The Copymark Creep: How the Normative Standards of Fan Communities Can Rescue Copyright
27 Pages Posted: 4 Apr 2015 Last revised: 17 Apr 2015
Date Written: April 2, 2015
Copyrighted works have increasingly come to be perceived by society as serving a purpose traditionally considered to be held by trademarks. They act as valuable brands within a consumer marketplace, protected as corporate assets and defined to protect commercial interests. This Article argues that the growing overlap between copyright and trademark has resulted in a “copymark creep,” evident in the judicial decisions that have confronted the issues.
This confused state of the law is resulting in tipping the copyright balance away from its purported Constitutional goal. Whereas copyright is understood to benefit the public by providing a public domain and protecting certain free speech rights, the trademarking of copyright chips away at both of those benefits. And the lack of bright-line rules in the copyright arena only adds to the uncertainty and leads to the stifling of more speech, at further detriment to the public.
This Article proposes that the solution to this problem can be found on the Internet. Rather than the anything-goes anarchy they are frequently perceived as, fan communities employ bright-line rules to create a system that is clearer than that found in the judicial precedents. In doing so, these communities have instinctively turned toward trademark protections in the copyright context, relying on disclaimers to dispel confusion and on lack of commercialism to shelter them from infringement attacks. This importation of benchmarks more strongly associated with trademark law both acknowledges the overall copymark creep and finds a way to preserve copyright’s goals in the face of it, resulting in a flourishing creative community. Additionally, fan communities use these benchmarks to set themselves bright-line rules that encourage speech that might otherwise be hesitant in the face of legal uncertainty.
If we are going to continually expand copyright law, we should at least be careful to check it with those doctrines we use to keep trademark from swallowing the cultural dialogue. Such an impulse is the only one that makes sense to preserve the effectiveness of copyright as a method of encouraging creativity. Otherwise, we run the risk of using copyright as merely a backstop to trademark law and lose sight of its different overall goal: to encourage creativity, not commercial gain.
Keywords: copyright, trademark, fan communities
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