Student ID: 220059482

Essay Question
Introduction
This essay aims to examine the claim that contemporary intellectual property (IP) law
unjustifiably stifles creativity and innovation. While intellectual property provides artists and
inventors the tools to safeguard their concepts and works, enabling them to financially
benefit from their work, it is argued by many commentators that contemporary intellectual
property law, owing to its growing reliance on imposing stringent regulations, hampers
creativity and innovation instead of enabling it. In reference to this I contend that while
there are aspects of IP law that hinder creativity and innovation, a number of IP law
provisions encourage the same. This essay tries to critically investigate this assertion by
examining how IP legislation affects various fields and evaluating the trade-off between
safeguarding intellectual property rights and promoting an atmosphere that encourages
innovation and advancement. This essay starts by examining modern intellectual property
law and its justification. Further, it critically evaluates the impact of IP law on creativity and
innovation in various domains such as music, fashion and art by analysing examples of
different tools of IP.
Contemporary Intellectual Property and its Justification
In order to examine the effects of contemporary intellectual property law on creativity and
innovation it is essential to understand the meaning, types and purpose of intellectual
property. The term intellectual property refers to the creations of the human mind such as
inventions, literary and creative works, designs, symbols, names, images, etc. It consists of a
wide spectrum of intangible assets that are covered by intellectual property law. Intangible
assets are to those assets that do not have a physical form but yet have value and can be
legally owned and are protected by the law. Usually, these assets are the result of
intellectual or artistic endeavours. Some examples of intangible property are copyrights,
trademarks, patents, goodwill, etc. Intellectual property law refers to the legal framework
that grants exclusive rights to individuals or entities for their creations or inventions. IP law
consists of various kinds of intellectual property such as copyrights, trademarks, patents,
trade secrets and industrial design. It provides a system of rules and regulations that govern
the acquisition, use, and protection of intellectual property rights. Intellectual property law
aims to incentivize innovation and creativity by granting individuals or entities the sole
authority to manage and benefit from their ideas for a set amount of time.
Philosophical theories such as the utilitarian theory and Locke's theory of property are often
used to justify intellectual property. The aim of the utilitarian theory is to maximise society's
overall happiness or utility1. IP rights can be justified from a utilitarian standpoint by pointing

1
William Fisher, ‘Theories of Intellectual Property’ in Stephen Munzer, ed., New
Essays in the Legal and Political Theory of Property (Cambridge University Press,
2001).
to the possible advantages they provide to society as a whole. Granting exclusive rights
through IP motivate artists and innovators to put forth the time, money, and effort necessary
to produce fresh concepts and technologies2. This encourages invention and advances
technology, all of which benefit society by supporting economic growth and boosting
general wellbeing. Further, certain IP tools such as patents and copyrights require the
owners of the IP to make their inventions or creative work public. Doing this increases the
overall knowledge of the society and enables others to expand on previously developed
concepts, encouraging additional innovation. Lastly, IP tools such as trademarks ensuring the
quality and safety of products and services which can improve consumer welfare.
On the other hand, John Locke’s theory of property states that individuals have a natural
right to own the products of their labour. When creators invest their labour, skill, and
creativity into producing intellectual works or inventions, they establish a claim of ownership
over the results of their efforts. It further suggests that people can become the owners of
resources by combining their labour with those of others. In the instance of intellectual
property, innovators combine their creative work with ideas that are already in the public
domain to support their claim to exclusive control over the resulting work. It also
emphasizes that private property rights are in place to advance the general welfare. Giving
people IP rights rewards their creativity and invention, which promotes advancement,
economic growth, and social improvement.
In my opinion intellectual property can be justified on the basis of two main perspectives.
The first perspective is that IP rights encourage innovation. Intellectual property rights
provide creators and inventors an incentive to devote their time, energy, and resources to
create new concepts, things, or creative works. Intellectual property law allows them to
profit from their innovations by giving exclusive rights. This encourages people and
businesses to keep on coming with new ideas and inventions, hence supporting innovation
and technological advancement. The second perspective is that IP rights have a positive
impact on the economy. Granting IP rights to creators enables them to generate revenues
for their work, which in turn facilitates economic growth as it attracts investment and
promotes competition.
Critical Analysis of the Stifling Effects of Contemporary Intellectual Property Law
In order to critically analyse the stifling effects contemporary intellectual property law has
on creativity and innovation we need to examine these effects and their impact on various
domains.
Copyrights – Music Industry
Copyrights play a vital role in the music industry. They give creators exclusive control over
their unique musical compositions and shield them from unauthorised use, duplication,
distribution, and performance in public. The underlying goal of copyright legislation is to

2 Mark Lemley, ‘Faith-Based Intellectual Property’, UCLA Law Review 1330.

promote innovation by ensuring that creators can make money off of their works. By giving
artists a legal framework to manage and profit from their work, it supports a long-lasting
music business ecology. However, critics argue that these copyright laws can sometimes
hamper creativity by imposing limitations on artists and stifling innovation.
While copyrights give artists control over how their music is used and distributed, securing
the necessary licences or permits from copyright holders can be difficult and expensive
when it comes to copyright clearance for sampling. It might be difficult to remain creative
throughout this process, especially for new artists with little budgets. Artists may be
discouraged from experimenting with samples and incorporating pre-existing music into
their works if copyright laws are strictly enforced. Another consequence of copyright
protection is that it creates a fear of potential lawsuits in the minds of artists. This has a
serious impact on their creativity. The financial constraint and time consumption of potential
lawsuits affects the work of these artists. They shift their focus so much towards avoiding
lawsuits that they end up producing work which is completely different to what they had
imagined.
A prominent case that exemplifies the tension between copyrights and creativity in the
music industry is the legal dispute involving Ed Sheeran and Sam Chokri regarding Sheeran’s
song, ‘Shape of You’3. This case highlights the challenges artists face when navigating
copyright laws and their potential impact on creative freedom. In this case Sam Chokri
alleged that Ed Sheeran’s 2017 hit song ‘Shape of You’ bore similarities to his song ‘Oh Why’
released in 2015. He claimed that an eight bar post-chorus of Sheeran’s song infringed his
copyright and argued that the ‘Oh I’ phrase in Sheeran’s song was copied from the eight-bar
chorus of ‘Oh Why’, in which the phrase ‘Oh why’ is repeated to the tune of the first four
notes of the rising minor pentatonic scale, commencing on F# (the ‘Oh Why’ hook)4. The two
important factors considered while evaluating copyright infringement in this case were
whether the accused person had actually copied the work of the accuser, which required
access to the work of the accuser. And secondly, if the accused indeed had copied the said
work, did he copy a substantial part of the original work. Sam pleaded that his work was
published online and that Sheeran had access to it but it was held that even though Sam’s
song was available online it is not enough to prove the Sheeran had accessed the song as the
amount of music available online is infinite and it is not possible for everyone to have heard
every song on the internet5. The discussion on access to work is very crucial in determining
the extent of the impact of contemporary intellectual property laws on creativity in the
music industry. The ease of publishing music has increased tenfold due to the advent of
internet. Same ease has been created in consuming this work. The argument on access
negatively impacts the creativity of artists as they make their approach of making new music
more and more cautious so that in the future, they are not a part of a lawsuit where it is
alleged that they have infringed someone’s copyright because they had access to the said
work. The second part of this case which needs to be evaluated is whether the allegedly

3
Sheeran &Ors v Chokri & Ors [2022] EWHC 187 (Ch), 6 April 2022
4
Journal of Intellectual Property Law & Practice, 2022, Vol. 17, No. 7, Page 544
5
Ibid page 545
copied can be considered as the literary work of Sam Chokri or it is just a generic
combination of notes which cannot essentially be considered as the intellectual property of
any individual. In reference to this, the judge presiding over this case, Justice Zacaroli, stated
that none of the elements of similarity upon which Chokri relied acquired originality on ‘Oh
Why’ as a musical work. In particular, the use of the rising minor pentatonic scale is a generic
and common place building block in many musical genres. The fact that each note of the
scale is repeated did not alter his conclusion. The use of a vocal chant and its harmonization
with low and high octaves are equally generic and common place ideas. However, the
combination of these features did sufficiently represent the intellectual creativity of Chokri.
Lastly, although there was no claim to infringement of the lyrics, the setting of music to a
distinct vocal sound (humming, ‘ahh’ and ‘ooh’) could be considered part of the
orchestration of a musical work6. I agree with Justice Zacaroli’s assessment in this regard.
With there being limited notes in music, there is bound to be similarities in the permutations
and combinations of these by two individuals. This does not necessarily indicate that one
has copied the others work, it is a very likely coincidence. In a recent statement Ed Sheeran
claimed that he is contemplating quitting music due to the toll of the lawsuits regarding
copyright infringement on his creativity and mental health7. I completely agree and
sympathise with Sheeran’s statement. Fighting copyright infringement lawsuits is extremely
time consuming and expensive and it can potentially have a negative impact on one’s
creativity. This is in turn acts a hindrance in terms of innovation in music.
The following evaluation indicated that even though the intended purpose of copyrights is to
protect the works of artists and thereby incentivize creativity, it can sometimes hamper
creativity and innovation. Strict copyright clearance processes and the fear of lawsuits can
limit artists' ability to experiment with samples or draw inspiration from existing works,
hindering their creative process. This can result in a more cautious and conservative
approach to music creation, as artists may avoid incorporating elements from other songs to
avoid potential infringement. Furthermore, copyright restrictions on derivative works and
transformative use can impose limitations on artistic exploration and collaboration. To strike
a balance between copyright protection and creative freedom, there is a need for clearer
guidelines and interpretations of copyright law.
Another case that needs to be evaluated while discussing the extent of stifling of creativity
and innovations by copyrights in the music industry is the case between Pharrell Williams,
Robin Thicke, and the estate of Marvin Gaye regarding the song "Blurred Lines"8. In this case,
Marvin Gaye's estate claimed that "Blurred Lines" violated the copyright of Gaye's song "Got
to Give It Up." Instead of precisely replicating specific musical components, the plaintiffs
claimed that "Blurred Lines" copied the "feel" and "vibe" of Gaye's song. The argument
centred on how copyright law should be applied and whether the individual notes and
melodies were infringed upon or the general mood and inspiration. The decision of this case

6
Journal of Intellectual Property Law & Practice, 2022, Vol. 17, No. 7, Page 545
7
The Independent, ‘Ed Sheeran threatens to quit music if he loses copyright trial’, May 2023
8
Williams v. Gaye, 895 F.3d 1106 (2018)
resulted in the favour of Gaye’s estate and Williams and Thicke were ordered to pay a
substantial amount in damages. This case raised concerns among artists regarding the
potential negative effect on creativity caused by strict copyright enforcement. The subjective
nature of copyright infringement claims is one of the main criticisms raised by this case. The
decision showed that copyright can cover things like the general "feel" or "groove" of a song
in addition to explicit duplication of melodies or words. This in turn will make artists fear
that they maybe unintentionally infringing upon copyrighted material, thereby discouraging
them from taking risks and exploring new artistic avenues. Further, this case also indicates
the potential problems that will result due to the increase of lawsuits in the music industry.
Fear of lawsuits can lead artists to adopt a more cautious approach to their creative work,
avoiding potential similarities that may be alleged as copyright infringement. This will
ultimately hinder artistic exploration and limit the diversity of musical expressions.
Patents and Innovation
Patents are legal instruments that grant inventors exclusive rights over their inventions for a
specified duration, usually 20 years from the filing date of the patent application9. It
essentially is a form of intellectual property protection that allows inventors to prevent
others from using, making, selling, or importing their invention without their permission for
a limited period. Patents play a crucial role in incentivizing innovation and creativity amongst
inventors. The legislation regarding patents grants the inventor exclusive rights to their
invention, giving them the legal authority to control and commercially exploit their creation.
It enables the patent owners to financially gain from their inventions by licensing the use of
their invention. Not only does the this reward the inventors for their work it also creates a
sense of security for them that their work is not being unfairly used by others. The acts as a
major incentive for potential inventors to come up with an innovate new ideas and
inventions. Further, given the fact that patents are protected by law, they are considered as
potentially safer investments by investors and thus they invest more in research that is
protected by patents knowing that they will be able to recoup their investment. This directly
leads to an increase in innovation as the due the work of inventors being patented; they will
now have more resources and finances to facilitate their research and inventions thereby
advancing the society. Additionally, since patents require a disclosure of the invention and its
technical information, it adds to the existing pool of knowledge and thereby encourages and
enables inventors to come up with new innovations building up on the information that has
made available to them. Lastly, since a patent is granted to inventions that meet a certain
novelty and inventive criteria it encourages potential inventors to come up with unique and
impactful inventions and ideas.
In spite of all of this a number of critics believe that patents actually do not contribute to
innovation and creativity but rather create hinderances or stifle creativity and innovation.
The number of patents being filed is often considered as a yardstick of measuring

9
Richard Posner, ‘Do We Have Too Many Intellectual Property Rights’? (2006) 9
Marquette Intellectual Property Law Review 173
innovation10. While the number of patents granted has substantially increased in the recent
times it is important to know that a number of these patents granted are for thousands of
seemingly useless inventions like bird diapers, a beer keg hat, and an “animal toy” that can
be made of wood and looks very much like a stick that might be thrown for a dog to fetch. As
an example, Amazon has received patents for a flying warehouse, an underwater
warehouse, a delivery airship, and underground delivery tunnels. These are examples of
patents that are awarded for things that do not yet exist and may never do so11. Granting of
such patents cannot be used as an indicator to measure innovation. Additionally, it is further
seen that since the filing of a patent requires the disclosure of the invention and the relevant
technical information, the competitors of the inventor use this information to further
advance their work and gain an advantage over the inventor. This discourages the inventors
from filing patents thereby negatively influencing innovation and the knowledge pool of the
society. Prominent businessman and CEO of Tesla and SpaceX, Elon Musk also agrees with
this assertion and has said that his organization, SpaceX essentially has no patents as their
primary long-term competition is in China. If they published patents, it would be detrimental
for them as the Chinese would just use them as a recipe book and build upon it to gain an
advantage over SpaceX12. Conversely, patents can grant inventors a monopoly over their
inventions, restricting competition and hindering the development of alternative solutions.
This exclusivity can impede innovation by discouraging others from pursuing similar or
related inventions, limiting the diversity of ideas and potential advancements. Furthermore,
a number of patent holders commonly referred to as ‘patent trolls’ often file patents without
ever having the intention to actually make an invention using the subject matter patented.
They usually file for patents of small processes that might be common for a lot of inventors
in their work. Their sole aim is to file patent infringement lawsuits against inventors and
make monetary gains. This negatively affects innovation amongst inventors as they become
more cautious in their work worrying that they may be sued for patent infringement. Lastly,
in the recent years the cost of filing a patent has increased considerably. This increase of
price has in turn discouraged potential inventors for coming up with new ideas and filing for
patents.
The following evaluation indicates that the impact of patents on innovation is a complex
issue and that there are arguments for and against the usefulness of patents. Patents can
encourage innovation and economic growth by offering inventors incentives, protection, and
the chance to recoup their efforts. They promote knowledge sharing, research and
development, and draw funding for technological developments. Additionally, patents are
essential for defending intellectual property rights and giving creators the power to manage
and monetize their innovations. Patents do, however, come with difficulties and potential
downsides. They can inhibit competition, obstruct the creation of substitute alternatives,
and slow down innovation. Patent disputes and the activities of patent trolls can divert funds

10
Gary N Smith, Jeffrey Funk, 'Why We Need to Stop Relying on Patents to Measure
Innovation', Promarket (March 19,2021)

11
Ibid, para 4
12
Ibid. para 6
away from useful innovation. Furthermore, smaller inventors and businesses may find it
difficult to come up with new inventions and concepts due to the high expenses associated
with patent filing, licencing, and enforcement.

Trademarks and Creativity

Trademark is an essential IP tool that helps businesses to safeguard their intellectual
property and keep rivals from copying their concepts or mislead customers. They enable
businesses to develop a distinctive character that sets their goods and services apart from
those of their rivals and increases customer brand recognition and loyalty. The main aim of
trademarks is to garner innovation and creativity by offering legal protection for creative
ideas and encouraging companies to invest in creating new goods, services, and brands.
However, it is argued by many critics that instead of promoting creativity and innovation
trademarks create hinderances for the same. An assessment of the extent of these
hinderances needs to made.
Trademarks provides legal protection for unique and distinct ideas. They allow creators to
secure exclusive rights to use a particular name, symbol, or design thereby encouraging
entrepreneurs and businesses to invest in developing new products, services, and brands.
This can promote competition, increase consumer choice, and foster economic growth.
Additionally, businesses may strengthen and develop their brands with the use of
trademarks. Trademarks can help businesses improve their market share and foster client
loyalty by giving them a unique identity that sets them apart from rivals. Businesses can
then use these resources to make investments in more innovation and development. An
excellent example of this is the company, Carolina Herrera. They are a company that sell
perfume in a bottle that is shaped like a woman’s shoe. This unique identification has set
them apart from the rest of the market and now consumers can recognize their brand by
just looking at the shape of their bottle. This has helped them build consumer loyalty and
thus capture a larger market share. Seeing the potential benefits of a successful trademark
acts an incentive for others to create a unique trademark of their own, thereby giving rise to
new ideas and innovation. Further trademarks can help consumers identify products and
services that they trust and rely on. When a business has a strong trademark, consumers are
more likely to associate it with quality and reliability. This can encourage businesses to
continue to invest in improving their products and services and promoting innovation.
Another important benefit of trademarks in relation to fostering creativity is that trademarks
can act as a source of inspiration for businesses, professionals, writers, and artists. The
challenge of creating a unique and memorable trademark can encourage them to explore
new ideas and push the boundaries of their creative skills. An examination of the case
between Nike and Bape serves as a crucial study in assessing the positive impact of the
effects of contemporary trademark laws on creativity and innovation13. In this particular case

13
Nike Inc v USAPE LLC, Case No. 1:23-cv-00660, 25 January 2023
Nike had accused Bape of infringing their trademarks by copying the shapes of their iconic
shoes such as the ‘Air Force’, ‘Dunk’ and the ‘Air Jordan’. The eventual decision of the court
had favoured Nike14. There are a number of aspects in this case that indicate the positive
impact trademarks have on creativity and innovation. The facts illustrated that Nike through
their work were successfully able to create trademarks that have become extremely popular
amongst consumers and that consumers now associate the brand, ‘Nike’ with these
trademarks. Seeing the level of success of Nike that customers now even recognize their
brand on the basis of the shape of the shoe and the potential benefits derived from the
creation of a trademark of this magnitude can act a huge incentive for people to come up
with new and interesting ideas and concepts for trademarks thereby giving rise to more
innovation and an increase in choice for consumers. Further, due to the success of their
trademark Nike were able to generate more revenue and this additional revenue could be
used by Nike to support new innovations and ideas. Additionally, it can be inferred that
because Nike had the availability of the protection of their registered trademark, Bape could
not copy their unique identification and will have to come up something of their own in
order to compete in the market. This shows that since trademark protection is available to
users the others have no other option but innovate and come up with a unique identification
of their own.
While trademarks are geared towards incentivizing creativity and innovation certain aspects
of trademarks also lead to stifling of creativity and innovation. Trademarks prohibit the use
of specific words, symbols, or designs which can reduce competition and inhibit innovation.
If a company already has a trademark for a certain name or logo, for instance, other
companies may be prohibited from using the same name or emblem, even if they have a
unique or inventive idea for a product or service that would profit from that name or logo.
This may reduce consumer choice and impede competition. Further, trademarks may
encourage imitation, in which companies follow the lead of popular brands rather than
developing their own concepts. A company might be persuaded to create a similar
trademark or brand if they see that a particular trademark or brand is profitable in an effort
to share in that success. This may result in a lack of creativity and originality in the
marketplace. Additionally, the use of trademarks can be used to censor artistic and free
speech expression for inspirational or derivate works. For instance, if a trademark holder
believes that a literary or artistic creation is exploiting their mark in a way that is detrimental
to their brand, they may try to stop it from being published or shown. This may inhibit
creativity and restrict the scope of crucial social and cultural topics that authors and artists
can investigate. An examination of the case between Jack Daniels and VIP Products serves as
a crucial study in assessing the stifling of the effects of contemporary trademark laws on
creativity and innovation15. The facts of the case indicate that VIP Products makes dog toys
in the form of different alcoholic beverages, including one that resembles a bottle of Jack
Daniels whisky. A label on the bottle-shaped toy read "Bad Spaniels" and "Trademark and
Copyright VIP Products." In the lawsuit filed, Jack Daniels claimed that the bottle-shaped toy

14
Ibid.
15
Jack Daniel’s Properties, Inc. v. VIP Products LLC (US Supreme Court Docket No: 22-148), March 18 2022
and its label violated its trademark and amounted to trademark dilution16. While it makes
sense that Jack Daniels would wish to safeguard its brand and avoid customer
misunderstanding, this legal action may have a detrimental effect on creativity and
innovation within the pet toy business. Jack Daniels' legal action against VIP Products serves
as a warning to other businesses that they may be subject to legal action if they develop
goods that are similar to or make reference to a trademarked brand. This can stifle creativity
and innovation in the sector since businesses may be unwilling to develop goods that could
be interpreted as violating a trademark. As a result, consumers may only have access to a
smaller selection of goods, and the industry may be prevented from developing fresh and
original concepts. Furthermore, in this situation, the label on the toy made it quite evident
that it was a product of VIP Products and not a Jack Daniels-branded item. The label also
contained amusing and obviously satirical text that might be seen as a kind of artistic
expression or free speech. Jack Daniels' legal action against VIP Products could be
interpreted as an effort to limit this type of expression, which could have a detrimental
effect on innovation and creativity in the larger cultural context.
In my opinion trademarks can influence creativity and innovation both favourably and
unfavourably. Positively, trademarks assist in safeguarding the financial commitment that
businesses make to their brands and intellectual property. By offering businesses a safe
environment to create new concepts and products without worrying about intellectual
property theft or violation, this protection promotes innovation and creativity. Furthermore,
the reputation and credibility attached to well-known trademarks can act as a significant
marketing weapon, encouraging both clients and rivals to push the limits of their own
innovation. However, it is impossible to ignore how trademarks negatively affect innovation
and originality. Trademarks can limit the ability of artists, designers, and other creators to
reference or draw inspiration from existing brands and ideas, which can discourage
innovation and creativity. Additionally, the threat of legal action against businesses who
produce goods that make use of or resemble registered trademarks can deter competition
and reduce the range of goods that are offered to consumers.

16
Ibid.
Conclusion
In conclusion the impact of contemporary intellectual property law on stifling creativity and
innovation is a complex issue and there are both arguments for and against this. In my
opinion, intellectual property law does to a certain extent hinder creativity and innovation
but at the same time a number of aspects intellectual property law also encourage the
same. I believe that even though contemporary intellectual property law gives rise to certain
negative effects regarding creativity and innovation, the positives that arise via the
intellectual property laws outweigh the negatives. Overall, it is evident that a fine line must
be drawn between rewarding creativity and invention and safeguarding the rights of
inventors and artists. Even while modern IP legislation has certain drawbacks and critics, it is
nevertheless a vital instrument for advancing development across a range of domains.
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