Dilution by Tarnishment: An Unworkable Cause of Action in Cases of Artistic Expression

Abstract

In response to the number of trademark and copyright infringement cases in the last ten years, and in the wake of the Trademark Dilution Revision Act (TDRA), scholarship has focused on ensuring adequate First Amendment protection for artists against infringement and dilution claims. This Note, however, seeks to push the debate in a new direction, by suggesting that First Amendment protection in the trademark dilution context has been stretched too far, leaving corporations unable to attain even injunctive relief against diluters. Unlike the more tailored and flexible free speech doctrines found in the laws of trademark infringement, copyright, and right of publicity, dilution by tarnishment effectively prevents companies from prevailing against artists who negatively depict the corporations' trademarks in their work, no matter how harmful the appropriation may be to the corporation’s mark.