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Abstract:
Consumers in the marketplace of ideas are well acquainted with one aspect of the Foucauldian concept of the author function: the way in which an author's name serves to organize both producer inputs - the various works the author wishes to have associated with his name - and consumer inputs -the readers' interpretive reactions to any particular body of work. Indeed, choosing to write under a pseudonym or under one's true name is the way in which an author exerts control over this function, by grouping certain works (for example, scholarly pieces) under one name and other works (for example, mystery novels) under a different authorial name, thus segregating readers' responses to each of these bodies of work. Readers, in turn, respond to this decision by mirroring the choices made by the author - continuing, for example, to refer to certain works as being authored by Mark Twain even when the author's true name of Samuel Clemens is known, or accepting that the Nancy Drew series was written by Carolyn Keene rather than by a series of different writers over time.

Borrowing from postmodern literary theorists Roland Barthes and Michel Foucault, and given that statements of authorship often tell readers very little, if anything, about the identity of the individual who put pen to paper, this Article proposes a separation of statements of authorship - what this Article terms authornyms - from facts of authorship. This construct leads to the conclusion that all authornyms are essentially branding choices, even if the brand that is chosen is the author's true name, and therefore that the author function is really a trademark function. If this is the case, then - as in trademark law - we should seek to preserve the organizational system of the authornym function and to minimize the likelihood of reader confusion that occurs when a work is used unlawfully without attribution - in other words, when an author's choice of authornym is not preserved.

The Supreme Court's 1995 decision in McIntyre v. Ohio Elections Commission, which granted First Amendment protection to pseudonymous speech, was an inherent acknowledgment of the trademark value that authornyms serve and the importance of controlling the author function by the choice of authornym. But in its decision in Dastar Corporation v. Twentieth Century Fox Film Corporation eight years later, the Supreme Court largely denied authors the ability to compel attribution of their works (thus preserving their authornymic choice) through the Lanham Act, and thus denied readers the accurate attribution required for organized and efficient literary interpretation. This Article contends that only by recognizing the essentially pseudonymity of all statements of authorship - in other words, by decoupling the copyright-focused concept of authorship from the trademark-focused statement of authorship (authornyms) - can we create room for the values that trademark law can promote in the marketplace of ideas.

copyright, trademark, pseudonymity, authorship, Dastar, attribution, passing off

Abstract:
This essay, written for a symposium on fair use sponsored by the Columbia Journal of Law and the Arts, offers an alternative theory of the concept of transformativeness in the fair use analysis in copyright law. Drawing on literary reader-response theory, the essay suggests that courts might determine whether a claimed fair use is transformative by considering not whether the defendant has engaged in certain activities with respect to the copyrighted work but, rather, whether the defendant's work engages with a different discursive community from the plaintiff's work.

Previous analyses have, not surprisingly, focused on section 107's directive to consider the purpose and character of the use as a suggestion to evaluate not how the work is perceived or interpreted but what the defendant creator intended or hoped to achieve. But virtually all work building on or incorporating another work is transformative to some extent because all creative expression is, to some degree, representational. Thus, if the goal of the transformativeness inquiry is to determine whether the second work has contributed a new expression, meaning, or message, then it might be more fruitful to ask the transformativeness question from the reader's perspective. By considering the degree of transformativeness to align with the amount of interpretive distance that the defendant's use of the plaintiff's work creates, courts may reach different, and more appropriate, results with respect to categories of expressive work that have occasionally been deemed not transformative enough: appropriation art, in which a work is incorporated wholesale or nearly so, and satire, in which the target of the defendant's work is typically something other than the plaintiff's work.

By suggesting that virtually everything is transformative, I do not mean to suggest that nothing is infringing. But shifting the focus from author to reader may serve to remind us both of the limits of transformativeness as a key to fair use and of the fact that facilitating dissemination of multiple meanings of the same work can achieve the goal of copyright law just as well as the dissemination of multiple works. Thus, if we are to retain transformativeness as a relevant answer, let us at least ask the right question - as Foucault suggests, not Who is speaking? but Who is listening?

copyright, fair use, transformative reader-response

Abstract:
The stories told by critics of U.S. copyright law are filled with examples of overextension of copyright, in which content owners use the broad remedies copyright law provides to limit reimagining of or commentary on their works with which they disagree. Such critics often propose a solution that sounds in the restructuring of copyright law itself, such as a more expansive reading of the law's fair use provisions or a limitation of the copyright term. While the concerns of these critics are justified, their focus might be turned elsewhere. A solution to the cudgel of copyright law already exists in the realm of U.S. trademark law. The content owners who are the subject of commentators' criticism are not, when their claims are correctly characterized, seeking to control the exploitation of the work for which copyright law provides them a limited monopoly; they are seeking to control the associations of attribution that subsequent use of the work suggests. This interest - an interest in accurate source identification and the desire to avoid consumer confusion in the marketplace - is, if anything, the domain of trademark law-related regimes and should be so addressed. Despite this allocation of harms within the intellectual property law scheme, courts and commentators have generally been resistant to allowing trademark law-related claims a place at the table with respect to copyrighted (or formerly copyrighted goods), a resistance that seems much weaker at other intellectual property law interfaces. The dominant justification for this resistance - that recognition of trademark-based interests for communicative goods will work an even greater extension of copyright - misconceives the nature of the relationship between copyright law and trademark law, which address different economic harms, albeit occasionally with respect to the same goods. Thus, a recognition (and reinvigoration) of the trademark/copyright divide can enable us to think more creatively about how to stem the overuse of copyright: namely, by requiring content owners to state attributional and related claims as trademark law-related claims, not as copyright claims, by characterizing the refusal to do so as copyright misuse, and by strictly construing the alternative regime to ensure only legally cognizable claims survive. Copyright law doesn't forbid such a move and, indeed, may well be enhanced by it.

trademark, copyright, fair use, Dastar, public domain

Abstract:
This brief essay, written for a special issue on teaching intellectual property law, considers the "reasonable consumer" as he or she appears in trademark law cases. The "reasonable consumer" in trademark law is similar to tort law's "reasonable person," but they are not identical beings. The reasonable person in tort law is someone who sets a standard of care, who models how the law tells us we should act as we go about our lives. But the reasonable person in trademark law is more rule-like than standard-like. He or she doesn't embody an aspiration but rather, much like the speed limit on a highway, establishes the dividing line ex ante between what is legally appropriate and what is error. As a result, the reasonable consumer in trademark law is very much a judicial construct, a mythical figure assumed to have a certain set of characteristics - not surprisingly, often similar to those held by the court.

By offering some examples from the case law, this essay encourages educators and their students to consider how often this judicial construct matches reality. For example, courts that look to a consideration of "sound, sight, and meaning" in determining whether two trademarks are similar (and therefore likely to be confused) may not always recognize that consumers hear, see, and interpret trademarks in unpredictable ways. Trademark law should expect consumers to exercise a fair amount of judgment, but it's useful to remember that, as Edward Rogers wrote almost one hundred years ago, trademark's "reasonable consumer" is "a real person . . . endowed with certain faculties and possessed of certain failings." The necessities of litigation may require judicial abstractions, but the realities of the marketplace persist.

trademark, reasonable person, teaching intellectual property

Abstract:
This brief commentary, published in January 2006, provides an analysis of the Grokster decision. It begins by characterizing the U.S. Supreme Court's decision in Sony Corp. of America v. Universal City Studios as conveying two important limitations on secondary liability: a recognition of the difference between knowledge acquired before product distribution and knowledge acquired afterward, and a requirement that this knowledge must relate to the product's design for infringement rather than for copying. It then goes on to describe the Court's inducement-based holding in Grokster and evaluates the two concurrences considering the Sony question sidestepped in the majority opinion, ultimately concluding that Justice Breyer's concurrence, which relies on the important distinction between the distribution of technology generally and the promotion of technology for a particular (infringing) purpose, is more faithful to the values underlying Sony.

copyright, infringement, grokster, sony

Abstract:
U.S. copyright law accords its bundle of rights to the author of the work. But despite the centrality of this figure in the Copyright Act, the statute doesn’t define the term, and commentators have yet to agree on precisely what characteristics this creature should have. As history and scholarship show, an author can take on many different personas, she can be individual or corporate; she can be someone who creates deliberately or accidentally; and she can work separately or in collaboration with others. Far more attention has been paid to this individual’s creative output: works of authorship. Works of authorship are the creations to which rights attach, and so discovering the substance and boundaries of such works is often the first step in any copyright analysis. As a result, in U.S. copyright law, the author is defined more by what she creates, a copyrightable work, than by why she creates.

This result seems odd, because U.S. copyright law is typically explained as affording authors economic incentives to create so that the public benefits from the development of new works. An author will be reluctant to create and commercialize her work if a second-comer can simply copy that work and sell it so as to recoup her cost of copying, far more cheaply than the author herself, who must also recoup the cost of production. This explanation assumes, however, that authors create in response to economic incentives. While this may be true for some authors and for some forms of expression, it is unquestionably not true for others. Copyright law itself, however, remains fairly agnostic in this debate. Despite the varying interests and incentives that motivate authors to create, copyright law gives all authors exactly the same bundle of rights. Although the term of those rights differs depending on whether the author is corporate or individual, and although an employer can acquire rights in a work without having actually created the work (through the work-for-hire doctrine), both the individual and the corporate author hold the same rights to prevent certain unauthorized uses of the work. Copyright law makes no attempt to match the rights it grants to the needs of the party to whom it grants those rights, resulting in too much protection in some instances and not enough in others. It seems particularly unbalanced to engage in a multifactor, nuanced analysis of the defendant’s use and then to compare it to a monolithic right on the plaintiff’s side of the equation.

Copyright law might, therefore, better accomplish its goals if it took better account of the activities and interests of authors rather than focusing on the products of their creativity. Different types of authors engage in different modes of creation and therefore have different interests in controlling the results of their work. The goal of this Article is to consider whether copyright law would be improved by recognizing this perspective.

copyright, authorship, creativity, originality

Abstract:
First Amendment theories of trademark law tend to focus on the need of speakers to employ trademarks in creating new speech — in parodies, comparative advertising, and other ccommunicative endeavors. An alternative use of the First Amendment in trademark law, however, would focus on the interests of consumers in autonomy as they make choices about how to respond to trademark meaning. First Amendment doctrine in other areas of the law involving persuasive communications provides useful material on which to draw in constructing the autonomous consumer. With that consumer more fully realized, modern expansions of trademark law, such as dilution and initial interest confusion, can be more thoroughly reconsidered and questioned.

Abstract:
This essay is a response to Prof. Victor Fleischer's analysis of the MasterCard IPO as part of a symposium on the topic hosted by the Harvard Negotiation Law Review. In his article, Prof. Fleischer contends that the structure of the MasterCard IPO -- in particular, for purposes of this essay, the decision to create a charitable foundation to hold a large block of MasterCard stock -- suggests that branding and antitrust concerns, rather than economics, were at the forefront.

This essay responds to Prof. Fleischer's assessment of the branding implications of the MasterCard IPO by considering, first, questions of audience. A corporation using its IPO structure to communicate something about the brand to the broader consumer market is not likely to be speaking to that market directly, given the presumably small overlap between consumers and IPO participants. In fact, I contend that the audience is in fact a third group through which much of the interpretive work is likely to occur and which will help intermediate this message: financial newspapers, brokers, and the like. If this is the case, then the factual disconnect between the branding message and the realities of implementation that concerns Prof. Fleischer -- i.e., whether MasterCard is in fact a charitable, public-minded organization -- becomes less important: the messenger creates the message. And because such branding intermediaries have a significant role to play in the creation of the brand, recognizing their importance -- in particular, their ability to disrupt the very brand message they are being asked to help create -- calls into question more fundamental trademark doctrines that depend, in part, on a stable brand meaning.

MasterCard, branding, trademark, dilution

Abstract:
Many individuals have been surprised or troubled to find themselves the subject of biographies, plays, photographs, and Internet postings in which they did not actively participate, transformed from fairly anonymous individuals into widely known artistic subjects. Although these experiences are not new, the development of recording and photographic technology and the ability to distribute such recordings over the Internet to a worldwide audience have redrawn the boundary between public and private. Events that formerly would have receded into the darkness of the past are now captured on mobile phones and uploaded to YouTube. Search engines and web archives make it ever harder to distance oneself from these once forgettable and now cemented episodes of life. Commentators have chronicled the misfortunes of individuals who believed their actions were viewed by only a few in the direct vicinity but who became unwilling Internet sensations virtually overnight. Concerned by these developments, scholars have highlighted the privacy interests at stake, calling for reforms that would provide greater protection against unwanted publicity, even for acts in public places, a space in which privacy law traditionally provides little force. As illuminating as these discussions are, they often do not take into account a potential competing interest: the copyright held by the writer or photographer who has captured the subject’s life, an interest that arises at the moment of fixation -- the second that the story is committed to keyboard or the JPEG is stored in memory. Fixation -- the act of preserving something, even if only temporarily -- is necessary to obtain protection under U.S. copyright law, which requires that the copyrighted “work” be “fixed in a tangible medium of expression.” Because many works of creative expression are fixed in some form, the subject of fixation arises in relatively few cases -- typically in connection with computer technology, when the question is whether fixation in computer memory meets the statutory requirement. Fixation receives a bit more attention on the scholarly front, where commentators have highlighted how the requirement works to exclude artistic endeavors such as improvisational theater from the scope of copyright protection. On the whole, then, it would seem as if fixation is a relatively uncontroversial topic. Yet fixation is increasingly important in an information age. Under U.S. copyright law, fixation is what creates both an author and a commodifiable subject, neither of which exists as a legal entity in copyright law before the act of fixation occurs. It transforms the creative process (and its subject) from a contextual, dynamic entity into an acontextual, static one, rendering the subject archived, searchable, and subject to further appropriation. Even in contexts in which there is no competing claim as to control, fixation still works to bound the fruits of creative effort, engendering distance between the author and audience. Fixation thus causes a kind of death in creativity even as it births new legal rights. Once an “author” has fixed a certain version of her work, she has propertized its subject, subordinating the work to the various laws and tropes that come with a property-based regime such as copyright law: ownership, transformation, borrowing, and theft. Fixation is what allows the subject to be commercialized and analyzed; it is what marks the transformation to subject in the first place.

authorship, copyright, fixation, right of publicity