Copyright (c) 2008 All rights reserved. http://works.bepress.com/rebecca_tushnet Recent documents in Rebecca Tushnet en-us Thu, 03 Jan 2008 14:20:27 PST 3600 http://works.bepress.com/rebecca_tushnet/8 http://works.bepress.com/rebecca_tushnet/8 Fri, 30 Nov 2007 08:12:06 PST This article identifies three basic frameworks that intellectual property theorists have used to support giving authors a right to attribution: authorial high-protectionism, which is concerned with respecting the unique role of authors; copyright low-protectionism, which is concerned with increasing access to copyrighted works and wishes to substitute credit for total control; and trademark-style consumer protectionism, which is concerned with giving consumers truthful and useful information about the works they choose. I examine these rationales, and the tensions between them, and conclude that attribution rights cannot fulfill their apparent promise to unite differing visions of intellectual property. Legitimate claims for credit are simply too varied and contextual, and copyright law already too complex and reticulated, for an attribution right to be a valuable addition to copyright's arsenal. This is so even though voluntary attribution is often a viable substitute for more expansive control of uses of copyrighted works. Fundamentally, American copyright law has enough trouble identifying owners; identifying authors is beyond its grasp. Attribution rights, especially in the absence of comprehensive author-centered reform, would only make the law more complex, not more just. I conclude by examining the role of attribution in more modest proposals to add a new fair use factor and to add protections for uses of "orphan works," works whose owners cannot be found after a reasonable search. Rebecca Tushnet Copyright http://works.bepress.com/rebecca_tushnet/7 http://works.bepress.com/rebecca_tushnet/7 Thu, 13 Sep 2007 11:43:31 PDT The Lanham Act and its state counterparts in trademark and unfair competition law regulate speech in ways inconsistent with the current thrust of Supreme Court's commercial speech doctrine. The lines between confusing and informative uses of trademarks and between true and false advertising claims are difficult to draw, in ways that in other contexts - particularly libel doctrine - have led courts to impose increasing burdens on plaintiffs and regulators. I will discuss the First Amendment implications of distinguishing truth from falsity in commercial speech, applied to trademark infringement and to other types of false advertising. In addition, on a somewhat different note, I will consider trademark dilution as a consumer protection measure, arguing that even a dilution law limited to classic nonconfusing uses of a famous mark on noncompeting goods is constitutionally deficient. Rebecca Tushnet Trademark http://works.bepress.com/rebecca_tushnet/6 http://works.bepress.com/rebecca_tushnet/6 Tue, 28 Aug 2007 07:18:19 PDT Rebecca Tushnet Marital Law http://works.bepress.com/rebecca_tushnet/5 http://works.bepress.com/rebecca_tushnet/5 Tue, 28 Aug 2007 07:07:31 PDT Copyright lawyers talk and write a lot about the uncertainties of fair use and the deterrent effects of a clearance culture on publishers, teachers, filmmakers, and the like, but we know less about the choices people make about copyright on a daily basis, especially when they are not at work. Thus, this article examines one subcultural group that engages in a variety of practices, from pure copying and distribution of others' works to creation of new stories, art, and audiovisual works: the media-fan community. Fans justify their unauthorized derivative works as legitimate, no matter what formal copyright law says, with theories that draw on factors similar to those employed by fair use doctrine, but fan practices differ in significant ways from copyright law's assumptions, especially in their treatment of attribution as a substitute for compensation and control. The article concludes by discussing the rise of hybrid forms of partially or incompletely commodified, unauthorized but tolerated, creative production; these new forms challenge both conventional production models and traditionally noncommercial fan practices. Rebecca Tushnet Copyright http://works.bepress.com/rebecca_tushnet/4 http://works.bepress.com/rebecca_tushnet/4 Thu, 09 Aug 2007 08:35:39 PDT False advertising law has largely escaped constitutional scrutiny because courts consider false or misleading commercial speech outside the protection of the First Amendment. Even moderate First Amendment protection for truthful commercial speech, however, requires some constitutional policing of the line between truth and falsity. Current enforcement of false advertising law, whether administrative, as with the FDA's regulation of drug-related speech, or judicial, as with Lanham Act suits brought by private parties, is ill-equipped to deal with First Amendment doctrine's very different concerns, rules, and presumptions. This essay explores some of the ways in which the First Amendment and trademark law--a type of false advertising law--differ in approach. Unlike most treatments of the subject through a First Amendment lens, this one does not begin with the presumption that the standard First Amendment approach is superior. Rebecca Tushnet Trademark http://works.bepress.com/rebecca_tushnet/3 http://works.bepress.com/rebecca_tushnet/3 Wed, 01 Aug 2007 12:12:24 PDT How should we think about the relationship between copyright and the First Amendment? Many answers have been proposed to that question, and this short essay does not attempt a comprehensive assessment of the debate. Rather, it examines the similarities and divergences between copyright and First Amendment principles using two points of comparison: the public forum and the public domain. A "public forum" in First Amendment law is a place held in trust by the government for use by the people, whether generally (a traditional public forum) or for specific topics (a limited public forum). By "public domain," I refer to various concepts of freedom to use expression, information and other intangible intellectual goods, rather than to real property. The public forum and the public domain are places that belong to everyone, because they belong to no one, from which people cannot be excluded on the grounds that a property owner wishes to exclude them. The history and complications of public forum doctrine offer some cautionary lessons for proponents of an expansive public domain in copyright. Rebecca Tushnet Copyright http://works.bepress.com/rebecca_tushnet/1 http://works.bepress.com/rebecca_tushnet/1 Wed, 01 Aug 2007 12:08:57 PDT Rebecca Tushnet Copyright http://works.bepress.com/rebecca_tushnet/2 http://works.bepress.com/rebecca_tushnet/2 Wed, 01 Aug 2007 12:08:57 PDT Rebecca Tushnet Copyright