Physical Props for Teaching the IP Survey Course

By Eric Goldman

[Note: this post is intended for readers who teach the IP Survey course or related courses. If that’s not you, you might want to skip this post.]

I’m sure many of you are aware of the Georgetown database of electronic artifacts maintained by Rebecca Tushnet. If you haven’t seen it and you teach in the IP/Internet/Advertising Law areas, email her for the login credentials. The Georgetown database is a goldmine for instructors, and I use it frequently (and contribute to it too–pay it forward!). See Rebecca’s article explaining the Georgetown database and the value of audiovisual props.

However, I’ve never seen the complementary discussion about physical props we might use to aid our teaching. I use a bunch, and every year students favorably remark about the physical props in my student evaluations. In particular, I suspect there’s something about the physical tangibility of the prop that facilitates student engagement and memory. (There’s probably studies on this point…if you send me citations, I’ll add the links).

This post is designed to give you some ideas of physical props I use–or wish I could find–to supplement my PPT deck/electronic props. It’s keyed to the Merges/Menell/Lemley book, which I’ve been using for nearly a decade (although I’m exasperated by the 6th edition’s $193 list price), but many of you are teaching some of these cases even if you’re using a different book. Whatever book you’re using, I’m also happy to share my PPT deck (containing my collection of electronic props) and course notes with you as well. Just email me.

Patents

* For non-obviousness, I give the example of Reese’s Peanut Butter Cups and the innovation of putting chocolate and peanut butter together. I show one of the 1980s TV commercials (this one)–my generation can’t forget the classic dialogue: “You got peanut butter on my chocolate! You got chocolate in my peanut butter!” I then distribute Reese’s Peanut Butter Cups, which are usually on sale as Halloween candy by the time I get to this topic. I’ve discovered that my foreign students often are unfamiliar with the candy, which isn’t offered in their home country, so it’s a double pedagogical moment for them–they learn the joys of American trans-fats as well as get a lesson on non-obviousness.

* For the Dembiczak case, I bought an Allied 3 foot tall “Funkins” on eBay. Unfortunately, I haven’t been able to find the “Jack Sak.” I’d appreciate any help finding that (I tell a couple of borderline ribald jokes riffing on the Jack Sak name).

* For the Larami case, I bought both a SuperSoaker 50 (the one depicted in the book) and a SuperSoaker 20 on eBay. Used SuperSoakers are surprisingly expensive. Apparently they are retro-cool among a crowd of water-fight enthusiasts, so it took me a year or so to find one at a decent price. When I teach the case, I fill them up with water and am therefore well-armed to provide liquid feedback about how I feel when students are Facebooking in class or are not prepared for class. (Just kidding…a little). FWIW, I’ve never been able to find the plaintiff Amron/Talk to Me lighted water guns. All leads appreciated!

Copyrights

* For the Feist case, I show a photo of a white pages book. As painful as it is to realize this, many younger students never used a white pages book. Going forward, I’d like to bring in a physical version of a white pages book. If you’re around SCU and have a spare, I’d welcome the trash transfer.

* For Baker v. Selden, the casebook’s diagram is a little confusing. Fortunately, with some help from my research librarian, we have obtained a scan of the entire book. It’s posted in the Georgetown database, and I also posted it to Scribd. I would LOVE to have a hard copy original of this book!!! I wonder if they ever show up at auction.

* Regarding CCNV v. Reid, the opinion indicates the possibility that miniature versions of the sculpture might have been prepared. I’ve never seen any other reference to one. If mini-sculptures were prepared, I’d love to have one! It’s such a shame the original sculpture isn’t on display anywhere.

* For Aalmuhammed v. Lee, I circulate a copy of the Malcolm X DVD.

* For Nicols v. Universal Pictures, I have a number of props associated with Abie’s Irish Rose, including:

– a 1927 novelization/book

– 1923 programs from the play (from the Republic Theater on Broadway and the Colonial Theater in Cleveland)

– a cardboard fan that was distributed as marketing for the play

The play was such a huge hit that props were surprisingly plentiful (and several others are available that I didn’t buy). Each of these items cost less than $10 on eBay. Search for “Abie’s Irish Rose” in eBay.

* For Steinberg v. Columbia Pictures, I have full-sized posters both for the Moscow on the Hudson movie and the New Yorker cover. The Moscow on the Hudson poster wasn’t too expensive, but it took me years to find a large poster of Steinberg’s cover that was affordable. Given the huge demand for it, I can’t believe that poster is out-of-print! I ended up spending $65 to get mine (unframed but including shipping); but that’s only after I got outbid on eBay probably a dozen times.

* For Anderson v. Stallone, I circulate a copy of the Rocky IV DVD.

* For Sony v. Universal City, it occurred to me last year that some of my younger students probably missed the VCR era. Undoubtedly, that cohort of students will only grow in number over the years. As a result, I invested in buying a 1970s-era Sony Betamax on eBay. It is massive! I will have to wheel it down to the classroom on a cart. However, I decided that showing the actual item, and not just a photo of it, would be worth the investment. The VCR cost only $10 on eBay…plus $30 shipping! You might be able to find surplus VCRs even easier. Indeed, after I bought the Betamax, a student told me his parents had a surplus Betamax from the early 1980s that was just taking up space in their house, so he brought me that for free. Which means I now have two massive VCRs in my office.

* For Harper & Row v. Nation, I bought a copy of A Time to Heal from Half.com for a couple dollars. I know you’ll be shocked, but demand for the book is weaker than supply, so the book was just pennies plus shipping. I tell students to pick a number and then I start reading the book from that page number. The randomly selected prose is always so incredibly dry and uninteresting that it really punctuates that most readers couldn’t care less about most of the book. (Frankly, it reads a little like Ford blogged his life, right down to what he had for breakfast, so the book has not aged well). I like that the book cover shows Ford smoking a pipe–can you imagine a modern biography showing the book’s subject consuming tobacco products? I also circulate a printout of the Nation article, which was included in the opinion. I’ve not taken the time to pull a copy of the original issue and photocopy the article but I should. Eventually I will find and buy the entire Nation issue containing the article.

* For American Geophysical v. Texaco, I printed out a random article from the Journal of Catalysis and circulate that.

* For Campbell v. Acuff-Rose, I have the original vinyl single of “Oh Pretty Woman” and a CD of 2 Live Crew’s “As Clean As They Want to Be” album. I couldn’t find a vinyl version of the 2 Live Crew album, nor could I find the “Pretty Woman” song as a single. I assume neither were issued.

Trademarks

* For the Qualitex case, my colleague Tyler has a full-sized ironing board in the green-gold color that I borrow. I haven’t bought my own. Eric Johnson sent out swatches of the color as part of his Museum of IP, so I also have that.

* For the Zatarain’s case, I have a box of Zatarain’s seasoned Fish-Fri that I bought in Milwaukee (so it’s getting a little ripe). It’s easy enough to find these boxes in the grocery store or online. However, I haven’t found a package of the Oak Grove Smokehouse seasoning.

* For the Zazu case, I have tried to find any of L’Oreal’s hair cosmetics offering. Any leads appreciated!

* For the Louis Vuitton v. Haute Diggity Dog case, I have Chewy Vuitons in both the LV/CV design (in white) and the brown cherry design. They each cost about $20 online.

* I teach the Pillsbury v. Screw Magazine case as a supplement to the casebook. The Georgetown database has a scan of the image, which I show in class with strategic redactions (even showing that may be a questionable decision). I don’t have the fortitude to buy an original version of the magazine issue. I also have plastic Poppin’ Fresh and Poppie Fresh dolls. I also love calling students’ attention to the wonderful 2000 Salon article, The Inner Doughboy.

* For the Brooklyn Dodgers abandonment case, I’ve had little luck finding any physical or electronic evidence of the restaurant. All leads appreciated!

* For the KP Permanent Markup case, I’ve not had any luck buying the original items at issue. Thoughts?

* For the Mattel v. MCA case, I circulate a CD of the Barbie Girl single. You better believe it that I play the song for students. IN ITS ENTIRETY.

Publicity Rights

* Although this isn’t a physical prop, for the Midler case, I play Bette Midler’s song and also show the original TV commercial, a classic slice of 1980s culture in the worst sense of the word.

* For the Saderup case, I would love to purchase one of Saderup’s Three Stooges prints but haven’t been able to find it. All leads appreciated!

If you are teaching the IP Survey course (especially from the Merges/Menell/Lemley book) and use physical props that I didn’t mention, please email me the suggestions.

While I generally discourage students from giving gifts to their professors, any current or former student who can help me find some of the referenced props would bring a huge smile to my face!

UPDATE:

From Rebecca: For trademarks, she uses “scented yarn; perfume and near-lookalike knockoff “inspired by” the original, with scent cards too; Bad Frog beer bottle; Cocaine energy drink; Blow energy powder; Chewy Vuiton; Buttwiper dog toys…” For copyrights, she uses “The New Yorker/Moscow on the Hudson posters; spoons from a case about copyrightability of measuring spoons shaped like hearts at the front and arrowheads at the back; Winchester buckle from the buckle separability case (expensive!); Jar shaped like apple, candle shaped like apple, actual apple (separability).”

From Emily Michiko Morris: “For illustrating undue experimentation with regard to both non-obviousness and enablement in Patent Law, I often use combination locks. Simple (one or two digit entry) combination locks for “rote experimentation,” and the dial-type combination locks of “undue” experimentation. The idea is for students to ask themselves how long it would take them to “reverse engineer” the correct combination for the lock in each case.”

Emily also reminded me of the Museum of Intellectual Property, curated by Eric Johnson. It’s an impressive collection.