Traditional Contours

A few weeks ago, I gave a talk at the Fordham Intellectual Property, Media and Entertainment Law Journal symposium, Where Do We Go From Here? In fact, I gave two talks, one on a copyright panel and another on a trademark panel. But really, I gave one talk that extended across both panels. My talk was about the intersection of the First Amendment and intellectual property systems. I made a few points, which I’ll summarize below the fold:

Some preliminary thoughts about the intersection of the First Amendment with copyright and trademark:

First, the digital networked environment that has emerged recently—the Internet— has had a significant impact on many cultural, economic, and social systems as well as the laws that regulate those systems. Copyright and trademark are hotly contested and rapidly evolving in this environment. At the core of many debates in these fields, there seem to be First Amendment concerns lurking. The intersection of the First Amendment with copyright and trademark may be fertile ground for rethinking and change. (Of course, this is not a new topic; many scholars have written about the intersection.)

At a broad “macro” level, the Supreme Court suggested—perhaps inadvertently—an avenue for pursuing such change when in Eldred it stated that so long as “Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.” That is, we might presume that the existing contours, including the built-in safeguards of idea-expression and fair use, properly mediate copyright with the First Amendment.

I suggested that the “traditional contours,” particularly those contours that mediate the copyright-First Amendment interface might become deficient from a First Amendment perspective because of (top-down?) changes wrought by Congress and perhaps also because of (bottom up?) changes in the underlying social and technological environment. That is, if, as Yochai Benkler has argued (quite persuasively in my opinion), the digital networked environment fundamentally changes our participatory potential and how we relate to expressive content, then we might expect or want to see increased First Amendment scrutiny of copyright. In the online environment, people are not simply passive consumers of content, but as Benkler (and others) have put it, we’re shifting or have shifted from being consumers to users. Many of the most contentious debates in copyright law seem to implicate core First Amendment concerns and perhaps force us to consider how well the existing built-in safeguards function in the online environment. [I mentioned a few examples: Gripe sites, Fan sites, Fan fiction, Sampling, YouTube (not the plain uploading of someone else’s content, but the slew of videos where snippets of songs, videos, or other works are in the background; or even where fans make their own music videos, activities that may test the built-in safeguards), Wikipedia, blogs, and many other examples.] Of course, the notion of traditional contours raises many questions: What are the traditional contours? How are they defined (historically, functionally, in relation to 1st Am)? Can this inquiry arise in an as-applied challenge? Must there be a formal “change” in the contours that is due to congressional action? Or might the contours—if functionally defined—be tested due to changes in the underlying environment?

Might the “traditional contours” analysis be extended to trademark?

Trademark law is fundamentally a body of law that regulates speech. To the extent that the speech is plainly commercial speech, then it is so-called “low value” speech within the First Amendment world and thus not subject to the type of scrutiny applied to political speech. But, as we all know, the words, images, symbols, and devices that can function as trademarks—that is, that can serve the trademark function of creating and maintaining associations with source—are also incredibly powerful speech devices for communicating messages about various things, including but not limited to the trademark owner. It is precisely because of the powerful trademark meaning that trademarks garner in the marketplace of goods and services that trademarks are valuable tools for generating and communicating meaning in the marketplace of ideas.

Trademark law, like copyright law, regulates certain uses of protected expression but draws careful lines and boundaries (or contours, if you will) that leave a variety of uses free. Trademarks traditionally operate in market settings where consumer confusion is likely; it is concerned with competition; with efficient markets; harms to consumers associated with deception or misleading practices. But in nonmarket settings, where consumer confusion is unlikely, trademark law has not traditionally been operational. Even beyond the broad boundaries that delineate where trademark does and does not reach (boundaries estabished by concepts like “use in commerce” “consumer confusion” and perhaps “trademark use”), there are additional doctrinal limits, mainly defenses that further carve out space for use of trademarks for communicative purposes that implicate First Amendment concerns. And then we can add in anti-dilution law …

This post is getting quite long, so I’ll leave it at that. I don’t know that the “traditional contours” approach is the best way to raise these issues about the intersection of the First Amendment with copyright and trademark; that is, I am not sure we need to use the approach to raise these issues; we might simply invoke the First Amendment in specific cases as appropriate.

Thoughts?