The Trademark/Copyright Divide

49 Pages Posted: 11 Jan 2007 Last revised: 16 Sep 2008


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.

Keywords: trademark, copyright, fair use, Dastar, public domain

Suggested Citation

Heymann, Laura A., The Trademark/Copyright Divide. Southern Methodist University Law Review, Vol. 60, 2007, Available at SSRN:

Laura A. Heymann (Contact Author)

William & Mary Law School ( email )

613 South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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