Session IV –
Subject Matter and Limitations
• Rebecca
Tushnet
Drassinower defines trademark as the right to completely
control the meaning of a mark as applied to a good or service: radically
unidirectional, like a one-way traffic sign, and a trademark is not and should
not be that! Government (one-way sign)
versus corporate (they’d like you to think that). Book says: TM is not an invitation requesting
a response/dialogue. But I think that’s
another slippage between the work and the copy, in Mark Rose’s terms. In a sense, you’re not invited to modify a
particular copy of a book even if you’re invited to engage in a dialogue. To the extent that the invitation is a
commercial one in the TM sense, that’s ok.
We’re allowed to talk about a Mickey Mouse operation, or a
Cadillac health plan. Genericide occurs
when people talk back. Urban white
Englishpeople using Burberry; African-Americans adopting Timberlakes. This overstatement is natural because he is
trying to find a way to distinguish © from TM, and without a strong conception
of influence on purchasing decisions—aka
materiality—TM doesn’t have the kind of core that can be identified and
distinguished from ©, since it is indeed about communication between producers
and consumers.
When doubt arises as to whether it’s an indicator of source,
Drassinower says, TM fails—but can still be valid and also part of a
conversation.
Relatedly, Drassinower says: A trademark addresses others as
consumers rather than speakers. But
self-understanding of marketers is now as TMs as branding strategy—intent is
absolutely to address them as speakers, to penetrate their consciousness, to
interact w/them on Twitter.
First Amendment concept: consumers and speakers are the same
people. Once we give corporate speakers protection, it becomes harder and
harder to distinguish speaking from selling things—a particular kind of
conduct. This is something that needs to
be addressed in 1A doctrine more generally.
• Mark
McKenna
By definition TM is an invitation to respond; whether it
is/functions as a TM depends entirely on how consumers respond.
Striking resemblance b/t using a © work as a work (his
concept of infringement) and the concept of use of a mark as a mark. TM rights aren’t in gross; they are relational, rights
to use in a particular setting. Copying as such is not infringement unless it
has a certain kind of effect. Once you define a TM that way it’s easy to work
out what infringement must be. © too, to
Drassinower, isn’t a right in gross. So
there’s less need to resist property than you think.
Lessons from TM: there’s always been a TM use requirement;
the problem is you immediately descend into addit’l Qs. From whose perspective
do you evaluate whether there is a TM use? Is it based on consumer perception,
or inherent in the nature of the use. That relates to what kind of evidence
you’d want. Au-tomotive Gold:
keychains made from car symbols aren’t being used as TM, D says, we’re using it
ornamentally—court can’t wrap its head around that idea. No conversation in the
case about how you would know it’s a
TM use.
Drassinower makes a similar move: to infringe is to use a
work in a particular way. How will a judge know whether a use has been a use as
a work? Evidence of consumers or
not? TM use ground to a halt b/c courts
couldn’t figure out how to apply it—just collapsed into likely confusion. If it’s perceived from viewers’ perspective,
are you just asking whether there’s substantial similarity? Is there a difference
between non-use and non-infringement?
TM law also expanded during the same time and its growth at
least coincided with if wasn’t caused by massive rhetoric shift to consumer
protection—interesting question about what kinds of rhetoric bound rights and
which enable their expansion. Could we say something similar about certain
instrumentalist language in ©?
• Pam
Samuelson
Charmed by the book too; thinks it accounts for maybe 55% of
© as we know it. Good identification of
types of copying that aren’t copying that © law should be worried about. But reproduction may not ever really harm an
author. What harms authors is public dissemination, distribution,
communication. That suggests that your regime only requires one exclusive
right: dissemination to the public. Maybe
that also means that © only ought to attach on publication.
One benefit: wouldn’t need as many exceptions.
Moral rights: accept a moral right of attribution but not
integrity under this view? Also related
to transfers—authors may be unhappy with fate after transfers. Nadine Gordimer: swore off licensing after
one work was mangled in movie version.
Of course, under Drassinower’s modality, she has no right to say
anything b/c no derivative works right. Does she have a right to a
disclaimer? She doesn’t think the
reproduction right is totally overlapping w/ deriv works right, though Nimmer
does—still need to answer the Q about the scope of the right that gets to be
infringed; what should be done w/nonliteral infringements?
Final issue: secondary liability is probably the biggest
deal in © right now, and she’s not sure what happens to it in Drassinower’s
theory.
Disagrees w/his interpretation of Baker v. Selden: even if you could find expression in forms Selden
published, someone using that to keep accounting books would not be an
infringer; we agree on that, and Mrs. Selden was trying to make everyone using
the accounting forms pay. Not w/in the
scope of ©. Where we disagree: Baker was speaking Selden’s forms. He had a book
in competition w/Selden. The compelled
speech issue doesn’t work here. The SCt
didn’t just let off all the users of the forms, but also let Baker off—the
second person gets to utter the speech as a necessary instance of using the system.
McKenna: in TM, you often have the difficulty that consumers
understand things differently—which group of consumers wins? Functionality has
an answer to that—if it’s doing something other than indicating source, that
wins. You’ll have the same Q here with people doing various things to the work.
Drassinower: didn’t mean to say that you can’t speak about
the TM. Not completely controlled—only
controlled as indicator of source. That
is the subject matter of the right, and so loss of control of that meaning is
loss of the TM. The harm at issue is
paradigmatically confusion—the right to control the meaning is to have oneself
as the source (of course successful infringement leaves that meaning intact!). The reason I need it is to characterize © as
having something to do with dialogue, juxtaposed with something communicative
but not dialogic. Consumer may or may
not be a speaker, but passively receives.
The activity of consumer is distinct from response of another author.
McKenna: the specificity of TM is inviting a particular kind
of response b/c of the nature of the communication—purchase related.
RT: If you want something that’s communicative and
unidirectional, how about the law itself? Traffic laws, the police officer—they
are communicating but not inviting dialogue.
Drassinower: it would be clearer if I granted that the
audience/consumer is not passive. The exchange of information b/t purchaser and
seller is in the context of sale.
Silbey: difference b/t © and TM is also evidenced by the
durational rules of each.
DiCola: Katy Perry Left Shark example: it’s the audience
that made the meaning; some kind of dialogue is happening between producers and
consumers. Language of value might be
helpful too: the audience made the meaning.
Drassinower: interesting question about role of substantial
similarity: audience issues.
Silbey: not much seems to be left of derivative work or even
substantial similarity after the book’s theory.
Samuelson: which leads us to the point that the book doesn’t
leave us with much idea of what the boundary would be.
Debate b/t Samuelson and Drassinower over what Baker stands for. Samuelson: Baker was using the forms to
communicate; he wasn’t a user of the forms. He was using the forms to
communicate his own competing book/explanation of the system.
Drassinower: use as part of system is devoid of liability—but
according to my theory they could be infringed by use of the forms to explain
the system in another publication. And
he interprets Baker to say that by
its own terms. Samuelson says he’s
fastening on a single phrase and not looking at the cases that follow it and
the overall context of the case.
DiCola: language of the case has some equivocal moments, but
the fact that Baker published a book undermines the distinction you’re trying
to draw, because he still won. Baker v. Selden is about competition—it’s
making a decision about market structure for accounting books.
RT: Then couldn’t you see Baker as a secondary liability case, if it’s about competition to
provide these forms as well as the system/its explanation? Which goes to Mark McKenna’s concerns about
what counts as © use under Drassinower’s system.
Gordon: even if Baker
doesn’t align with its historical explanation, Congress enshrined the
distinction in its building/use distinction in §113—building a described thing
isn’t infringement. Leg. history: a drawing
of a car = no right over the actual car.
Baker stands for limitations
on copyrightability and limitations on scope of rights, enshrined in statute.
Heymann: consider the protests by musicians who don’t like
use of their music in political campaigns: they consider it compelled speech,
but they don’t own the ©. This harm
sounds more like defamation. Is
compelled speech necessarily tied to ©?
The same harm happens in other ways through works.
Sprigman: design patent—typefaces—aren’t these speech too,
subject to the same compelled speech objections as paintings? If art is speech, isn’t industrial design
speech?
Drassinower: use as tools v. use as works: Google Books—use as
tools distinction is in Baker and it
can help answer Google and other products. So use of the toaster as a toaster
would be ok.
Sprigman: A speech focused © law without adopting the 1A’s
definition of speech?
Drassinower: Yep (and sensibly so, I think).
Samuelson: can’t conceive of a use in which Baker’s use of
the Selden forms would be infringing. Your reading is about dicta. Otherwise Baker would be an infringer.
Also, the distinction between patent and copyright isn’t as
sharp as we’d all like. One can engineer a document; both inventors and authors
think and behave in highly similar ways. The question of what’s protectable in
a computer program must be addressed even if you take it out of ©. Notion of
authorial creativity and technological creativity doesn’t exhaust the realms of
creativity—authorship and invention as the two metaphors have trapped
us/distracted us.
Balganesh steps in to defend Drassinower’s view of Baker, given that the SCt called the
book of forms a “work” closer to the method than works usually are, making the
opinion contradictory.
Gordon: but that’s true of any method—an implementation will
be more like a method than like a novel.
Samuelson: The Ct
thought that useful arts were usually made of metal or stone; this one was
actually embodied in a writing, and it’s that the Court referenced when it said
that the useful art, even embodied in a book, was treated like the useful art
made of metal. [Then Gordon &
Samuelson discuss the role of merger in Baker—Samuelson
blames the Nimmer treatise for calling Baker
the origin of merger and then taking that as license to ignore the method of
operation etc. exclusions in the statute.]
Madison: In 1A the availability of alternatives is sometimes
used to justify a particular speech restriction—similar to how merger is
analyzed in ©.
Sprigman: Typeface: why not cover it? You’re proposing a
deep structure that unifies things within the subject matter of ©.
Drassinower: Doesn’t think fonts are act of authorship.
Sprigman: maybe you’re saying you want a hurdle before you
allow the © switch to be turned on.
Drassinower: my system has to say there are phenomena that
flip the © switch; there’s no domain distinction between mark, work, invention
without one.
Sprigman: my domain distinction would be need for incentive:
we’re not living in a font-free hellscape.
McKenna: you’re having the conversation about fonts b/c it
seems to you that they might fit the contours of what’s proposed (you’re not having
the conversation about mousetraps), and that suggests you’re agreeing that’s
the right question.
Drassinower: agrees.
Rebecca Curtin: if we used this language to talk to the
public, would that be less chilling of uses that we think are fair?
Drassinower: hopes that’s right—part of what he was trying
to do. If this were the grammar, instead
of value, it would undo the suspicion of copying.
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