The University of Western Australia

UWA Staff Profile

Ipsum Lorem

Jani McCutcheon

Ms Jani McCutcheon

Senior Lecturer
UWA Law School

Contact details
Address
UWA Law School
The University of Western Australia (M253)
35 Stirling Highway
CRAWLEY WA 6009
Australia
Phone
+61 8 6488 2964
Fax
+61 8 6488 1045
Email
jani.mccutcheon@uwa.edu.au
Qualifications
BA LLB Monash, LLM W.Aust.
Biography
Jani teaches and researches in the areas of intellectual property law and is the Director of the Law School's Law and Society program. Her research focuses on copyright and moral rights, particularly in the context of literature and visual art. Jani obtained her LLB and a BA (Hons) in English Literature from Monash University, and a LLM by research from UWA which focused on the potential registration of non-traditional trade marks. Before joining UWA in 1999, she worked as a solicitor for Freehill, Hollingdale and Page, and a Legal Research Officer for a Member of the WA Legislative Assembly. Since joining UWA, Jani has from time to time worked part-time as a solicitor and as a consultant to specialist intellectual property law firms. She has published internationally in numerous peer-reviewed journals and presented her work at conferences and workshops in many countries. She has been a visiting scholar at Berkeley Law school.
Key research
- Intellectual Property Law
- literary characters and intellectual property law
- copyright
- moral rights
- trade marks
- literature and the law
- art and the law
- Internet Law
Publications
Jani has published a number of journal articles and book chapters:

Publications 2017

McCutcheon, JL: 'Shape Shifters: Searching For the Copyright Work in Kinetic Living Art’[Journal of the Copyright Society of the USA, forthcoming September 2017]

Publications 2016

McCutcheon, JL, ‘Dead Loss: Damages for Posthumous Breach of the Moral Right of Integrity’ (2016) 40(1) Melbourne University Law Review

McCutcheon, JL and Holloway, S, ‘Whose Fair Dealing? Third Party Reliance on the Fair Dealing Exception for Parody or Satire” (2016) 27:2 Australian Intellectual Property Journal, 54-73

Publications 2015


McCutcheon, JL , ‘Designs, Parody and Artistic Expression – a Comparative Perspective of Plesner v Louis Vuitton’, 2015 41(1) Monash University Law Review, 192-217

McCutcheon, JL, ‘Death Rights – Legal Personal Representatives of Deceased Authors and the Posthumous Exercise of Moral Rights’ (2015) 3 Intellectual Property Quarterly 242-266.

Publications 2014

McCutcheon, JL, ‘The Honour of the Dead - The Moral Right of Integrity Post-Mortem’, 2014 (42) Federal Law Review 485-518.

Publications 2013

McCutcheon, J.L., “Curing The Authorless Void - Protecting Computer-Generated Works Following IceTV and Phone Directories”, (2013) 37(1) Melbourne University Law Review, 46-102.

2013
McCutcheon, J.L., “The Vanishing Author In Computer-Generated Works - A Critical Analysis of Recent Australian Case Law” (2012) 36(3) Melbourne University Law Review, 915-969.

McCutcheon, J.L. “Perez v Fernandez – Australia’s First Decision on the Moral Right of Integrity” (2013) 23(3) Australian Intellectual Property Journal 174-186.

2011

McCutcheon, J.L. ‘When Sweat Turns to Ice: The Originality Threshold for Compilations following IceTV and Phone Directories’ Australian Intellectual Property Journal, 22:2, pp 87-101 (2011)

2009

McCutcheon, J.L. ‘Too many stitches in time? The Polo Lauren case, non-infringing accessories and the copyright/design overlap defence’ Australian Intellectual Property Journal, 20:1 pp 39-52 (2009)

2008

McCutcheon, J.L. ‘The new defence of parody or satire under Australian copyright law’, Intellectual Property Quarterly, pending (2008)

2007

McCutcheon, J.L. ‘Property in Literary Characters: Protection under Australian Copyright Law’ European Intellectual Property Review 29: 4 pp 140-151 (2007) (this article is the same article as ‘Copyright Protection for Fictional Literary Characters’ Intellectual Property Forum 67 (2006), pp 14-28 (winner of IPSANZ Essay prize 2006).)

2006

McCutcheon, J.L. ‘Search and Ye Shall Infringe? Current issues Concerning the Use and Abuse of Trade Marks in Cyberspace’ Australian Intellectual Property Journal, l7:2, pp 99-113 (2006)

McCutcheon, J.L. ‘Searching for Trouble: When Search Terms and Trade Marks Collide’ Published Proceedings of AusWeb 06, the Australasian World Wide Web Conference (2006).

McCutcheon, J.L. ‘Copyright Protection for Fictional Literary Characters’ Intellectual Property Forum 67 (2006), pp 14-28 (winner of IPSANZ Essay prize 2006).


2004

McCutcheon, J.L. ‘How Many colours in the Rainbow? The Registration of Colour per se under Australian Trade Mark Law’ European Intellectual Property Review 26:1, pp 27-33 (2004)

McCutcheon, J.L. ‘Monopolised Product Shapes and Factual Distinctiveness Under s 41(6) of the Trade Marks Act 1995 (Cth)’ Australian Intellectual Property Journal, l5:1, pp 18-33 (2004)

McCutcheon, J.L. ‘The Registration of Sounds and Scents Under Australian Trade Mark Law’, Intellectual Property Quarterly, 2, pp 138-172 (2004)

2002
McCutcheon, J.L. ‘Rectification of the Trade Marks Register on Grounds Existing at the Time of Application to Rectify - an Analysis of Sections 88(2)(a) and (c) and 89 of the Trade Marks Act 1995 (Cth)’, Australian Intellectual Property Journal, 13:4, pp 199-217 (2002)
Roles, responsibilities and expertise
Jani Director, Law and Society and is an elected Member of the UWA Academic Board, a member of the Law School Executive, Teaching and Learning Committee and Honours and Advanced Legal Research Committee. She is a co-director, Applied Intellectual Property Research Network, and a Member of the Law School's Law and Society Research Network.
Future research
Jani will be writing a book, to be published by Edward Elgar in 2019, on Literary Characters in Intellectual Property Law.

Jani also has a number of projects and future papers she will undertake, including:

- Art in Law in Art (edited volume)

- Copyright and Illustrated Fiction in the 19th Century
- Emotions, Copyright and Literary Appropriation in the 18th C
- Emotions, Remedies, and Intellectual Property Law (with Robyn Carroll)
- The Moral of the Story: Literary Appropriation, the Authorial Message and Harm in Moral Rights
- Literary Appropriation, the Adaptation Right and Transformative Use
- Do Australian Authors Have a Sequel Right?
- Bio Art and intellectual property law


Languages
some proficiency in French
Memberships
* Intellectual Property Society of Australia and New Zealand
* Law Society of Western Australia
* History of Law and Emotions Research Cluster, ARC Centre of Excellence for the History of Emotions
* Copyright Society of Australia
* International Literary and Artistic Association (Association Littéraire Et Artistique Internationale)
* International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP)
* Society for Literature, Science, and the Arts
Honours and awards
Intellectual Property Society of Australia and New Zealand Essay Prize 2006
Previous positions
Solicitor, Freehill Hollingdae and Page
Legal Research Officer for a Member of the WA Legislative Assembly
Teaching
Jani teaches Intellectual Property Law in the LLB and at post graduate level in the JD and LLM, Marketing Management and the Law (an undergraduate unit offered in the Business Law Major), and Creative Expression and the Law, an undergraduate unit offered in the Law and Society Major.
Current external positions
Member, Law Society of Western Australia's Intellectual Property and Technology Committee
Useful links
View my research on my SSRN Author page: http://ssrn.com/author=732002
New and noteworthy
Jani is convening the Law School's Art in Law in Art conference 4-5 July 2017, an international multi-disciplinary conference exploring the broad themes of how law perceives art, and how art perceives law, which will be held at the Art Gallery of Western Australia.

2017 presentations:
'Emotions and Intellectual Property Law', Emotions and the Law interdisciplinary workshop, Faculty of Arts, Business, Law and Education

'The Arts, the Law, and Freedom of Expression (with One Eye on That Cartoon), Talking Allowed series, Lawrence Wilson Art Gallery and Institute of Advanced Studies


2017 publications:

'Shape Shifters: Searching For the Copyright Work in Kinetic Living Art’[accepted, Journal of the Copyright Society of the USA, forthcoming September 2017]

2017 submissions:

Submission, US Copyright Office 2017 Inquiry into Moral Rights

2016 presentations:

o December 2016, Law and Society Association Of Australia and New Zealand Annual Conference, ‘Copyright, Authorship and the Non-human in Contemporary Art and Literature’
o August 2016, Stanford IP Scholars Conference, ‘Works of Fiction: the Misconception of Literary Characters as Copyright Works’
o February 2016, Information Environmentalism Conference ‘Literary Characters and the Public Domain’
o February 2016, IP Academics Association of Australia and New Zealand Conference, ‘Bioart in Copyright’

2016 publications:
- McCutcheon, JL, ‘Dead Loss: Damages for Posthumous Breach of the Moral Right of Integrity’ (2016) 40(1) Melbourne University Law Review
- McCutcheon, JL and Holloway, S, ‘Whose Fair Dealing? Third Party Reliance on the Fair Dealing Exception for Parody or Satire” (2016) 27:2 Australian Intellectual Property Journal, 54-73

Current projects
Jani's current research includes:

Writing:

Books/monograph: Literary Characters in Intellectual Property Law (Edward Elgar, 2019)

Articles:

-'Copyrighting Culture: Photography and the Public Domain' [submitted]
- ‘Natural Causes: When Author Meets Nature in Copyright Law and Art'[submitted]
- ‘Works of Fiction: the Misconception of Literary Characters as Copyright Works’
- A comparative perspective of copyright's picturisation right
- Proceeds of Crime and Visual Art

Upcoming conference presentations:

Art in Law in Art Conference July 2017:
- When Words Become Art: Copyright's Picturisation Right
- The Art of Crime: Proceeds of Crime and Visual Art (with Natalie Skead)
- Remedies Forum, Aix en Provence, France (June 2018): Emotions, Remedies, and Intellectual Property Law (with Robyn Carroll)

Projects:

The IP Awareness Project: How IP Savvy Are Australia's Creators and Innovators? Jani recently received a UWA Law School teaching-research Nexus grant to gain insight into the teaching of intellectual property law in Australian tertiary institutions.

Jani is also currently drafting a number of grant applications concerning disability exceptions and visual art.



Research profile
Research profile and publications
 

The University of Western Australia

This Page

Last updated:
Tuesday, 3 November, 2015 2:39 PM