Mark Bartholomew & John Tehranian · January 2013
81 GEO. WASH. L. REV. 1 (2013)
Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Yet each of these intellectual property regimes strikes the balance between ownership rights and free speech in a dramatically different way. This Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, and right of publicity jurisprudence.
The first Part of this Article carefully details the disparate treatment of First Amendment defenses in the three intellectual property regimes. On one side of the spectrum is copyright law. Many factors have rendered copyright law a feeble protector of free expression. On the other side of the spectrum is the recent right of publicity jurisprudence, which routinely invokes the First Amendment and features robust defenses. Somewhere in the middle stands trademark law, offering its own judge-made defenses but simultaneously closing off those defenses for defendants engaging in commercial activity or activity that is potentially confusing to consumers.
The next Part attempts to explain why these three regimes accommodate the First Amendment in such different ways. The Article concludes that the divergence is not the result of careful deliberation, but rather the inadvertent product of different methods and histories of lawmaking. Because this divergence does not represent a logical or deliberate choice, reforms are needed. By bringing these different approaches to the First Amendment into relief, this Article demonstrates that some free speech interests are being shortchanged and aims to place all three regimes on a stronger theoretical footing.
