John Tehranian: Technology, Creativity and Identity

On a warm spring afternoon John Tehranian sits at his crowded desk with a cup of soda and a pile of texts before him. Between occasional sips from his beverage, he explains that his scholarship and professional interests are derived from the intersection of art, technology and the law. The eclectic decor in his office supports that assertion. A vintage postcard of Depression-era bluesman Blind Willie McTell is pinned to the bulletin board behind him, while texts, treatises and articles focused on intellectual property and civil rights are lined up on the shelves and arrayed across his desktop. Since arriving at the U of U five years ago, Tehranian’s course offerings have included law and literature (“off the beaten path, but interesting” is his shorthand description) and Constitutional Law II, which includes First Amendment issues, such as free speech and expressive rights. He’s probably best known, though, for his popular classes in intellectual property law, including cyberlaw, entertainment law and the intellectual property (IP) survey.

With what one of his colleagues describes as an “approachable and conversational” teaching style, Tehranian is a popular professor (a student who recently took one of his classes opines that he uses his sense of humor to put students at ease in order to better reach them). He is also a prolific scholar who has produced a number of articles and is under contract to produce a book for NYU Press. Outside the university, he has worked on pro bono matters for indigent defendants including civil rights appeals and political asylum issues. “One of the reasons I became a lawyer is to get something accomplished in the world,” he says. “A legal background is a great way to effect change.”

IP Protection and Free Expression

“I’ve always been fascinated by the interface of technology and law and creativity and what it is that allows creative people to thrive,” Tehranian reveals. A former IP litigator, he was drawn to that area of the law in part because of its unsettled nature. “You’re not just arguing what the law is, you’re arguing what the law should be because so much of it is without precedent, and I like the policy-creating angle.”

Based on the ever-growing enrollment in the Quinney College’s IP classes, students are increasingly drawn to those same issues. Tehranian attributes the growth in part to practical concerns. “No matter what area of law you’re going to practice in, especially if it relates to representing companies, you’re going to be dealing with intellectual property,” he opines. “Students see that.”

Whereas 20 or 30 years ago, IP was relegated to the margins, Tehranian reflects that today it has “infused itself into people’s lives in a way it never did before. Increasingly, with digital technology, the fact that everybody’s on the Internet and everybody is potentially the creator of copyrighted works, that people are Bloggers now, and have their own Web sites you’re facing IP issues head on.”

“Just look at the daily headlines,” he continues, citing the recent high-profile lawsuit brought by Viacom against Google as a result of the latter’s purchase of the YouTube video-sharing site. “That’s an example of an interesting case involving novel issues about digital technology and the use of copyrighted works in the digital environment.”

Tehranian also regularly teaches courses in entertainment law and cyberlaw. He describes the former as an advanced course that allows students to apply information from their first-year classes in a more specialized context. The class touches on advanced constitutional law as applied to regulation of content; advanced contract law in terms of dealing with entertainment industry contracts; and torts concerning privacy rights and defamation. “It’s a fun class that involves celebrities while providing additional grounding in different areas of the law,” Tehranian says.

The cyberlaw class explores how existing legal regimes have been challenged by the advent of the Internet. “The class covers IP as applied to the Internet, as well as advanced civil procedure issues. Jurisdiction is a huge one because you have a lot of anonymity online and you have people engaging in contact with each other when in physical space they’re thousands of miles away from each other,” Tehranian notes. “You have this international Internet, but still have law governed on a national or local basis, and as a result you have lots of transnational problems.”

Third-year student Theresa Foxley recently completed the cyberlaw class and says she was impressed by Tehranian’s “vast knowledge of the subjects he teaches. I was always impressed with his ability to put class material into historical perspective.” The class also increased her interest in IP issues: “It really opened my eyes to intellectual property law, and I hope I can incorporate IP into my practice.”

Identity and Rights

Tehranian explains that his scholarship falls into two broad categories. Given his interests and background, it’s not surprising that the main thread of his work has involved intellectual property issues, with a particular emphasis on the clash between intellectual property protections and free expression. “Historically, IP has been sort of viewed as property, but increasingly we’re seeing that IP rulings are affecting people’s rights to express themselves and potentially implicating First Amendment freedoms,” he says. “One concern I have is over the fair use doctrine and over what copyright law says can and can’t be done.”

Tehranian recently collaborated with a former law school classmate on an article focusing on what he calls the “vast expansion in secondary liability doctrine in copyright.” The article’s premise is that the expansion of secondary liability in copyright has resulted from the proliferation of digital technology and the resulting panic in the content-creation industry. As Tehranian says, “Courts have seized on this panic without a very thoughtful basis for this expansion, and so we critique it by looking at another aspect of the IP regime’97trademark secondary liability. Ostensibly, secondary liability in trademark and copyright come from the same source, but they’ve deviated substantially and so the article is called “The Secret Life of Legal Doctrine.” It examines how they’ve deviated’97how copyright secondary liability is so much easier to prove and more expansive than secondary liability in trademark and we argue that there doesn’t appear to be a firm doctrinal basis for this.”

The second category of Tehranian’s scholarship examines how the law constructs race, identity and individual rights. He recently published an article titled “Compulsory Whiteness: Towards a Middle Eastern Legal Scholarship,” which examines issues surrounding Middle Eastern racial identity. “The article deals with this very weird paradox in American law, which is that Middle Easterners are classified as white by law and if you’re Middle Eastern, you have to check white’ in the box. Yet at the same time, this doesn’t exactly mesh with one’s personal experience. Middle Easterners are by no means considered a minority, but unlike any other minority group in the last 30 or 40 years, they’ve been suffering from increasing rates of discrimination rather than decreasing rates.” Tehranian attributes this phenomenon to world events of the last three decades, including the oil embargos of the 1970s, the threat of terrorism, and the events of 9/11.

“So there’s a real disconnect between how the law treats Middle Easterners as white and the way they’re treated in everyday life, which is as non-white,” Tehranian elaborates. “The article looks at potential ways to address that problem. In a sense, it makes the argument that Middle Easterners are denied the benefits of whiteness and are also denied the remedial benefits of minority status, and as a result are caught in a very unusual Catch 22. One of the shocking things is that there is almost no literature in this area, because [it appears] there are very few Middle Eastern law professors, but one cannot be sure because there are no counts. If I get hired at a place, I get hired as a white male. Despite the fact that many of the prevailing legal issues of today deal squarely with the Middle Eastern issue, there’s not really a Middle Eastern voice in the legal academy at all.”

The research and premise of the article proved so fruitful that Tehranian was offered a book contract with New York University Press. The book, titled Whitewashed: America’s Invisible Middle Eastern Minority, is slated for publication in 2008. Tehranian explains that his objective in expanding the article to book length was to bring to the forefront important issues that have been long ignored, as well as to dismantle common stereotypes about Middle Easterners.

“One thing that most people don’t realize is that in 1960 the vast majority of Middle Easterners living in the United States were Christian,” Tehranian reveals. “Now people associate the Middle East with Islam. The fact is, there are millions of Middle Easterners who are not Islamic, yet that’s become so much a part of the debate that it’s clouded the reality and now everybody thinks of the Middle East as a monolith of Islam, and of radical Islam at that, which is unfortunate and inaccurate.

There’s also a personal dimension for Tehranian, who himself is of Middle Eastern descent: “These are issues I confront myself. All these things I’m talking about are reflected in my own personal experience. People make assumptions of all sorts about me, and in large part they’re wrong.”

Tehranian offers the account of the incident that originally inspired the article: “I was on the hiring market a few years back and a school was interested in me, but they ended up not giving me the offer. The reason was that a bloc of the faculty voted against my candidacy. When I received the phone call, the professor said, Don’t worry; it was nothing about you. It was just a race issue.'”

Once Tehranian had regained his composure, he asked the professor to elaborate. “I thought there was some kind of discrimination. There was, but it was very different than what I had feared. He said the eight people who voted against my candidacy absolutely refused to have another white male on the faculty. They wanted the slot to go to a minority. I was shocked. I thought, I’m not a white male at the airport, so why am I being treated like this? There was deep irony in the fact this was a faculty that was located in an area with a large Middle Eastern community, had a large percentage of students who were Middle Eastern, they didn’t have a single me faculty member, yet these people who voted in a bloc against me who were adamant about getting a minority candidate.” He pauses to let the story sink in, rattles the ice in the bottom of his cup, then poses the question that prompted him to begin exploring the issue: “So were they more interested in getting a minority candidate on paper, or in increasing diversity?”

“So that was a powerful instigation to analyze how we got to this point, what’s wrong with this, and why is no one saying anything about it,” Tehranian summarizes.

Past and Future

After five years at the Quinney College, Tehranian was recently awarded tenure. Colleagues and students alike offer high praise for his abilities.

Rita Reusch, a 21-year veteran of the law school, has taught classes in trademark and copyright law for the past 16 years. She recalls a time in the not-so-distant past (the early 1990s) when she and Professor Emerita Susan Poulter offered the only IP classes at the law school. Prior to their venture into the area, Scott Matheson offered an occasional IP course, but as Reusch says, “it was not until we went out and recruited John that the law school incorporated [IP law] into the mainstream curriculum.”

The results, she says, are self-evident. “The IP survey is a fundamental introduction for any lawyer who is going into commercial practice. The demand for IP in the law school curriculum is huge.”

She adds that Tehranian has increased connections in the community and with adjuncts who teach advanced courses. He also provides a contrast to her perspective on IP issues. Reusch says that as a result of her library training she “has more sympathy with the author and the integrity right,” while Tehranian is aligned more closely with the philosophy espoused by Stanford Law Professor Lawrence Lessig which advocates a broad interpretation of the fair use doctrine. However, she hastens to add that any philosophical differences between the two are minor, and that they are generally in accord in their approach to IP issues.

Ben Whisenant, a 3L at the Quinney College, worked with Tehranian on a pro bono copyright project and later took his Constitutional Law II class. He says that Tehranian’s approach to law is infectious. “It can be very difficult to successfully conduct a participatory class and still get through the material at a reasonable pace. Professor Tehranian does this very well. He also has a very quick wit, which makes for an enjoyable class. I imagine it helps when people are passionate and engaged in the issues. Whether with students or working on a pro bono case, you really get the impression that Professor Tehranian cares.”

In addition to continuing to offer the courses he has taught for the past five years, Tehranian mentions that he would like to expand the law and literature class that was offered for the first time last fall. He has already submitted a proposal to co-teach the class as a graduate-level course with Stacey Margolis, a professor in the English Department. “It’s different than the traditional law and literature class in that it won’t be about how law is portrayed in literature,” Tehranian explains. “Instead, it will let students look at broader themes in the law, dealing with a different theme each week, including law and morality, the law of the family, revenge and retribution, and rehabilitation and education. So the stories we would read have nothing to do on the surface with law or with lawyers or the legal system. It lets students examine this in a more measured atmosphere.”

Tehranian comes from a family of academics. His father teaches international relations, while his mother teaches art and architectural history. His younger sister is also an academic. “I went into the family business, but with the twist that no one in the family is a lawyer,” he says, grinning.

“There’s a remarkable luxury and freedom to being a law professor,” he concludes. “The idea that you can explore whatever your interest happens to be at any time is wonderfully freeing. The idea that you can be a permanent student and get paid for the privilege is remarkable. I love the teaching aspect, the fact that students keep me on my toes and force me to stay up to date on the issues. I feel like being a professor makes me a better lawyer. It’s truly one of the best gigs on the planet.”