Rebecca Tushnet

Frank Stanton Professor of the First Amendment

Hauser 520

617-496-5899

Assistant: Andrew Matthiessen / 617-998-1476

Biography

Rebecca Tushnet is a professor of law at Georgetown. After clerking for Chief Judge Edward R. Becker of the Third Circuit and Associate Justice David H. Souter on the Supreme Court, she practiced intellectual property law at Debevoise & Plimpton before beginning teaching. Her publications include “Worth a Thousand Words: The Images of Copyright Law” (Harvard L. Rev. 2012); “Gone in 60 Milliseconds: Trademark Law and Cognitive Science” (Texas L. Rev. 2008); and “Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It” (Yale L.J. 2004). Her work currently focuses on copyright, trademark and false advertising law. Her blog, at tushnet.blogspot.com, has been on the ABA’s Blawg 100 list of top legal blogs for the past three years. Professor Tushnet helped found the Organization for Transformative Works, a nonprofit dedicated to supporting and promoting fanworks, and currently volunteers on its legal committee. She is also an expert on the law of engagement rings.

Areas of Interest

Rebecca Tushnet, Copyright Law, Fan Practices, and the Rights of the Author, in Fandom: Identities and Communities in a Mediated World (Jonathan Gray, Cornel Sandvoss & C. Lee Harrington eds., 2nd ed. 2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Book
Rebecca Tushnet, Raising Walls Against Overlapping Rights: Preemption and the Right of Publicity, 92 Notre Dame L. Rev. 1539 (2017).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
By comparing how preemption and First Amendment law have used purposive approaches to limit the right of publicity, we can see something about how boundary work in intellectual property law (IP) is done—badly, usually, with justifications that aren’t consistent or that assume that other regimes work differently than they actually do. One improvement would be to embrace categorical approaches, rather than unpredictable case-by-case balancing; both preemption and First Amendment doctrines can lend themselves to this approach. Another improvement would be to think of the First Amendment as an intellectual property regime of its own, one with general preemptive power.
Rebecca Tushnet, Architecture and Morality: Transformative Works, Transforming Fans, in Creativity Without Law: Challenging the Assumptions of Intellectual Property 171 (Kate Darling & Aaron Perzanowski eds., 2017).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Networked Society
,
Digital Property
,
Information Commons
Type: Book
Rebecca Tushnet, Intellectual Property as a Public Interest Mechanism, in The Oxford Handbook of Intellectual Property Law (Rochelle Dreyfuss & Justine Pila eds., 2017).
Categories:
Property Law
,
Discrimination & Civil Rights
Sub-Categories:
Public Interest Law
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Book
Abstract
This chapter describes the principal arguments about intellectual property rights as mechanisms for promoting the public interest, as opposed to particular private interests. Public interest arguments typically feature in balancing accounts of intellectual property rights that evince concern for the distribution of benefits as well as for the production of new works or inventions. Public interest rationales also often feature in justifications both for the rights themselves and for limitations or exceptions to those rights when private control of an intellectual resource would not promote the general welfare. The chapter considers patents, copyright, trademarks, and related rights, including the right of publicity. It concludes by examining various challenges faced by public interest accounts.
Rebecca Tushnet, Registering Disagreement: Registration in Modern American Trademark Law, 130 Harv. L. Rev. 867 (2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar) marks is broken. Courts too readily find too many acts to be infringing even when they’re harmless or actually useful to consumers. Trademark practitioners, meanwhile, while often quite approving of broad interpretations of trademark law, widely recognize that our trademark registration system has significant practical problems. What we haven’t done is try to unite concerns over the expansion of trademark rights with concerns over the registration system and explain their relationship to each other. Registration offers some of the most challenging puzzles in trademark law. Consider: If the mark REDSKINS for a football team is disparaging and its trademark registration therefore invalid, can trademark law nonetheless protect the team against unauthorized uses of the term? This question became more than theoretical when a district court recently upheld the invalidation of the REDSKINS registrations, a ruling now on appeal and likely headed to the Supreme Court. Or suppose the PTO determines that, in the abstract, an applied-for trademark is likely to cause confusion with another previously registered mark. If the applicant decides to use the mark anyway, without a registration, should the PTO’s determination bind a federal court asked to determine whether the new mark, as actually used, causes confusion with that previously registered mark? The Supreme Court just decided this issue in a way that generated large-scale uncertainty about the new relationship between registration and infringement liability. These questions, and a number of others, highlight the need for renewed attention to trademark registration as such. Registration provides opportunities to limit trademark’s current structurelessness. Specifically, registration works best in a system that doesn’t aim to search out and extirpate every possible instance of confusion, instead recognizing multiple reasons that we might avoid fact-intensive confusion inquiries and either ban or allow certain market behaviors. Moreover, maintaining the registration system requires the investment of substantial government and private resources, which is currently almost irrelevant at the enforcement stage. Applicants and the PTO spend much time and effort crafting the equivalent of an exquisitely detailed origami crane; rather than considering the details, courts then ask the equivalent of “is this paper folded?” and move on. Not only is this a waste of resources, but it also leads courts to misunderstand the proper scope of a registration. There are a number of changes, ranging from small tweaks to sweeping statutory reforms and the rejection of the Supreme Court’s ahistorical conclusion that registration is a matter of factual accident rather than an important distinction between types of marks, that could improve the law to the benefit of trademark owners and nonowners alike.
Rebecca Tushnet, Worth a Thousand Words: The Images of Intellectual Property Law (Oxford Univ. Press forthcoming 2017).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Book
Rebecca Tushnet, The First Amendment Walks into a Bar: Trademark Registration and Free Speech, Notre Dame L. Rev. 381 (2016).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
This Essay analyzes the First Amendment arguments against §2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. Ultimately, given the differences — or lack thereof — between disparagement and other bars in the statute, I conclude that §2(a) is generally constitutional as a government determination about what speech it is willing to approve, if not endorse. If the Supreme Court disagrees, it will face a difficult job distinguishing other aspects of trademark law. And these difficulties signal a greater problem: the Court has lost touch with the reasons that some content-based distinctions might deserve special scrutiny. Often, perfectly sensible and by no means censorious regulations that depend on identifying the semantic content of speech would fall afoul of a real application of heightened scrutiny, to no good end.
Rebecca Tushnet, Fair Use's Unfinished Business, 15 Chi.-Kent J. Intell. Prop. 399 (2016).
Categories:
Property Law
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
,
Intellectual Property Law
,
Networked Society
,
Digital Property
Type: Article
Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff & Rebecca Tushnet, Open Source Property: A Free Casebook (2016).
Categories:
Legal Profession
,
Property Law
Sub-Categories:
Legal Education
Type: Book
Rebecca Tushnet, The Indian Arts and Crafts Act: The Limits of Trademark Analogies, in Indigenous Intellectual Property: A Handbook of Contemporary Research (Matthew Rimmer ed., 2015).
Categories:
Discrimination & Civil Rights
,
Property Law
Sub-Categories:
Native American & Tribal Law
,
Intellectual Property - Patent & Trademark
Type: Book
Rebecca Tushnet, Content, Purpose, or Both?, 90 Wash. L. Rev. 869 (2015).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
Type: Article
Abstract
Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners’ authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative “purpose” is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay.
Rebecca Tushnet, The Romantic Author and the Romance Writer: Resisting Gendered Concepts of Creativity, in Diversity in Intellectual Property: Identities, Interests, and Intersections 294 (Irene Calboli & Srividhya Ragavan eds., 2015).
Categories:
Property Law
,
Technology & Law
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Intellectual Property - Copyright
,
Intellectual Property Law
,
Networked Society
,
Digital Property
,
Information Commons
Type: Book
Betsy Rosenblatt & Rebecca Tushnet, Transformative Works: Young Women's Voices on Fandom and Fair Use, in eGirls, eCitizens: Putting Technology, Theory and Policy into Dialogue with Girls’ and Young Women’s Voices 385 (Jane Bailey & Valerie Steeves eds., 2015).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Digital Property
,
Intellectual Property Law
Type: Book
Abstract
Media fandom is a worldwide cross-cultural phenomenon. Although fandom as a concept has far-reaching and diverse historical roots, this chapter focuses on a particular variety of media fandom that includes as a significant focus the creation of “fanworks...
Max Weinstein, Melanie B. Leslie, David J. Reiss, Joseph W. Singer & Rebecca Tushnet, Brief for The Legal Services Center of Harvard Law School and Law Professors as Amici Curiae Supporting Appellee, Montgomery County, Pennsylvania Recorder of Deeds v. Merscorp Inc., 795 F.3d 372 (2015) (No. 14-4315).
Categories:
Property Law
Sub-Categories:
Real Estate
Type: Other
Abstract
MERS represents a major departure from and grave disruption of recording practices in counties such as Montgomery County, Pennsylvania, that have traditionally ensured the orderly transfer of real property across the country. Prior to MERS, records of real property interests were public, transparent, and provided a secure foundation upon which the American economy could grow. MERS is a privately run recording system created to reduce costs for large investment banks, the “sell-side” of the mortgage industry, which is largely inaccessible to the public. MERS is recorded as the mortgage holder in traditional county records, as a “nominee” for the holder of the mortgage note. Meanwhile, the promissory note secured by the mortgage is pooled, securitized, and transferred multiple times, but MERS does not require that its members enter these transfers into its database. MERS is a system that is “grafted” onto the traditional recording system and could not exist without it, but it usurps the function of county recorders and eviscerates the system recorders are charged with maintaining. The MERS system was modeled after the Depository Trust Company (DTC), an institution created to hold corporate and municipal securities, but, unlike the DTC, MERS has no statutory basis, nor is it regulated by the SEC. MERS’s lack of statutory grounding and oversight means that it has neither legal authority nor public accountability. By allowing its members to transfer mortgages from MERS to themselves without any evidence of ownership, MERS dispensed with the traditional requirement that purported assignees prove their relationship to the mortgagee of record with a complete chain of mortgage assignments, in order to foreclose. MERS thereby eliminated the rules that protected the rights of mortgage holders and homeowners. Surveys, government audits, reporting by public media, and court cases from across the country have revealed that MERS’s records are inaccurate, incomplete, and unreliable. Moreover, because MERS does not allow public access to its records, the full extent of its system’s destruction of chains of title and the clarity of entitlements to real property is not yet known. Electronic and paper recording systems alike can contain errors and inconsistencies. Electronic systems have the potential to increase the accessibility and accuracy of public records, but MERS has not done this. Rather, by making recording of mortgage assignments voluntary, and cloaking its system in secrecy, it has introduced unprecedented and perhaps irreparable levels of opacity, inaccuracy, and incompleteness, wreaking havoc on the local title recording systems that have existed in America since colonial times.
Rebecca Tushnet, Free to Be You and Me? Copyright and Constraint, 128 Harv. L. Rev. F. 125 (2015)(In response to Joseph P. Fishman, Creating Around Copyright, 128 Harv. L. Rev. 1333 (2015).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
Joseph P. Fishman’s Creating Around Copyright advances a provocative thesis: some restrictions on creativity can spur the development of additional creative solutions, and (some level of) copyright might be one of those restrictions. If Picasso was right that “forcing yourself to use restricted means is the sort of restraint that liberates invention,” then being forced by law to use restricted means might do the same thing, ultimately leading to more varied and thus more valuable works. At the outset, it’s important to know the baseline against which we ought to evaluate Fishman’s claims. Most copyright restrictionists, of whom I count myself one, don’t want to eliminate all copyright law. Fishman’s argument is directed at creators who want to take an existing work and do something with it — incorporate parts of it into a new creative work or make a derivative work based on it. Because the question is the proper scope of copyright as applied to these works, the comparison should not be to a world without copyright, but should instead focus on the marginal effects of expanding or contracting copyright’s definitions of substantial similarity and derivative works. Once the question is properly framed, I have concerns about the major analogies Fishman uses — patent law and experimental evidence about other types of constraints on creativity — as well as his model of the rational creator.
Rebecca Tushnet, A Mask that Eats into the Face: Images and the Right of Publicity, 38 Colum. J.L. & Arts 157 (2015).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
Type: Article
Abstract
In their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual and audiovisual media, particularly comics and video games. These problems show up both in First Amendment defenses and in copyright preemption analysis. The possible arguments one might offer for treating images differently are insufficient to justify this disparity. The Article concludes that, absent the distortion produced by images, the right of publicity would properly be understood as sharply limited.
Rebecca Tushnet, COOL Story: Country of Origin Labeling and the First Amendment, 70 Food & Drug L.J. 25 (2015).
Categories:
Constitutional Law
,
Health Care
Sub-Categories:
First Amendment
,
Food & Drug Law
Type: Article
Eric Goldman & Rebecca Tushnet, Self-Publishing a Casebook Benefited Our Readers -- And Us, 11 Wash. J.L. Tech. & Arts 25 (2015).
Categories:
Legal Profession
Sub-Categories:
Legal Education
,
Legal Scholarship
Type: Article
Abstract
Self-publishing our electronic casebook, Advertising and Marketing Law: Cases & Materials, wasn’t some grand ambition to disrupt legal publishing. Our goal was more modest: we wanted to make available materials for a course we strongly believe should be widely taught in law school. Electronic self-publishing advanced that goal in two key ways. First, it allowed us to keep the price of the materials low. Second, we bypassed gatekeepers who may have degraded the casebook’s content and slowed the growth of an advertising law professors’ community.
Rebecca Tushnet, Stolen Valor and Stolen Luxury, in The Luxury Economy and Intellectual Property: Critical Reflections 121 (Haochen Sun, Barton Beebe & Madhavi Sunder eds., 2015).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Book
Abstract
This chapter challenges the constitutionality in the U.S. of trademark doctrines such as anti-dilution and post-sale confusion law that suppress non-false speech. It draws a compelling connection to U.S. v. Alvarez, the Supreme Court case that found unconstitutional the Stolen Valor Act, a law which criminalized the act of falsely representing oneself as the recipient of any U.S. military decoration or medal. The Court ruled that the Act's failure to require any showing of harm beyond the falsity of the representation itself rendered the law unconstitutional.
Rebecca Tushnet, What's the Harm of Trademark Infringement?, 49 Akron L. Rev. 627 (2015).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
Presented at the Oldham 2016 Annual Lecture at the University of Akron School of Law. Over the course of the twentieth century, judges came to accept trademark owners’ arguments that any kind of consumer confusion over their relationship to some other producer caused them actionable harm. Changes in the law of remedies, however, have recently led some courts to question these harm stories. This Article argues for even more attention to trademark’s theories of harm; a clear-eyed look at the marketing literature, as well as the facts of particular cases, indicates that confusion about non-competing products is often harmless.
Rebecca Tushnet, The Yes Men and The Women Men Don't See, in A World without Privacy: What Law Can and Should Do? 83 (Austin Sarat ed., 2014).
Categories:
Technology & Law
Sub-Categories:
Information Privacy & Security
Type: Book
Rebecca Tushnet & Eric Goldman, Advertising and Marketing Law: Cases and Materials (CreateSpace 2nd ed. 2014).
Categories:
Legal Profession
,
Property Law
,
Technology & Law
Sub-Categories:
Legal Education
,
Intellectual Property - Copyright
,
Property Rights
,
Intellectual Property - Patent & Trademark
,
Communications Law
Type: Book
Abstract
This is a casebook on advertising and marketing law. Due to the length of the book (1,400 pages in total), we have broken the book into 2 volumes.: https://www.createspace.com/4953960; https://www.createspace.com/5001930.
Rebecca Tushnet, More than a Feeling: Emotion and the First Amendment, 127 Harv. L. Rev. 2392 (2014).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
New York Times Co. v. Sullivan remains a foundational case even as the First Amendment issues occupying the courts today have significantly changed. Modern speech regulations can take many forms; the “new school” Jack Balkin identifies has supplemented, rather than replaced, the “old school.” But the old school has also undergone some renovations. Rather than governing the New York Times, many of today’s trickiest speech regulations target speakers who aren’t traditional publishers, which makes it easier to treat these regulations as fringe cases and to overlook some deep contradictions in current doctrines. Here, I wish to examine one aspect of Sullivan, which is its requirement of a false factual statement, and the relationship of the falsity requirement to ideas about harm and emotion. Disparaging speech is usually harmful because it triggers negative emotions in the audience, causing other people to treat the victim differently. First Amendment law has generally been leery of government attempts to change the marketplace of emotions — except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law. Part I of this Symposium contribution will examine the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. After Sullivan, statutes and common law rules that authorize one person to control too much of another person’s speech can violate the First Amendment. Another key aspect of Sullivan is that only false factual statements can defame, not mere derogatory opinions. Yet trademark law allows exactly the kind of control over nonfactual, emotional appeals that modern defamation law precludes. These two bodies of law thus stand in contrast, one constrained by the First Amendment to cover only facts and the other allowed to reach much further into the dark heart of emotional manipulation. Part II turns to compelled speech, and again finds two contrasting regulations united by their emotional mechanisms, but divided by their constitutional fates. Courts have struck down mandatory smoking warnings in visual form, but have approved mandatory abortion disclosures and ultrasound requirements that operate in the same emotional register. Regardless of whether the regulation involves a direct government mandate or private parties claiming competing rights to influence the audience’s emotional state, then, current First Amendment law doesn’t have a consistent account of the proper role of emotion in speech regulation. Part III suggests that the contradictions of current doctrine could be ameliorated by less distrust of emotion and more acceptance that where information is being conveyed, emotion will regularly follow. Our focus then should not be on whether deployment of emotion is “manipulative,” but whether it is part of a discriminatory or factually misleading regulation. When the government regulates speech, the regulation will generally have an emotional component because human thought is emotional. Objections to emotion-based regulations should not be based on the obviousness of that component. Rather, the acceptability of the government’s aim should be the guide, especially when nongovernmental speakers are free to use emotional appeals to press their own cases. The government may be required to be neutral as between classes of private speakers, which Sullivan requires and which I will argue should be the case with respect to trademark law. It is not required to be neutered. When the government can otherwise constitutionally mandate disclosure, the fact that these disclosures have emotional resonance is not an independent constitutional barrier.
Rebecca Tushnet, Make Me Walk, Make Me Talk, Do Whatever You Please: Barbie and Exceptions, in Intellectual Property at the Edge: The Contested Contours of IP 405 (Rochelle Dreyfuss & Jane Ginsburg eds., 2014).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Book
Rebecca Tushnet, I’m a Lawyer, Not an Ethnographer, Jim: Textual Poachers and Fair Use, 2 J. Fandom Stud. 21 (2014).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
Henry Jenkins’ Textual Poachers (1992) remains an important text for many reasons. I will focus on its importance as a text that, while not in any way lacking in complexity, clearly and accessibly brings forth the positive aspects of fandom cultures and creativity. This is vital for very practical reasons: there are many institutions and copyright owners who believe that fandom should be owned – by them, and not by fans. In this context, Jenkins’ arguments form a key part of the case for continued, robust fair use doctrines that allow fans to make the things that they love to make.
Rebecca Tushnet, All of This Has Happened Before and All of This Will Happen Again: Innovation in Copyright Licensing, 29 Berkeley Tech. L.J. 1447 (2014).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
Type: Article
Abstract
Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action—along with the right to claim that unlicensed uses are infringing. In a world where licenses are readily and cheaply available, the argument will go, it is unfair not to get one. This development, copyright owners hope, will combat increasingly fair use–favorable case law. This article describes three key examples of recent innovations in licensing-like arrangements in the noncommercial or formerly noncommercial spheres—Getty Images’ new free embedding of millions of its photos, YouTube’s Content ID, and Amazon’s Kindle Worlds—and discusses how uses of works under these arrangements differ from their unlicensed alternatives in ways both subtle and profound. These differences change the nature of the communications and communities at issue, illustrating why licensing can never substitute for transformative fair use even when licenses are routinely available. Ultimately, as courts have already recognized, the mere desire of copyright owners to extract value from a market—especially when they desire to extract it from third parties rather than licensees—should not affect the scope of fair use.
Rebecca Tushnet, How Many Wrongs Make a Copyright?, 98 Minn. L. Rev. 2346 (2014) (In response to Derek Bambauer, Exposed, 98 Minn. L. Rev. 2025 (2014)).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Digital Property
,
Information Privacy & Security
,
Networked Society
,
Communications Law
Type: Article
Abstract
Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright—what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full of inconsistencies and exceptions does not justify such profound changes. Bambauer’s true target is § 230 of the Communications Decency Act, which protects online intermediaries from liability stemming from users’ violations of others’ privacy. Copyright claims are not subject to § 230, so his proposal hopes to force intermediaries to do more in revenge porn cases. But the case for requiring more from intermediaries to protect privacy should be made on its own merits, not by distorting copyright law.
Rebecca Tushnet, Judges as Bad Reviewers: Fair Use and Epistemological Humility, 25 Law & Literature 20 (2013).
Categories:
Government & Politics
,
Property Law
Sub-Categories:
Judges & Jurisprudence
,
Intellectual Property - Copyright
Type: Article
Abstract
The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a good fair use analysis. Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Through discussion of fan-made music videos, this short commentary shows how transformative uses routinely invite multiple interpretations, just as ‘original’ works do. As a result, a fair use analysis that insists on reducing works to single meanings will predictably fail in the aim of protecting transformative works that add new meanings or messages. The proper approach is epistemological humility: when reasonable audience members could discern commentary on the original work, a court should find transformation, even when other reasonable audience members could disagree.
Rebecca Tushnet, Performance Anxiety: Copyright Embodied and Disembodied, 60 J. Copyright Soc'y U.S.A. 209 (2013).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects. One key problem of performance from copyright’s perspective is how to identify the creative elements that make a work of performance original and protectable, as distinguished from elements that make it a work (a fixed artifact). A major variant of this question involves authorship: who is sufficiently responsible for a work of performance to be deemed its author, and thus its default owner? In a world where works require dozens and even hundreds of people to complete them, this question will often be difficult to answer while both respecting creativity and recognizing economic imperatives. Another set of questions involves whether there are ways to recognize performers’ creative contributions without contributing to copyright’s bloat, and how to assess claims of infringement in a performance context when the alleged copying isn’t exact. This article addresses these puzzles of performance, arguing that manageability rather than creativity is generally the basis for the rights allocations and distinctions copyright law makes. The recent controversy over the film Innocence of Muslims, along with other instances in which subjects of audiovisual works claimed copyright in those works, demonstrate the limited role played by creativity in copyright law.
Peter Decherney (with Rebecca Tushnet, Jessica Silbey & Bill Herman), Surveying Recent Scholarship on Fair Use: A Conversation, 52 Cinema J. 138 (2013).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
Decherney moderates a roundtable discussion on shifts in fair use and the specific implications for scholars, archivists, and media makers. Jessica Silbey, Rebecca Tushnet, Bill Herman, comment on the issues, focusing on three books on the debate: Kembrew McLeod and Peter DiCola's "Creative License," Patricia Aufderheide and Peter Jaszi's Reclaiming Fair Use," and William Patry's "How to Fix Copyright."
Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright Law, 125 Harv. L. Rev. 683 (2012).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
Copyright starts with the written word as its model, then tries to fit everything else into the literary mode. It oscillates between two positions on nontextual creative works such as images – either they are transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming both that the meaning of the image is so obvious that it admits of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being susceptible to discussion and analysis using words that there is no point in trying. The oscillation between opacity and transparency has been the source of much bad law. This Article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The Article then turns to persistent difficulties in assessing copyrightability and infringement for visual works. In assessing copyrightability, courts draw lines between artistic choice and mere reproduction of reality, but also treat the artist as a person with a special connection to reality who possesses a way of seeing that ordinary mortals lack. Infringement analysis repeats this doubling, using the representation/reality divide to separate protected elements of a specific work from unprotected ones while simultaneously insisting that works are indivisible gestalts. Current doctrine makes impossible and self-contradictory demands on factfinders. It should be replaced with a true “reproduction” right against exact or near-exact copying. Despite this radical proposal, much of my argument is critical and diagnostic. I therefore turn to more specific problems in authorship questions for multimedia works and fair use that highlight the instabilities in current approaches to nontextual works. Greater epistemic humility, recognizing that images make multiple meanings in multiple ways, could combat the judicial tendency to presume that images are nothing more than what they seem.
Rebecca Tushnet, The Eye Alone is the Judge: Images and Design Patents, 19 J. Intell. Prop. L. 409 (2012).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
,
Intellectual Property - Copyright
Type: Article
Abstract
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.
Rebecca Tushnet, Book Review: Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective (Mario Baigioli, Peter Jaszi & Martha Woodmansee eds., 2011), 2 The IP Law Book Rev., Sept. 2011, at 1.
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Rebecca Tushnet, Remix Nation, 54 Comm. ACM, Sept. 2011, at 22.
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
,
Digital Property
Type: Article
Abstract
Assessing the threat the anticircumvention provisions of the Digital Millennium Copyright Act pose for fair use.
Rebecca Tushnet, Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children, 85 Notre Dame L. Rev. 2133 (2011).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
,
Digital Property
,
Networked Society
Type: Article
Abstract
The article discusses a proposed exemption to the U.S. Digital Millennium Copyright Act (DMCA) in 2010 for the creation of mashup or remix videos comprised of previously released materials and music. The author examines the work of several artists, including Michael Newman, Luminosity, and Gianduja Kiss. In the author's opinion, the laws need to adapt to the changing cultures which embody transformative creations such as remix videos and songs.
Francesca Coppa & Rebecca Tushnet, How to Suppress Women's Remix, 77 Camera Obscura 131 (2011).
Categories:
Property Law
,
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Intellectual Property - Copyright
,
Intellectual Property Law
,
Digital Property
Type: Article
Abstract
Vidding is a thirty-year-old remix practice in which predominantly female media fans reedit television or film into music videos. Vidding is important not only as an art form in its own right but also as a subcultural — and often feminist — reinterpretation of and confrontation with mainstream media culture. The feminist manifestations of vidding range from the creation of deeply felt emotional odes to television and film, to the analytical teasing out and foregrounding of subtextual or secondary meanings, to bitingly critical engagements with the mainstream media's political failings. In all these cases, vids serve both to magnify and to aestheticize the audience's readings of the mass media. The three essays address different aspects of this practice and its surrounding culture. Francesca Coppa explores the historical and sociopolitical implications of a female-dominated art form that heavily utilizes technological tools and skills; Coppa and Rebecca Tushnet discuss the legal implications of vidding as a particularly gendered form of remix art and debate the ways in which its underground aesthetics have and have not mainstreamed alongside the rest of remix culture; and Kristina Busse and Alexis Lothian demonstrate the contentious relationships that can develop when fanvids enter the realm of academic discourse. All four authors are themselves fans and academics, practitioners and theorists who continually negotiate the artistic, political, legal, academic, and communitarian constraints we discuss in our essays. Rather than seeing those complex negotiations as a drawback, we suggest that these very tensions have created this culturally rich form. It is this complexity that makes vidding an enticing object for academic analysis, but even more so an important aesthetic and political contribution to feminist art and scholarship.
Rebecca Tushnet, Looking at the Lanham Act: Images in Trademark and Advertising Law, 49 Houston L. Rev. 861 (2011).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
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.
Rebecca Tushnet, Running the Gamut from A to B: Federal Trademark and False Advertising Law, 159 U. Pa. L. Rev. 1305 (2011).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
The Lanham Act bars trademark infringement and false advertising in nearly identical and often overlapping language. In some circumstances, courts have interpreted the two provisions in the same way, but in other areas there has been significant doctrinal divergence, often to the detriment of the law. This Article argues that each branch of the Lanham Act offers important lessons for the other. Courts should rationalize their treatment of implied claims, whether of sponsorship or of other facts; they should impose a materiality requirement, such that the only unlawful trademark and false advertising claims are those that actually matter to consumers; and in false advertising cases, they should recognize that competitors have sufficient interests to confer standing when the advertisers’false statements are doing harm, rather than imposing increasingly elaborate barriers to suit. The present practice of interpreting the same language in substantially different ways lacks justification and has the effect of promoting the interests of the most powerful companies, whether they are asserting claims of trademark infringement against smaller entities or defending themselves against false advertising claims by competitors.
Rebecca Tushnet, Scary Monsters: Hybrids, Mashups, and Other Illegitimate Children, 86 Notre Dame L. Rev. 2133 (2011).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
The article discusses a proposed exemption to the U.S. Digital Millennium Copyright Act (DMCA) in 2010 for the creation of mashup or remix videos comprised of previously released materials and music. The author examines the work of several artists, including Michael Newman, Luminosity, and Gianduja Kiss. In the author's opinion, the laws need to adapt to the changing cultures which embody transformative creations such as remix videos and songs.
Rebecca Tushnet, Towards Symmetry in the Law of Branding, 21 Fordham Intell. Prop. Media & Ent. L.J. 971 (2011).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
Companies sometimes want to abandon an old identity and rebrand with a new one. Trademark law probably does not have much to say about rebranding in itself. But we should be careful about how we think about rebranding and other undisclosed source relationships because, if not handled properly, law’s recognition of such techniques could end up reinforcing trademark owners’ ability to deter competition and control free speech.
Rebecca Tushnet, Attention Must Be Paid: Commercial Speech, User-Generated Ads, and the Challenge of Regulation, 58 Buff. L. Rev. 721 (2010).
Categories:
Constitutional Law
,
Technology & Law
,
Government & Politics
,
Consumer Finance
Sub-Categories:
Consumer Protection Law
,
First Amendment
,
Administrative Law & Agencies
,
Communications Law
Type: Article
Abstract
This Article examines the dynamics that drive advertisers to push into new formats, and the law’s ability to regulate them. I argue that it will remain possible, and constitutional, to identify advertising and subject it to prohibitions on false and misleading claims, even for ads in unconventional formats. The article also addresses the ways in which regulators were caught off-guard by these new formats. In particular, Section 230 of the Communications Decency Act, which frees online service providers and users from liability for content generated by other users, poses some unanticipated barriers to regulating advertising. Yet despite section 230’s provisions, regulators retain flexibility in many situations. The Article considers the Federal Trade Commission’s (“FTC”) recent revisions of its guides on testimonials and endorsements. The guidelines apply to bloggers and others who receive substantial benefits from advertisers in return for their endorsements. After exploring the First Amendment challenges posed by such situations, including questions that go to the heart of the justification for regulating commercial speech, I contend that neither section 230 nor sound policy require the FTC to ignore these new forms of communicating with potential purchasers.
Rebecca Tushnet, Hybrid Vigor: Mashups, Cyborgs, and Other Necessary Monsters, 6 ISJLP 1 (2010).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Digital Property
,
Intellectual Property Law
,
Information Commons
Type: Article
Abstract
Does remix matter? This brief comment addresses the critique of importance, arguing that remix culture as well as the popular/mass culture from which it springs are of vital importance to human flourishing, invoking Donna Haraway's concept of the cyborg to investigate the fluidity, dynamism, and monstrousness of remixes and remixers.
Rebecca Tushnet, I Put You There: User-Generated Content and Anticircumvention, 12 Vanderbilt J. Ent. & Tech. L. 889 (2010).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
,
Digital Property
Type: Article
Abstract
This Article discusses recent rulemaking proceedings before the Copyright Office concerning the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). During these proceedings, non-institutionally affiliated artists organized to assert their interests in making fair use of existing works, adding new voices to the debate. A proposed exemption for noncommercial remix video is justified to address the in terrorem effect of anticircumvention law on fair use. Without an exemption, fair users are subjected to a digital literacy test combined with a digital poll tax, and this regime suppresses fair use. The experience of artists (vidders) confronting the law illustrates both the perils of modern copyright lawmaking and the promise of greater artistic involvement and advocacy. Vidders and other fair users can use the rulemaking process to achieve at least partial access to the power of the law by forcing policymakers to confront the people whose speech is threatened by ever-greater copyright protection.
Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 Wm. & Mary L. Rev. 513 (2009).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
At the moment that “incentives” for creation meet “preferences” for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance—even overabundance—in creativity can help define the proper scope of copyright law, especially in fair use. I explore these ideas by examining how creators think about what they do. As it turns out, commercially and critically successful creators resemble creators who avoid the general marketplace and create unauthorized derivative works (fanworks). The role of love, desire, and other passions in creation has lessons for the proper aims of copyright, the meaning of fair use, and conceptions of exploitation in markets.
Rebecca Tushnet, Fighting Freestyle: The First Amendment, Fairness, and Corporate Reputation, 50 B.C. L. Rev. 1457 (2009).
Categories:
Constitutional Law
,
Consumer Finance
,
Property Law
,
Corporate Law & Securities
Sub-Categories:
Consumer Protection Law
,
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
There are three distinct groups who might want to engage in speech about commercial entities or to constrain those commercial entities from making particular claims of their own. Competitors may sue each other for false advertising, consumers may sue businesses, and government regulators may impose requirements on what businesses must and may not say. In this context, this Article will evaluate a facially persuasive but ultimately misguided claim about corporate speech: that because consumers regularly get to say nasty things about corporations under the lax standards governing defamation of public figures, corporations must be free to make factual claims subject only to defamation-type restrictions on intentionally false statements. The premise that this would further equality ignores the overall structure of advertising law, in which consumers cannot be equated to advertisers, competitors are already on equal footing with one another, and the government as regulator is not supposed to be on equal footing with anyone.
Rebecca Tushnet, Unfair Competition and Uncommon Sense, 95 Iowa L. Rev. Bull. 17 (2009)(A comment on Mark P. McKenna, Testing Modern Trademark Law’s Theory of Harm, 95 Iowa L. Rev. 63 (2009)).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Patent & Trademark
Type: Article
Abstract
This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But how did today’s theories of harm resulting from any kind of confusion, even confusion over unrelated goods, become “common sense” to judges, particularly when Mark Lemley asserts that modern Lanham Act jurisprudence represents “the death of common sense”? McKenna has traced the history of the harm argument in the courts, but figuring out exactly why that argument became persuasive—so persuasive, in fact, that courts now take it as factual beyond debate—is difficult. Common sense, often employed in legal reasoning, tends to hide its empirical and normative judgments in ways that make analysis difficult. McKenna, like other trademark restrictionists, tries to push back against today’s common sense with facts that will, as a whole, constitute a new (or even an old) common sense. His project limits trademark more tightly to protection against competition, with extensions only where necessary to avoid actual harm. The author briefly examines the role of common sense inferences, and how courts might deploy these inferences differently in trademark litigation.
Rebecca Tushnet, Gone in 60 Milliseconds: Trademark Law and Cognitive Science, 86 Tex. L. Rev. 507 (2008).
Categories:
Property Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
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's theoretical vacuum would be a mistake.
Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986 (2008).
Categories:
Constitutional Law
,
Property Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
,
Communications Law
Type: Article
Abstract
As Jerome Barron recognized in his classic article, the First Amendment rights of speakers and audiences must be evaluated in the contexts of their relationships to larger structures. To the extent that there is a right to speak or a right to hear, who is on the other side of that right? The system of free expression is not atomized, but pervasively structured by conduits such as television broadcasters and Internet service providers (“ISPs”). This article focuses on (potentially) harmful speech as it relates to claims for greater access to those conduits. Any effective proposal for access rights should deal with the recruitment of intermediaries to police and deter unlawful speech and the many and varied ways in which individual speakers will violate existing laws.
Rebecca Tushnet, Truth and Advertising: The Lanham Act and Commercial Speech Doctrine, in Trademark Law and Theory: A Handbook of Contemporary Research 294 (Graeme B. Dinwoodie and Mark D. Janis eds., 2008).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Book
Rebecca Tushnet, User-Generated Discontent: Transformation in Practice, 31 Colum J.L. & Arts 497 (2008).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Networked Society
,
Digital Property
,
Intellectual Property Law
Type: Article
Abstract
Fair use is the province of creators, not lawyers. That is the thrust of a number of initiatives designed to make fair use salient to ordinary people in their capacities as creators. Copyright myths and legends are, of course, widespread. What this paper focuses on, however, are organized or semi-organized attempts to articulate fair use principles, usually centered on the concept of transformativeness, from the perspective of individual creators who routinely expect to criticize, comment on, or just quote existing copyrighted materials as part of their new works. Usergenerated fair use principles can be informed by case law, but they are not limited by it. Reciprocally, nonlawyers’ concepts of transformativeness could enrich legal understandings of the appropriate boundaries of fair use.
Rebecca Tushnet, It Depends on What the Meaning of "False" Is: Falsity and Misleadingness in Commercial Speech Doctrine, 41 Loy. L.A. L. Rev. 227 (2007).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
While scholarship regarding the Supreme Court's 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.
Rebecca Tushnet, Copyright Law, Fan Practices, and the Rights of the Author, in Fandom: Identities and Communities in a Mediated World 60 (Jon Grey, Cornel Sandvoss & C.L. Harrington eds., 2007).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Book
Abstract
Fans of popular media who write stories about their favorite characters, draw pictures of them, and edit music videos reworking the original sources occasionally stop to think about whether what they are doing is legal under copyright law. Many fans assume that these creations...
Rebecca Tushnet, Creating in the Shadow of the Law: Media Fans and Intellectual Property, in 1 Intellectual Property and Information Wealth: Issues and Practices in the Digital Age 251(Peter K. Yu ed., 2007).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Networked Society
,
Digital Property
,
Intellectual Property Law
Type: Book
Rebecca Tushnet, Domain and Forum: Public Space, Public Freedom, 30 Colum. J.L. & Arts 597 (2007).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
Type: Article
Abstract
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, My Fair Ladies: Sex, Gender, and Fair Use in Copyright, 15 Am. U. J. Gender Soc. Pol'y & L. 273 (2007).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Feminist Legal Theory
,
Intellectual Property - Copyright
Type: Article
Abstract
By favoring sexualization over other types of critique, fair use doctrine systematically treats sex as especially oppositional and liberating, when in fact it has no monopoly on critique and no necessarily disruptive effect on a copyright owner's message. Still, adding overt sexuality to a work could challenge our ideas about the original, as well as proper sex and gender roles. Thus, this article does not argue against sexuality or transformativeness, but rather against facile acceptance of an equation between the two, particularly against the idea that other kinds of transformation deserve less fair use protection and are more likely to fall within a copyright owner's legitimate market. Gender and sexuality play varied roles in signaling criticism, defining markets, and establishing a work's place in cultural hierarchies. Fair use doctrine should pay attention to these things, not sexuality itself.
Rebecca Tushnet, Naming Rights: Attribution and Law, 2007 Utah L. Rev. 781.
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
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, Payment in Credit: Copyright Law and Subcultural Creativity, 70 L. & Contemp. Probs. 135 (2007).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Abstract
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 know less about the choices people make about copyright on a daily basis, especially when they are not working. Here, Tushnet 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. Among other things, she discusses some differences between fair use and fan practices, focused around attribution as an alternative to veto rights over uses of copyrighted works.
Rebecca Tushnet, Sight, Sound and Meaning: Teaching Intellectual Property with Audiovisual Materials, 52 St. Louis U. L.J. 891 (2007).
Categories:
Legal Profession
,
Property Law
Sub-Categories:
Legal Education
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
This short article addresses my experience using audiovisual materials from the Georgetown Intellectual Property Teaching Resources database. I use audiovisual materials extensively in class to allow students to see the subject matter of the cases rather than just reading verbal descriptions and enable them to apply the principles they read about to new, concrete examples. Many students in IP courses have special interests in music, film, or the visual arts, and the database allows me - and other teachers - to present materials that engage them. I have found that students are more willing to speak up in class when they can see or hear for themselves and can point to specific aspects of the underlying materials. I also briefly address the copyright question: should teachers worry about using digital materials in class? Fortunately, the available statutory exceptions are supportive of in-class teaching. Using images and sounds to illustrate litigated cases and hypotheticals is pedagogically valuable and legally justified.
Rebecca Tushnet, Trademark Law as Commercial Speech Regulations, 58 S. Carolina L. Rev. 737 (2007).
Categories:
Property Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
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 contribution to the symposium will explore 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, Why the Customer Isn't Always Right: Producer-Based Limits on Rights Accretion in Trademark, 116 Yale L.J. Pocket Part 352 (2007).
Categories:
Property Law
,
Consumer Finance
Sub-Categories:
Consumer Protection Law
,
Intellectual Property - Patent & Trademark
,
Intellectual Property - Copyright
Type: Article
Abstract
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.
Rebecca Tushnet, My Library: Copyright and the Role of Institutions in a Peer-to-Peer World, 53 UCLA L. Rev. 977 (2006).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Cooperation, Peer-Production & Sharing
,
Intellectual Property Law
,
Digital Property
,
Information Commons
,
Networked Society
Type: Article
Abstract
Today's technology turns every computer - every hard drive - into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school-affiliated libraries, which have special concerns that are not necessarily captured by an end-consumer-oriented analysis. Despite the promise that technology will empower individuals, we must recognize the crucial structural role of intermediaries that select and distribute copyrighted works. By exploring how traditional libraries are being affected by developments such as filesharing services, the iTunes Music Store, and Google's massive digitization project, this Article examines the implications of legal and technological changes that are mainly not directed at libraries, but are nonetheless vital to their continued existence.
Rebecca Tushnet, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, 114 Yale L.J. 535 (2004).
Categories:
Property Law
,
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
,
Digital Property
,
Intellectual Property Law
Type: Article
Abstract
Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a mechanism to protect such transformative uses. This Essay argues that the increasing centrality of transformativeness to fair use has made it easier for copyright owners to control all instances of ordinary copying. Yet pure copying also serves valuable First Amendment purposes, both for audiences and, less obviously, for speakers, for whom copying often serves interests in self-expression, persuasion, and participation.
Bruce Keller & Rebecca Tushnet, Even More Parodic Than the Real Thing: Parody Lawsuits Revisited, 94 Trademark Rep. 979 (2004).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
Type: Article
Abstract
An article focusing on a copyright decision initially may appear out of place in the pages of The Trademark Reporter®. Yet Campbell v. Acuff-Rose Music, Inc., in which the U.S. Supreme Court held that a parodic, transformative use of a copyrighted work, even if commercial, could qualify as a fair use, is quite significant for trademark lawyers. As a practical matter, parody cases increasingly involve copyright as well as trademark claims, so practitioners often encounter both within the same case. As a doctrinal matter, Campbell also has proved legally significant in trademark cases because the free-speech concerns underlying protection for parodies apply no matter what law is invoked against them. Campbell is thus a good illustration of the unexpected effects that Supreme Court decisions often have when the generalist Court tries its hand at the occasional intellectual property case.One of Campbell's most significant - and unsatisfying - effects has been to elevate parody as a favored form of literary or artistic comment and devalue satire. Several courts have since explicitly relied on the distinction between these two forms of humor to impose liability on those who have created the latter, even though the actual language from the Court's opinion counsels a more sensitive approach.This is a troubling trend, for at least two reasons. First, the distinction between parody and satire is too fine for courts (not generally recognized as great connoisseurs of humor) to make. Second, the parody/satire distinction simply is not responsive to the considerations that underline copyright law's fair use doctrine, including First Amendment values served by satires as well as parodies.This article sets forth the context in which the parody/satire distinction arose in Campbell, then examines how it has been applied in subsequent copyright, trademark, and right of publicity cases. Briefly stated, our review shows that factually similar copyright cases have reached wildly divergent results, which illustrates Campbell's analytical limits. Insofar as trademark law is concerned, the bias created in favor of parodies may well have made things worse by making secondary the only proper question in a trademark infringement case: whether a particular use is likely to cause consumer confusion. In recent right of publicity cases, by contrast, courts have steered away from the parody/satire distinction, but have not uniformly replaced it with a coherent analysis.
Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Campaign Finance Reform, Hate Speech and Pornography Regulation, and Telecommunications Regulation, 42 B.C. L. Rev. 1 (2001).
Categories:
Constitutional Law
,
Property Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
Type: Article
Abstract
Copyright raises real and troubling free speech issues, and standard responses to those concerns are inadequate. This Article aims to put copyright in the context of other free speech doctrine. Acknowledging the link between copyright and free speech can help determine the proper contours of a copyright regime that both allows and limits property rights in expression, skewing the content of speech toward change.
Rebecca Tushnet, Rules of Engagement, 107 Yale L.J. 2583 (1998).
Categories:
Civil Practice & Procedure
,
Banking & Finance
Sub-Categories:
Contracts
,
Economics
,
Torts
Type: Article
Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loy. L.A. Ent. L.J. 651 (1997).
Categories:
Property Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article

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