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The McCarthy Institute

Collaborating to solve IP challenges

The McCarthy Institute sits at the intersection of patent law, copyright, trademark law, technology and consumer behavior. A joint program with Arizona State University’s Sandra Day O’Connor College of Law, The McCarthy Institute conducts regular symposia, workshops and networking groups, and pursues original IP research and scholarship.

Connecting the world’s best IP professionals

The McCarthy Institute is named after J. Thomas McCarthy, its Founding Director and world-renowned author of the multi-volume treatise, McCarthy on Trademarks and Unfair Competition Law, which has been cited in over 7,000 judicial opinions. Over the past decade, The McCarthy Institute has grown into a community of IP professionals focused on the latest developments in patent law, copyright, trademark law and the technologies driving these fields. The McCarthy Institute strives to develop a better understanding of the way that culturally transformative business trends shape the law and vice-versa.

The McCarthy Institute pursues original research, publishes peer-reviewed scholarship, sponsors industry events and hosts an annual symposium that draws hundreds of the world’s top legal professionals.

In 2021, The McCarthy Institute joined Arizona State University’s Sandra Day O’Connor College of Law in Phoenix, Arizona.

Recent publication

Influencer Marketing on Instagram and TikTok: Entertainment or Deception?
Date written: April 1, 2024
View supporting material.

David A. Hyman, Georgetown University Law Center
David J. Franklyn, Golden Gate University - School of Law
Leo Yang, Arizona State University (ASU) - Sandra Day O'Connor College of Law
Mohammad Rahmati, Sharif University of Technology

Influencers routinely promote goods and services to their followers on Instagram and TikTok. Federal law requires influencers to “clearly and conspicuously” label content for which they are paid, but the social media environment deliberately blurs the lines between paid and unpaid content. We study whether Instagram and TikTok users can identify paid influencer marketing content from six different influencers. On average, 29% of respondents believed paid marketing content from six different influencers were not paid ads and 8% were unsure, with significant variation by influencer. The labeling used by influencers to identify influencer marketing content is not consistent – let alone clear and conspicuous. There is also considerable heterogeneity in how respondents interpreted the labels that are being used by influencers. We also find evidence of two-way blurring; on average, 29% of respondents thought unpaid influencer content on Instagram and TikTok were paid ads, and 9% were unsure, with significant variation by influencer. Influencer marketing on Instagram and TikTok involves a significant risk of deception that is not adequately addressed by current policies.

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Student opportunities

The McCarthy Institute Research Fellowship

Fostering original intellectual property scholarship

The McCarthy Institute sponsors student and faculty research projects from ideation through publication in peer-reviewed law journals. McCarthy Research Fellows pursue innovative and important solutions to pressing interdisciplinary problems within intellectual property law. In addition to project funding, McCarthy Research Fellows receive personal guidance from the faculty, advisors and directors in addition to unique networking opportunities with industry leading professionals.

The McCarthy Institute runs Praxis: The Online Publication of The McCarthy Institute, an online publication dedicated to showcasing student scholarship. Praxis serves as a platform for students to publish articles that explore the latest developments and challenges in IP law.

Connect with us

Current ASU Law and MBA students interested in joining The McCarthy Institute should contact Prof. David Franklyn directly with details for their proposed research.

The McCarthy Institute Research

Award-winning publications cited by lawyers, judges, and regulators

The McCarthy Institute scholarship is published in leading peer-reviewed law journals and is widely recognized throughout the legal industry as respected commentary on complex issues. In 2016, the US Patent and Trademark Office Society recognized one of our publications with the prestigious Dr. Joseph Rossman Memorial Award for the greatest contribution to the field of Patents, Trademarks and Copyrights.

Going Native: Can Consumers Recognize Native Advertising? Does It Matter?
19 Yale J.L. & Tech. 77 (2017).

The Problem of Mop Heads in the Era of Apps: Toward More Rigorous Standards of Value Apportionment in Contemporary Patent Law
98 J. Pat. & Trademark Off. Soc'y 182 (2016) (Winner of the 2016 PTO Society Rossman Award for the greatest contribution to the field of patents, trademarks and copyrights)

Search Bias and the Limits of Antitrust: An Empirical Perspective on Remedies
55 Jurimetrics 339 (2015).

Owning Oneself In a World of Others: Towards a Paid-For First Amendment
49 Wake Forest L. Rev. 977 (2014).

Trademark Surveys: An Undulating Path
92 Tex. L. Rev. 2029 (2014).

Trademarks as Search-Engine Keywords: Who, What, When
92 Tex. L. Rev. 2117 (2014).

Trademarks as Search Engine Keywords: Much Ado About Something?
26 Harvard J. L. & Tech. 481 (2013).

The European Court of Justice Rules on Keyword Ads and Trademark Rights
14 Intell. Prop. L. Bull. 89 (2010).

The New Federal Anti-Dilution Act: Reinstating the Myth of Likely Dilutive Harm as a Mask Anti-Free-Rider Liability
11 Intell. Prop. L. Bull. 199 (2007).

Debunking Dilution Doctrine: Toward a Coherent Theory of the Anti-Free-Rider Principle in American Trademark Law
56 Hastings L.J. 117 (2004).

Owning Words in Cyberspace: The Accidental Trademark Regime
2001 Wis. L. Rev. 1251 (2001).

The Apparent Manufacturer Doctrine, Trademark Licensors and the Third Restatement of Torts
49 Case W. Res. L. Rev. 671 (1999).

Toward a Coherent Theory of Strict Tort Liability for Trademark Licensors
72 S. Cal. L. Rev. 1 (1998).

The McCarthy Institute events

TechTainment 2024 Conference (November 12, 2024)

TechTainment 2024

The McCarthy Institute at the Sandra Day O’Connor College of Law and the Los Angeles Intellectual Property Law Association (LAIPLA) are excited to partner together to produce the tenth annual TechTainment™ 2024 Conference. The cutting-edge conference is focusing on the dynamic intersection of technology, entertainment, and law.

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Webinar series

The McCarthy Institute hosts one-hour webinars on YouTube covering a variety of topics including case law updates, biotech patents, international trademark law, and branding.

Past events

The 2024 Copyright Symposium (March 8, 2024)

focusing on AUTHORSHIP, with keynote by Andrew Foglia, Deputy Director of Policy and International Affairs, U.S. Copyright Office.

Through the Copyright Symposium, The McCarthy Institute at ASU Law and the UCLA Institute for Technology, Law and Policy brought together the foremost copyright scholars, practitioners, and industry leaders to engage with cutting-edge issues within copyright law.

Convening the foremost copyright scholars, practitioners, and industry leaders on emerging and pressing issues within copyright law — this year’s symposium focuses on AUTHORSHIP. Panelists will address authorship and AI, community authors and cultural property, and more.

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IP Con (September 29, 2023)

The proliferation of AI is disrupting the foundation of IP law by challenging long-held conceptions of what it means to be a creator, inventor, or producer of intellectual property. This latest installment of IP-Con will bring together government, academia, industry, and legal practice experts to explore this new intersection of AI, IP, and regulatory initiatives.

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