Prior to joining the faculty at the Blewett School of Law, Professor Smith taught at the University of Denver Sturm College of Law as a teaching fellow and was an intellectual property attorney with Katten Muchin Rosenman LLP in Chicago, representing multinational technology, fashion, and entertainment and media corporations in intellectual property disputes.
Smith has litigated intellectual property cases in federal district courts around the country and is admitted to the Federal Court of Appeals for the Ninth Circuit, Third Circuit, and Federal Circuit. She holds a bachelor’s degree from Washington and Lee University, a J.D. from Loyola University School of Law and a master’s degree from the London School of Economics and Political Science.
Her legal scholarship focuses on copyright and trademark law, art law, cultural property and heritage law, and IP theory, and her articles have appeared in the Yale Law Journal Forum, Florida Law Review, UCLA Law Review Discourse, Pepperdine Law Review, Nevada Law Review, and others.
Why intellectual property (IP)?
Intellectual property law is one of the most relatable, relevant, and fun areas of the law. Every product we buy, technology we interact with, article of clothing we wear, television show we watch, book we read and song we hear interacts with IP law. This includes trademarks, copyrights, patents, trade secrets and rights of publicity. IP is also an area of law that continues to evolve with society, innovation and the new ways in which we create, connect and share information.
With the continued rise of the innovation economy, IP is often one of the most valuable assets a company can own. A recent study found that 85% of the net worth of S&P 500 companies are intangible assets. It is more important than ever for law students and attorneys to have basic training in identifying and understanding IP law.
IP is also fun! It’s always in the news. From complaints about politicians using music or photographs without permission, to celebrities trying to register their babies’ names as trademarks, to companies attempting to patent human genes, IP law is at the forefront of our daily social, political, cultural and scientific lives.
Why did you leave private practice?
I was fortunate to work with amazing private practice mentors who helped me develop the knowledge, skills, and values needed to provide my clients with exceptional and well-rounded legal service. I worked on exciting and cutting-edge cases while representing high-profile clients in tech, media, and entertainment. The issues were often novel and complex, such as trademark genericide, the right to use trademarks in titles of expressive works, immoral and scandalous marks, and copyright’s scenes of faire doctrine in film.
I eventually left private practice in order to explore the creative aspects of teaching. I appreciate the challenge of finding ways to keep my students interested and engaged in learning complex legal concepts, and I enjoy spending time creating innovative ways to help my students learn and understand. One of the most satisfying parts of my job is getting to watch my students grow, learn, and excel into advocates for their clients and causes.
I also love to research and write, spending time exploring emerging intellectual property law issues, digging into complex and current intellectual property disputes, and identifying and trying to solve problems or issues in the law is so satisfying for me.
Is there IP in Montana?
Absolutely! Each one of us creates IP, whether we’re artists, writers, inventors, innovators, entrepreneurs, educators, employers or employees. For that reason, it’s important to understand what is protected by IP, who owns the IP that we create, and how not to tread on others’ IP rights. Montana is growing and is also attracting companies and employees from innovative and tech industries to settle in our beautiful state. It is important that every law student and lawyer in Montana have exposure to IP law in order to responsibly represent clients in our growing and innovative economy. This is why I co-created and co-organize an annual IP Day conference at the Law School to introduce more IP education and awareness into our state through speakers, panels and workshops on IP issues.
What is IP Day?
IP Day in Montana is a full-day conference held at the law school that is jointly organized by the Law School and the IP Law Section of the Montana Bar. Each year we choose a theme and organize speakers, panels, and workshops led by IP scholars and practitioners. In order to further my goal of introducing more IP to the public, the conference is free for the public to attend. We held our IP Day in the spring of 2017 and, since then, the conference has grown each year with new featured speakers, more attendees, an additional kick off-event the evening prior to the day, and a session for law students to share their research on emerging issues in intellectual property law.
Some of our past speakers have featured the Director of the Rocky Mountain Regional U.S. Patent and Trademark Office, senior counsel from Amazon and Microsoft, and law professor and author of a best-selling book on IP in the toy industry. IP Day has also been getting more attention and acknowledgement from the media and Montana’s elected officials, including support from Montana’s senators, governor and the mayor of Missoula.
This year’s IP Day in Montana was postponed, but it will focus on a hot topic issue: IP and Cultural Appropriation.
You mentioned that you love to research and write. What is your scholarship focus?
My scholarship focuses on copyright, trademark, art, and cultural heritage law and the ways those areas of the law intersect. My most recent works are inspired by current events and IP in society. For instance, I am currently writing an article, “Political Fair Use,” which examines the unauthorized use of a creator’s copyrighted work for political purposes under copyright’s fair use doctrine. I was motivated to write this article in response the almost-daily news about politicians using music at campaign rallies, candidates posting edited videos on twitter, or campaigns copying images onto flyers without the authorization of the works’ original creators. We recently saw a case like this in Montana involving a political candidate’s unauthorized use of a photograph in a political attack ad against his opponent without seeking the photographer’s permission. My article looks at how courts seem to implicitly adjust their analysis of copyright’s fair use factors when it comes to political uses of copyrighted work in order to accommodate political speech and First Amendment concerns.
Another recent article of mine, “Truth, Lies, and Copyright,” focuses on whether copyright law protects fake facts. Fake news may be trending right now, but fake news is not the only source of fake facts that we consume. We encounter fake facts every day in the historical or biographical books we read, the movies we watch, the maps we study, the telephone directories and dictionaries we reference, and the religious or spiritual guides we consult. While it is well-established that copyright does not protect facts because facts are discovered rather than created, fake facts are created and can often be as original and creative as fiction. My article looks at how copyright law should treat fake facts. My inspiration for this article was the media’s increasing attention on fake news and my discovery of copyright cases, including one as far back as 1913, involving authors’ attempts to assert copyright over fake facts including fake news.
My other published works include articles and book chapters on IP in food and food presentation, copyright and moral rights in graffiti, street art, and other public art, fair use and moral rights, IP rights in digitally co-authored Internet folklore such as the Slender Man, and other current and emerging issues in cultural and intellectual property law.