From Ashes to Fire: Trademark and Copyright in Transition

Abstract:     
This Article compares the evolution of unfair competition law following the Industrial Revolution with the development of copyright in the wake of the Information Revolution. In each period, reformers frustrated with the inability of courts and legislatures to adapt quickly to the new reality proposed more radical solutions. These "satellite doctrines" do not ultimately displace traditional principles, but they can develop a life of their own.

In the early twentieth century, orthodox trademark law was unable to provide protection necessitated by the growth of advertising. During those years, some scholars and judges proposed broad property rights for marks through misappropriation, dilution, and the right of publicity, which are still with exerting an influence on the law. In the current era, some are proposing theories of copyright that would dramatically reduce protection in response to the ability of digital technology to reduce publication and distribution costs. The Article concludes by assessing how these byproducts of the current transition in copyright might develop in the near term.

Accepted Paper Series