Program on IP & Technology Law announces winners of 2021 writing competition

Author: Notre Dame Law School

Notre Dame Law School is proud to announce this year’s winners of the Law School’s Program on Intellectual Property & Technology Law Annual Writing Competition. Created to reward the excellent scholarship produced by Notre Dame Law students, the competition is open to student papers on topics related to intellectual property or technology law that were completed in 2020 or 2021. Program faculty evaluate the papers based on their originality, accurate application of law, and novelty and impact of argument.

This year two papers tied for first place: second-year law student Andraya Flor’s The Impact of Schrems II: Next Steps for U.S. Data Privacy Law and third-year law student Allison Lantero’s Picturing a Solution: Balancing Internet Sharing Culture with Creators’ Rights under Copyright Law.  “We were very impressed with the variety of topics and the quality of work submitted this year.” Jodi Clifford, Director of Notre Dame’s Intellectual Property and Entrepreneurship Clinic, stated. “Given the excellence of both Andraya and Allison’s papers, we were happy to be able to recognize them both.”

Andraya Flor’s paper made the case for a federal data privacy law in the United States. Flor identified gaps in approaches to privacy and data protection between the United States and the European Union under the General Data Protection Regulation. The Court of Justice for the European Union’s recent Schrems II decision invalidated the European Commission’s adequacy decision regarding the Privacy Shield framework but left the door open for parties to use standard contractual clauses to transfer data across borders. Flor argued that a federal data privacy law would alleviate “the burden on individual companies to assess the relative adequacy of data privacy laws” and would “create ‘adequacy’ for the United States as a whole.” Flor’s topic was very timely, as individual companies continue to face the compliance challenge of GDPR while “adequacy” is assessed at the national level. Indeed, that public/private divergence was one of the themes of the Program on IP & Technology Law’s virtual event with Twitter Dublin, The Future of Privacy, from Ireland to America. “Andraya’s paper focused on the important ongoing difficulty companies face as data protection regulations evolve in different parts of the world,” said Mark McKenna, Co-Director of the Program. “It presented a sophisticated analysis of one part of that problem and highlighted the ways the lack of federal privacy regulation in the US affects those trying to operate in both jurisdictions.” Upon learning that her paper tied for first in the competition, Andraya Flor shared, “I am honored to receive this award and have my paper recognized by the Program on IP and Technology Law at Notre Dame, and am thankful for the support I have received in pursuing my interest in data privacy and technology. I hope to continue to learn about and explore the intersection of law and technology in the future.

Allison Lantero’s paper Picturing a Solution examined how to protect the integrity of works of art and their continued attribution on Instagram as we live in a world marked by digital sharing. As works of art go online and sharing norms evolve on social media, artists can find more opportunities for collaboration while also experiencing copyright infringement. The broad license within Instagram’s Terms of Use further complicates the dichotomy between sharing on the platform for economic benefits and the exercise of an artist’s economic rights through copyright. Lantero analyzed various ways private ordering or public regulation could be used to provide increased protection for artists. As her advisor, Professor Stephen Yelderman explained, “This paper was a great read-- a very cogent analysis of a timely topic. Allison noticed an important IP issue in her everyday life and applied the knowledge and skills she’s gained in the program to suggest a way to fix it. That’s very rewarding to see.”  Upon learning that her paper tied for first in the competition, Allison Lantero shared, “This recognition means the world to me. As someone who enjoys both art and Instagram, I hope my paper will help spark a conversation about protecting the rights artists care about while still allowing them to reap the benefits of social media’s sharing culture.”

Third-year law student May Gunther’s paper The Blackface Commodity: A Legal Framework for Ownership Rights in Negative Cultural Heritage received an Honorable Mention. Confronting instances of blackface in fashion and the presence of antiblack imagery, Gunther explored how Black Americans might be given the right to control this “negative cultural heritage” to halt its use and dissemination. Exploring how current cultural heritage legal frameworks like the UNESCO Convention for the Safeguarding of Intangible Cultural Heritage and Native-American arts and crafts truth-in-advertising laws might provide a model, Gunther identified gaps in existing intellectual property laws. “Gunther’s paper deeply engaged with the negative space of intellectual property law in her analysis and the role that cultural heritage law might play in righting the wrong of blackface imagery. Her paper’s innovation lies in imagining how cultural heritage law may be a tool for communities who wish to raise awareness about painful examples of discrimination within our culture’s past in the face of cultural heritage law’s traditional role as a tool for preservation.”, Dr. Felicia Caponigri, Term Teaching Professor, Program Director of the Program on IP & Technology Law and a member of the evaluating committee, noted.   “The idea for this piece came from the Convention for the Safeguarding of the Intangible Cultural Heritage. The Convention's educational approach contrasts sharply with litigation-centered IP protection in the United States. Because U.S. IP law is ill-equipped to address harmful creative works like blackface imagery, I drew from the Convention to propose an education-based framework aimed at decreasing the prevalence of such imagery in popular culture.” May Gunther shared.