Legal Fictions: Copyright, Fan Fiction, and a New Common Law

A girl owns a number of Barbie dolls. She makes outfits for them and constructs elaborate scenarios in which they play starring roles. She enacts her dramas in her front yard, where passers-by can easily see. Does she violate the law? What if the girl writes down her stories starring Barbie? What happens when she lets her friends read them? What if she e-mails those stories to a Barbie mailing list? What if she posts those stories and a picture of Barbie in her new outfit on her Web page? Copyright law has long been a concern more for corporations than for ordinary citizens. However, with new technologies that allow individuals to produce and distribute information easily, however, copyright law is becoming increasingly relevant to common activities. Much has been written about the problems created by the easy reproduction of copyrighted documents and by the poor fit between law and technology that makes every person who browses the World Wide Web ( the Web ) a likely lawbreaker. This Article goes beyond the debate over pure copying to analyze the implications of creative work-now widely accessible via the Internet-that draw on copyrighted elements of popular culture

Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies

Syftet med mitt examensarbete är att undersöka hur lärare upplever att arbetar med en metod som riktar sig till elever som har läs- och skrivsvårigheter. Mina frågeställningar berör hur lärare upplever att det är att arbeta med Wittingmetodens ominlärning samt hur de upplever att elevernas syn på sig själva som läsare och skrivare påverkas och slutligen hur de upplever att eleverna påverkas av metoden.   De teoretiska perspektiv som är utgångspunkterna i arbetet är dels specialpedagogiskt perspektiv som berör hur skolan ser på elevers svårigheter samt vilka åtgärder som lämpar sig och dels ett strukturellt perspektiv gällande vad som är goda arbets- och lärmiljöer för elever som har svårigheter med läsning och skrivning. Jag har varit inspirerad av fenomenografisk ansats och den metod jag har valt att använda mig av är kvalitativa halvstrukturerade intervjuer med lärare som arbetat med Wittingmetoden för att hjälpa elever åtgärda sina läs- och skrivsvårigheter. Intervjuerna har sedan analyserats med hjälp av en kvalitativ innehållsanalys som har resulterat i teman.   Resultatet visar att lärarna har en positiv inställning till Wittingmetodens ominlärning och att eleverna utvecklar en medvetenhet om sina styrkor och svagheter, får en starkare tilltro till sin egen förmåga och därmed även ett ökat självförtroende

Fixing Incontestability: The Next Frontier?

Incontestability is a nearly unique feature of American trademark law, with a unique American implementation. The concept of incontestability allows a trademark registrant to overcome arguments that a symbol is merely descriptive of features or qualities of the registrant’s goods or services—for example, “Juicy” for apples. Incontestability provides a nearly irrebuttable presumption of trademark meaning, which is a powerful tool for trademark owners. Unfortunately, incontestability is not granted as carefully as its power would counsel. Courts may misunderstand either the prerequisites for, or the meaning of incontestability, allowing trademark claimants to assert rights that they don’t actually have Incontestability needs clearer signals about what it is and when it is available. In the absence of serious substantive examination of incontestability at the PTO—which seems unlikely to materialize any time soon—changes designed to increase the salience of incontestability’s requirements to filers and to courts could provide some protection against wrongful assertions. Incontestability can only serve the trademark system if it is granted properly and consistently

Why the Customer Isn’t Always Right: Producer-Based Limits on Rights Accretion in Trademark

In this article the author responds to James Gibson’s article Risk Aversion and Rights Accretion in Intellectual Property Law, which offers valuable insights into the extra-judicial dynamics that have contributed to the seemingly unending expansion of copyright and trademark rights over the past few decades. Her response focuses on the trademark side of that expansion. The theoretical basis for granting trademark rights is that, if consumers perceive that a mark or other symbol indicates that a single source is responsible for a product or service—whether through physical production, licensing, sponsorship, or other approval—then the law should give effect to that consumer perception. Trademark rights thus protect consumers from deception and producers from unfair competition. When it comes to expansive rights claims, trademark’s dual nature is its strength: core trademark doctrines recognize the legitimate interests of producers as limits on the licensing-based rights accretion that a pure consumer protection theory could justify

Gone in Sixty Milliseconds: Trademark Law and Cognitive Science

Trademark dilution is a cause of action for interfering with the uniqueness of a trademark. For example, consumers would probably not think that Kodak soap was produced by the makers of Kodak cameras, but its presence in the market would diminish the uniqueness of the original Kodak mark. Trademark owners think dilution is harmful but have had difficulty explaining why. Many courts have therefore been reluctant to enforce dilution laws, even while legislatures have enacted more of them over the past half century. Courts and commentators have now begun to use psychological theories, drawing on associationist models of cognition, to explain how a trademark can be harmed by the existence of similar marks even when consumers can readily distinguish the marks from one another and thus are not confused. Though the cognitive theory of dilution is internally consistent and appeals to the authority of science, it does not rest on sufficient empirical evidence to justify its adoption. Moreover, the harms it identifies do not generally come from commercial competitors but from free speech about trademarked products. As a result, even a limited dilution law should be held unconstitutional under current First Amendment commercial-speech doctrine. In the absence of constitutional invalidation, the cognitive explanation of dilution is likely to change the law for the worse. Rather than working like fingerprint evidence--which ideally produces more evidence about already-defined crimes--psychological explanations of dilution are more like economic theories in antitrust, which changed the definition of actionable restraints of trade. Given the empirical and normative flaws in the cognitive theory, using it to fill dilution\u27s theoretical vacuum would be a mistake

The Eye Alone Is the Judge: Images and Design Patents

Design patents are an area of intellectual property law focused entirely on the visual, unlike copyright, patent, trademark, trade secret, or the various sui generis protections that have occasionally been enacted for specific types of innovation. Judges and lawyers in general are highly uncomfortable with images, yet design patents force direct legal engagement with images. This short piece offers an outsider’s view of what design patent law has to say about the use of images as legal tools, why tests for design patent infringement are likely to stay unsatisfactory, and what lessons other fields of intellectual property, specifically copyright, might take from design patent

Rules of Engagement

Why does the law treat engagement rings differently from other gifts? The answer is rooted in a history in which courts generally entertained litigation over broken engagements. As legislatures slowly abolished actions for breach of promise to marry in the early and middle decades of this century, on the grounds that such actions were inconsistent with modem understandings of love and marriage, one potential fact pattern for successful plaintiffs emerged: the case in which a man sues a woman for the return of his engagement gifts. The history and logic of this body of law-the rules of engagement invite examination

Looking at the Lanham Act: Images in Trademark and Advertising Law

Words are the prototypical regulatory subjects for trademark and advertising law, despite our increasingly audiovisual economy. This word-focused baseline means that the Lanham Act often misconceives its object, resulting in confusion and incoherence. This Article explores some of the ways courts have attempted to fit images into a word-centric model, while not fully recognizing the particular ways in which images make meaning in trademark and other forms of advertising. While problems interpreting images are likely to persist, this Article suggests some ways in which courts could pay closer attention to the special features of images as compared to words

It Depends on What the Meaning of False is: Falsity and Misleadingness in Commercial Speech Doctrine

While scholarship regarding the Supreme Court\u27s noncommercial speech doctrine has often focused on the level of protection for truthful, non-misleading commercial speech, scholars have paid little attention to the exclusion of false or misleading commercial speech from all First Amendment protection. Examining the underpinnings of the false and misleading speech exclusion illuminates the practical difficulties that abolishing the commercial speech doctrine would pose. Through a series of fact patterns in trademark and false advertising cases, this piece demonstrates that defining what is false or misleading is often debatable. If commercial speech were given First Amendment protection, consumer protection and First Amendment protection would be at odds. Rebutting the idea that constitutionally protected commercial speech could effectively address consumer abuses through fraud statues and would not be offensive to the First Amendment, the piece explains that subjecting commercial speech to First Amendment scrutiny would almost completely contract the scope of false advertising law and erode consumer protection. The piece concludes that while excluding commercial speech from constitutional protection has real costs, we are better off in a system that regulates false and misleading commercial speech without heightened First Amendment scrutiny