The University of Western Australia

UWA Staff Profile

Ipsum Lorem

Jani McCutcheon

Assoc/Prof Jani McCutcheon

Associate Professor
UWA Law School

Contact details
UWA Law School
The University of Western Australia (M253)
35 Stirling Highway
+61 8 6488 2964
+61 8 6488 1045
BA LLB Monash, LLM W.Aust.
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
Jani has published a number of journal articles and book chapters:

Book chapters

1.McCutcheon, JL, ‘Bioart and Copyright’, E Bonadio and N Lucchi (eds) Unconventional Copyright (forthcoming, Edward Elgar, 2018)

Journal articles

2.McCutcheon, JL, ‘The Artistic Exemption in Hate Speech Regulation’ (submitted to the Law and Society Review, under consideration)
3.McCutcheon, JL and Skead, N, ‘The Art of Crime: Proceeds of Crime Legislation and Visual Art’ (submitted to Crime, Media and Culture, under consideration)
4.McCutcheon, JL, ‘Copyrighting Culture: Photography and the Public Domain’, Photography and Culture, (forthcoming 2019)
5.McCutcheon, JL, ‘Shape Shifters: Searching for the Copyright Work in Kinetic Living Art’ (forthcoming 2018, Journal of the Copyright Society of USA)
6.McCutcheon, JL, ‘Natural Causes: When Author Meets Nature in Copyright Law and Art. Some Observations Inspired by Kelley v Chicago Park District ’ (forthcoming, 2018, University of Cincinnati Law Review)
7.McCutcheon, JL, ‘Digital Access to Culture: Copyright in Photographs of Two Dimensional Art under Australian Copyright Law’ (2017) 7:4 Queen Mary Journal of Intellectual Property 416 - 443
8.McCutcheon, JL, ‘Dead Loss: Damages for Posthumous Breach of the Moral Right of Integrity’ (2016) 40(1) Melbourne University Law Review 240- 287
9.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
10.McCutcheon, JL, ‘Designs, Parody and Artistic Expression – a Comparative Perspective of Plesner v Louis Vuitton’, 2015 41(1) Monash University Law Review, 192-217
11.McCutcheon, JL, ‘Death Rights – Legal Personal Representatives of Deceased Authors and the Posthumous Exercise of Moral Rights’ (2015) 3 Intellectual Property Quarterly 242-266.
12.McCutcheon, JL, ‘The Honour of the Dead - The Moral Right of Integrity Post-Mortem’, 2014 (42) Federal Law Review 485-518
13.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.
14.McCutcheon, J.L., “The Vanishing Author In Computer-Generated Works - A Critical Analysis of Recent Australian Case Law” (2013) 36(3) Melbourne University Law Review, 915-969.
15.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.
16.McCutcheon, J.L. ‘When Sweat Turns to Ice: The Originality Threshold for Compilations following IceTV and Phone Directories’ (2011) 22:2 Australian Intellectual Property Journal, pp 87-101
17.McCutcheon, J.L. ‘Too many stitches in time? The Polo Lauren Case, Non-Infringing Accessories and the Copyright/Design Overlap Defence’ (2009) 20:1 Australian Intellectual Property Journal, pp 39-52
18.McCutcheon, J.L. ‘The New Defence Of Parody or Satire Under Australian Copyright Law’, (2008) 2 Intellectual Property Quarterly 163
19.McCutcheon, J.L. ‘Property in Literary Characters: Protection under Australian Copyright Law’ (2007) 29:4 European Intellectual Property Review pp 140-151 (winner of IPSANZ Essay prize 2006).
20.McCutcheon, J.L. ‘Search and Ye Shall Infringe? Current issues Concerning the Use and Abuse of Trade Marks in Cyberspace’ (2006) l7:2 Australian Intellectual Property Journal, pp 99-113
21.McCutcheon, J.L. ‘How Many Colours in the Rainbow? The Registration of Colour per se under Australian Trade Mark Law’ (2004) 26:1 European Intellectual Property Review, pp 27-33
22.McCutcheon, J.L. ‘Monopolised Product Shapes and Factual Distinctiveness Under s 41(6) of the Trade Marks Act 1995 (Cth)’ (2004) l5:1 Australian Intellectual Property Journal, pp 18-33
23.McCutcheon, J.L. ‘The Registration of Sounds and Scents Under Australian Trade Mark Law’, (2004) 2 Intellectual Property Quarterly, pp 138-172
24.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)’, (2002) 13:4 Australian Intellectual Property Journal, pp 199-217
Non-refereed publications

McCutcheon, JL ‘Where The Wild Things Aren’t: Sendak Sequel Stymied By US Copyright Law’, The Conversation , 13 July 2013
Roles, responsibilities and expertise
Jani is 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 is currently 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:

Writing in progress:

- Art in Law: Law in Art (edited volume)
- 'When Words Become Art: the Picturisation Right Under Copyright Law’
- ‘On The Nullians’
- ‘Works of Fiction: The Misconception of Literary Characters as Copyright Works’
- ‘Emotions, Remedies, and Intellectual Property Law’ (Remedies Forum, France, June 2018)
- ‘Feeling Art: Australian Copyright Law’s Disability Exceptions and their Application to 3D Printing of 2D Art’ (Feeling Art International experts Workshop, University of Maastricht, June 2018)
- ‘Copyright and Illustrated Fiction in the 19th C’
- ‘Contextual Infringement of the Moral Right of Integrity’
- ‘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?’
- ‘Literary Characters and the Public Domain’

Future projects:

Feeling Art, Interrogating Intellectual Property Rights Exceptions for 3D Printing of 2D Art to Facilitate Access by the Visually Impaired

'Law in Art Symposium', September 2018, with Lawrence Wilson Art Gallery and the UWA Institute of Advanced Studies. Contemporary artists engaging with law as subject matter will discuss their work with a panel of interlocutors

Future Conferences and workshops:

- Remedies Forum, Aix en Provence, France (June 2018): Emotions, Remedies, and Intellectual Property Law (with Robyn Carroll)

- Feeling Art: Disability Exceptions and their Application to 3D Printing, International experts Workshop, University of Maastricht, June 2018

Funding received
Awarded grants:
1.Jani McCutcheon CI, ‘Feeling Art: Enhancing Disability Access to Artistic Works – International Experts Workshop’, Maastricht University Law School travel grant (€1600, 2018)
2.Jani McCutcheon CI, ‘A Pilot Study Ascertaining The Extent Of Intellectual Property Law Teaching To Australia’s Future Creators And Innovators’ Law School Teaching-Research Nexus grant, (2017, $2500)
3.Jani McCutcheon CI, Art in Law in Art Conference, key note speaker travel grant, Ian Potter Foundation, $2700 (2017)
4.Jani McCutcheon CI, Art in Law in Art Conference support grant, Perth Convention Bureau, $1000, 2017
5.Jani McCutcheon CI, numerous Law school internally funded competitive sabbatical and travel research and conference grants (2006 – 2017 totalling more than $25,000)
6.Jani McCutcheon CI, ‘Old Law, New Art: the Dissonance between Copyright and Contemporary Art’, UWA Research Development Office ARC Discovery Project research development grant , $2000 (2013)
7.Jani McCutcheon CI, research publication support grant, Faculty of Economics, Commerce, Education and Law, $2500 (2002).
some proficiency in French
* 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
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:
New and noteworthy
Jani convened a very successful Law School conference, Art in Law in Art during 4-5 July 2017, an international multi-disciplinary conference exploring the broad themes of how law perceives art, and how art perceives law, which was 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

Current projects


Literary Characters in Intellectual Property Law (Edward Elgar, 2019)


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

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