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10 Okla. J.L. & Tech. 1 (2014)

handle is hein.journals/okjolt10 and id is 1 raw text is: Post-Myriad Genetics Copyright of Synthetic Biology and Living Media © 2014 Michael D. Murray* Abstract This Article addresses copyright as a viable form of intellectual property protection for living, organic creations of science and art. The United States Supreme Court's decision in Association for Molecular Pathology v. Myriad Genetics, Inc.1 narrowed patent-eligible protection over living components of humans or other organisms. Synthetic biologists are expected to look with renewed focus on copyright law for the intellectual property protection of biological creations. The contribution of this Article is to reveal that the same issues are raised with regard to the copyrightability of the works of synthetic biology as are raised by pictorial, graphic, and sculptural arts that use and produce living media as their works. The current contours of copyrightability present four identical questions that are particularly relevant to and difficult to answer in the context of science and art that purports to create works of living media: * Is living media copyrightable subject matter? * What is authorship (or who is an author) of living media? * What does it mean to create a fixed and tangible work of living media? * What constitutes an original creation of living media under the originality doctrines of merger and scenes a faire? * Associate Professor of Law, Valparaiso Law School. JD, Columbia Law School (Harlan Fiske Stone Scholar); BA, Loyola University-Maryland (summa cum laude); Grad. Cert., Fudan University-Shanghai, China. Professor Murray has written 18 books and numerous law review articles on art law, copyright, ethics of intellectual property, freedom of expression, and other topics. Professor Murray thanks Professor Andrew Torrance who visited Valparaiso for the Bioethics, Law, and Synthetic Biology Conference, and also thanks Visiting Professor Candace Kilpinen for organizing the conference. He gives special thanks to his scientific consultants on synthetic biology, Osman Mirza and Dev Narasimhan, for their comments and corrections. Finally, he thanks Professors Anthony Casey (Chicago), Curt Cichowski (Valparaiso), Vinjay Harpalani (Chicago-Kent), David Herzig (Valparaiso), Aziz Huq (Chicago), Greg Reilly (Chicago), Sandra Sperino (Cincinnati), and Nicholas Stephanopoulos (Chicago), for their additional comments and suggestions for this Article. 1. Ass'n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013) (holding isolated DNA sequences not patentable). 1

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