Faculty Directory

Cathay Y. N. Smith

Associate Professor of Law

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Personal Summary

Professor Smith teaches courses on intellectual property law, property law, and art and cultural property law.  Her scholarship focuses on copyright and trademark law, IP theory, art law, and cultural property and heritage law.  Outside of the Law School, Prof. Smith serves on the Board of Directors for the Missoula Art Museum (MAM).  Professor Smith co-created and co-organizes the annual IP Day in Montana, a full-day conference featuring speakers, panels, and workshops on intellectual property issues. 

Prior to joining the faculty at the Alexander Blewett III School of Law, Professor Smith taught at the University of Denver Sturm College of Law as a fellow, and practiced as an intellectual property attorney in Chicago with the law firm of Katten Muchin Rosenman LLP.  While in private practice, Professor Smith represented multinational technology, fashion, and entertainment and media corporations on intellectual property issues and disputes.  Her representative published decisions include Kinbook LLC v. Microsoft Corp., 866 F.Supp.2d 453 (E.D.Pa. 2012) (aff'd 2013 WL 116516 (3d Cir. 2013) (summary judgment in trademark infringement case); James Braddock v. Angelina Jolie, 103 U.S.P.Q.2d 1344 (N.D.Ill. 2012) (copyright case involving the movie In the Land of Blood and Honey); PODS Enterprises, Inc. v. ABF Freight System, Inc., 100 U.S.P.Q.2d 1708 (M.D.Fla. 2011) (trademark case involving PODS); Facebook Inc. v. Various Inc., 99 U.S.P.Q.2d 1300 (N.D.Cal. 2011) (trademark case involving FACEBOOK); Arcadia Group Brands Ltd. v. Studio Moderna SA, 99 U.S.P.Q.2d 1134 (T.T.A.B. January 6, 2011) (trademark case involving TOPSHOP); Penthouse Digital Media Productions, Inc. v. Cloudstreet Inc., 98 U.S.P.Q.2d 1496 (T.T.A.B. 2010) (immoral/scandalous trademark case); Roxbury Entertainment v. Penthouse Media Group, Inc., 669 F.Supp.2d 1170 (C.D.Cal. 2009) (trademark infringement case involving First Amendment defense and ROUTE 66 in the title of a film); Roxbury Entertainment v. Penthouse Media Group, Inc., 91 U.S.P.Q.2d 1173 (C.D.Cal. 2009); Bausch & Lomb Incorporated v. Karl Storz GmbH & Co. KG, 87 U.S.P.Q.2d 1526 (T.T.A.B. May 28, 2008).

Education

B.S. with Special Attainments in Commerce, Washington and Lee University

J.D., Loyola University Chicago School of Law

MSc. in Law, Anthropology and Society, The London School of Economics and Political Science

Courses Taught

*NEW Spring 2021* Race, Social Justice, and Intellectual Property: A Seminar

Advanced Issues in Intellectual Property Law

Art and Cultural Property Law

Introduction to Intellectual Property Law

Property Law

Selected Publications

Copyright Silencing, 106 Cornell Law Review Online __ (forthcoming 2020)

Political Fair Use, 61 William & Mary Law Review __ (forthcoming 2020)

Creative Destruction: Copyright's Fair Use Doctrine and the Moral Right of Integrity, 47 Pepperdine Law Review 601 (2020)

Truth, Lies, and Copyright, 20 Nevada Law Journal 201 (2019)

Beware the Slender Man: Intellectual Property and Internet Folklore, 70 Florida Law Review 601 (2018)

Copyright in Culinary Presentations, in Non-Conventional Copyright: Do New and Atypical Works Deserve Protection? (Enrico Bonadio & Nicola Lucchi eds. 128-149) (2018)

Squeeze Blood from Turnip(r): Abusing Trademark Law's Morality Provision in the TTAB, 65 UCLA Law Review Discourse 88 (2017)

Oral Tradition and The Kennewick Man, 126 Yale Law Journal Forum 216 (2016)

Community Rights to Public Art, 90 St. John's Law Review 369 (2016)

Food Art: Protecting Food Presentation Under U.S. Intellectual Property Law, 14 John Marshall Review of Intellectual Property Law 1 (2014)

Street Art: An Analysis Under U.S. Intellectual Property Law and Intellectual Property’s Negative Space Theory, 24 DePaul Journal of Art, Technology, and Intellectual Property Law 259 (2014)

Food Plating and Trade Dress: Can A Chef Claim Trademark Protection For A Signature Dish?, Cardozo Art & Entertainment Law Journal Blog, April 16, 2015

“Copyright Is For Losers©™”: Street Art Flourishes In Intellectual Property’s Negative Space, Cardozo Art & Entertainment Law Journal Blog, June 20, 2014

 

Selected Presentations

Street Art & the Law, AALS Section on Art Law (Jan. 2021) (invited)

Weaponizing Copyright, IP Mosiac Conference: The Arc is Hot! Using IP to Further Social Justice (Oct. 31, 2020)

Copyright Silencing, University of San Diego Law School, Guest Lecture in Corporate Innovation and Legal Policy Seminar (Oct. 14, 2020) (invited)

Political Fair Use, Interview with Prof. Saurabh Vishnubhakat on Ipse Dixit (Sept. 17, 2020) (invited)

Fair Use & the Right of Integrity, Interview with Prof. Brian Frye on Ipse Dixit (May 8, 2020)

Political Fair Use, University of Oklahoma College of Law, Faculty Lecture Series (March 5, 2020) (invited)

Political Fair Use, Santa Clara Law, WIPIP (Feb. 7, 2020)

Political Fair Use, BYU IP Colloquium (Nov. 14, 2019) (invited)

Moral Rights Debate, BYU Copyright & Trademark Symposium, Issues Facing Modern Media Industries (Oct. 10-11, 2019) (invited)

Balancing Author's Dignity with Free Expression, Center for Civil and Human Rights at the Gonzaga University School of Law, Furthering Social Justice in the Age of Intellectual Property (Sept. 20, 2019) (invited)

Political Fair Use, DePaul University School of Law, IPSC (Aug. 9, 2019)

Political Fair Use, George Washington University Law School, JIPSA (May 29, 2019)

Authorship Agreements with Prof. Cathay Smith, Blewett School of Law Pop-up Faculty Development Workshop (May 7, 2019)

Creative Destruction: Copyright's Fair Use Doctrine and the Moral Right of Integrity, George Washington University Law School, IP Speaker Series (March 27, 2019) (invited)

Collaborative Authorship in a Network Society, Santa Clara Law, Internet Law Works-in-Progress (March 2, 2019)

Nonconventional Copyrights, Columbia Law School, Kernochan Center for Law, Media and the Arts (Feb. 5, 2019) (invited)

Truth, Lies, and Copyright, William & Mary Law School, Junior IP Scholars Association Workshop (Jan. 25, 2019)

Fair Use and the Moral Right of Integrity, U.C. Berkeley School of Law, IP Scholars Conference (August 10, 2018)

Imagining a Fair Use Defense to VARA, Northwestern University School of Law, Junior IP Scholars Association Workshop (July 25, 2018)

International Intellectual Property Law, New York Law School, Summer London Program (June 4-14, 2018) (visiting faculty)

How Can IP Support Place-based Innovation?, University of Montana InnovateUM (April 25, 2018) (discussion facilitator)

Emerging IP Issues in Indian Country, University of Montana Blewett School of Law (April 11, 2018) (panel moderator)

Writing IP with Cathay Smith, Tulane Law School IP Seminar Guest Lecture Series (October 3, 2017) (invited)

Star Athletica v. Varsity Brands and Samsung v. Apple, Chicago-Kent College of Law, 8th Annual Supreme Court IP Review (September 28, 2017) (invited)

Defining the Boundaries of Factual Estoppel in Copyright Law, Cardozo Law School, Intellectual Property Scholars Conference (August 10, 2017)

Factual Estoppel, Gonzaga University School of Law, Junior IP Scholars Workshop (June 2-3, 2017)

IP in Internet Folklore, Case Western Reserve University School of Law, Who Owns Tradition? Reconceptualizing the Protection of Indigenous and Traditional Knowledge, Spangenberg Centre on Law, Technology and the Arts (Nov. 11, 2016) (invited)

The Making of a Monster, LSU Law Center, By Any Other's Name: A Conference on Law, Authorship and Appropriation (Oct. 29, 2016)

Art & Intellectual Property, Montana Art Gallery Directors Association (MAGDA) Annual Conference, Chico Hot Springs (Oct. 13, 2016) (invited)

Intellectual Property in Internet Folklore, Stanford Law School, Intellectual Property Scholars Conference (Aug. 11-12, 2016)

Trademarks, and Copyrights, and Patents, Oh My!, IP Workshop at the Blackstone LaunchPad at the University of Montana (April 12, 2016) (invited)

The Making of a Monster: Investigating Intellectual Property in Internet Folklore, University of Washington School of Law, Works-in-Progress Intellectual Property (Feb. 18-19, 2016)

Community Rights to Public Art as Community Cultural Heritage, Marquette University Law School, First Annual Mosaic Conference: Diverse Voices in Intellectual Property Law (Nov. 14-15, 2014)

Food Art and Intellectual Property Law, The John Marshall Law School Review of Intellectual Property 6th Annual Symposium, Art Meets Law: The Intersection of Art and Intellectual Property (Oct. 24, 2014)

Immoral Trademarks, American University Washington College of Law, 2014 Trademark Works in Progress (Oct. 10-11, 2014)

Affiliations

Elected Member, AALS IP Section Executive Committee (2020-2021)

Inaugural Member, Intellectual Property Law Section of the State Bar of Montana

Member, Missoula Art Museum Board of Directors

Member, Illinois State Bar, Colorado State Bar

Admitted to the U.S. Court of Appeals for the Federal Circuit, Ninth Circuit, and Third Circuit; U.S. District Court for the Northern District of Illinois

Honors / Awards

Howard W. and Jane S. Heman Memorial Law Faculty Award, 2020

Law School Merit Award, 2019

Boone Law Faculty Scholarship Award, 2017