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    Emily C. & John E. Hansen Intellectual Property Institute - Twenty-Ninth Annual Conference, International Intellectual Property Law & Policy.

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    Federal law presumes that false advertising harms competition. Federal law also presumes that false advertising is harmless or even helpful to competition. Contradiction is not unknown to the law, of course. This contradiction, though, is acute. For not only are both regimes at issue designed to protect competition, but they are both enforced by the same agency: the Federal Trade Commission, which targets “unfair competition” through antitrust and consumer protection enforcement. Courts’ treatment of false advertising in antitrust cases makes no sense. While courts have reasonably evidenced concern that not all false advertising violates antitrust law, the remedy is not to abandon the false advertising/antitrust interface. Instead, the solution is to focus on the actors most likely to harm the market: monopolists and attempted monopolists. This Essay proposes an antitrust framework for false advertising claims. It introduces a presumption that monopolists engaging in false advertising violate antitrust law and a rebuttal if the false advertising is ineffective. The framework also applies to attempted monopolization by incorporating factors such as falsity, materiality, and harm inherent in false advertising law, along with competition-centered issues like targeting new market entrants. Antitrust has dismissed false advertising that entrenches monopoly power for too long. This Essay seeks to resolve the contradiction in the law by showing how false advertising threatens the proper functioning of markets. Such an approach promises benefits for false advertising law, antitrust law, and consumers.

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    "Trademark registration is useful in providing a record of when rights were acquired and over what symbols, it also provinces constructive notice of registrant’s rights. Registration presents issues when underlying rights are expanded through assertions in litigation, even when the rights are narrow on paper. A number of reforms to the registration process could address these problems: “use requirements, heightened distinctiveness requirements, and a version of prosecution history estoppel to discourage registrant manipulation of the difference between the rights-granting entity (the PTO) and the rights-enforcing entity (the courts).” The interdependency of rights and remedies necessarily means that any reform to the registration process needs to consider a balance of infringement and counterfeit deterrence with competition and market entry. As it stands, the current registration system focuses heavily on competition and market entry, with less thought given to infringement and counterfeit deterrence. This chapter explores ways to make registration beneficial for both the consumers and producers."

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    This is Chapter 19 of our Advertising and Marketing Law casebook, a chapter we are publishing only online. It takes a deeper look at how law regulates two specific advertising situations: (1) discriminatory advertising, principally in the housing context, and (2) political advertising.

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    The First Amendment was a dead letter for much of American history. Unfortunately, there is reason to fear it is entering a new period of political irrelevance. We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as these efforts mount, and the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question—when it comes to political speech in the twenty-first century, is the First Amendment obsolete?

  • Rebecca Tushnet, Brief of Copyright Scholars as Amici Curiae in Support of the Petitioner, Google LLC v. Oracle America, Inc., 18-956 (U.S., Jan. 10, 2020).

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    The fair use doctrine requires courts “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 577 (1994). The Federal Circuit’s rejection of a jury finding of fair use instead embraced a rigid approach that, as a matter of law, would bar any copying of code into a new program, even for a different platform, as non-transformative and unfair. To justify its ruling, the Federal Circuit abandoned a consensus in the lower courts about the broad scope of fair use when dealing with highly functional software elements. It made key mistakes about the fair use factors and their balancing, including inflating the relevance of commerciality, applying an erroneous “no more than necessary” standard for copying, dismissing as insignificant the highly functional nature of computer programs, and conflating the market for Java SE as a whole with the market for individual declarations. Absent these legal errors, it is clear that the jury was at least reasonable in making factual findings that supported a finding of fair use. The extent to which a new work has a new meaning, message, or purpose—transformativeness—is often and rightly prioritized in the fair use analysis. But what constitutes transformativeness is often contentious. Here, the new purpose of Google’s new code implementing the declarations was the creation of a new computing environment in which Java programmers could readily create programs on multiple platforms, which required the use of limited portions of highly functional declarations. This type of purpose has been recognized as transformative because of its role in furthering competition and innovation. A computer interface supports the creation of other creative works, and in such situations, it is important to avoid locking in third parties to specific platforms. Factors two and three of the fair use test help define the boundaries of this type of fair use. In cases such as the one at bar, the highly functional nature of the copied declarations and the limited amount of the overall Java SE work used, consistent with industry practices, are vital considerations supporting the conclusion that Google’s use was a transformative use that served copyright’s basic goal of encouraging creation of new works. By discounting to the point of irrelevance the thinness of protection for highly functional aspects of computer interfaces (factor two) and of the industry practice of treating the amount Google reimplemented as reasonable (factor three), the Federal Circuit distorted its analysis of the other fair use factors, threatening the coherence of fair use doctrine and the ultimate progress of creativity. By downplaying the relevance of the nature of the work and the amount taken, the Federal Circuit fell into the well-known trap of circularity: reasoning that, because Oracle could have charged a license fee for this type of use if fair use were unavailable, Oracle suffered cognizable market harm. Because such claims can be made for any fair use, which by definition is not paid for, this reasoning cannot distinguish fair and unfair uses. But factors two and three can help identify when crediting such claimed market harm would be inconsistent with copyright’s overall balance between past and future creators. Thus, given the limited copying of functional elements here, factors one and four also support fair use, because Google’s purpose was generative of additional creativity by third parties and because Oracle’s claimed market harm goes beyond the legitimate scope of its thin copyright in highly functional declarations. A thin copyright for software, including Java SE, provides software copyright owners with meaningful protection against copying of significant amounts of expression, but meaningful protection does not require the expansive rights that the Federal Circuit granted. Providing a broad scope to highly functional elements of software is unnecessary and dangerous to competition and innovation. Factors two and three enable fair use to implement this distinction between types of works. The Federal Circuit erred in not recognizing this interaction between the fair use factors and instead adopting a rigid rule that would preclude fair use in computer programs.

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    Amici take no position on whether BOOKING.COM is generic, but write to encourage the Court to be cautious in resolving this case, which involves a generic term combined with a common top-level domain name identifier (.com). Trademark applications raise almost infinitely varied scenarios, including generic terms combined with other elements, and the top-level domain name identifier has some specific features that make it analogous to functional matter. Whatever rule the Court adopts should be highly attentive to the risks to competition of overassertion of registered marks that are largely or entirely comprised of generic elements. Because courts deciding infringement cases are often unfamiliar with the context of a trademark registration, they may miss limitations on the scope of the registered mark that the Trademark Office believed existed and, as a result, enforce broader rights than the registrants should actually have. Ordinary businesses receiving cease and desist letters are even more unlikely to have the expertise to understand the limits on a registration. This practical reality should guide the Court’s standards for registrations with generic components. Relatedly, the Court should reaffirm the basic principle that “de facto secondary meaning” does not give rise to protectability as a trademark. Courts have long distinguished between “de facto secondary meaning” and secondary meaning “to which courts will attach legal consequences.” De facto secondary meaning refers to an association between a generic term and a particular producer that is usually the result of an extended period of market dominance, whether achieved through advertising or through lack of competition. Because of the need to protect potential and future competition, a generic term cannot be appropriated as a trademark even if it has de facto secondary meaning The practical exclusivity afforded by domain name registration means that there may often be de facto secondary meaning in domain names, which can be difficult to distinguish from true trademark secondary meaning. This easily elided distinction affects how the Court should evaluate Booking.com’s survey, which purports to show secondary meaning. But the fact that de facto secondary meaning does not lead to trademark status does not mean it is irrelevant to the law. Even when a term is not protectable as a trademark, narrower unfair competition remedies may be available to prevent true passing off. When a term is generic or a product shape is functional, neither can be protected as a trademark and others may not be enjoined from competing using the term or shape.. Those competitors, however, may be required to distinguish themselves in the market by adding identifiers or otherwise differentiating their use, if the competitors’ use might deceive consumers. Thus, a rule that strongly protects competition by denying registration to generic terms does not leave consumers exposed to clever bad actors.

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    This is Chapter 14 from the 2020 edition of Advertising & Marketing Law: Cases and Materials, a casebook by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

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    The Supreme Court’s recent decision in Star Athletica purported to tell us the circumstances under which copyright will protect creative features of useful articles, such as items of clothing or cars. Unfortunately, the decision announced only abstract principles that manage to be both internally inconsistent and generally unhelpful in dealing with three-dimensional designs. This Article explains some of the challenges presented by the opinion and argues that clearer attention to the differences between design patent and copyright could have helped—and might still be useful going forward.

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  • Rebecca Tushnet, First Amendment Today: Not Obsolete, But…, 19 Insights on L. & Soc'y, Winter 2019, at 2.

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    This article was adapted from a keynote presentation delivered at the National Law-Related Education Conference, on October 20, 2018, in Chicago. The theme of the conference was "Free Speech Today."

  • Jeremy Sheff, Stephen Clowney, James Grimmelmann, Michael Grynberg & Rebecca Tushnet, 1, 2 Open Source Property (2019 ed.).

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    This is a print edition of Professor Jeremy Sheff's 2019 build of Open Source Property, a free online casebook for the first-year Property Law course at American law schools. A free digital edition of this text is available for download from www.opensourceproperty.org. Open Source Property is copyright 2015-16 by Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet. It may be reused under the terms of the Creative Commons Attribution NonCommercial 4.0 International license, https://creativecommons.org/licenses/by-nc/4.0/.

  • Eric Goldman & Rebecca Tushnet, 2 Advertising & Marketing Law Cases & Materials(4th ed. 2019).

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    This is a casebook on advertising and marketing law. Due to the length of the book, we have broken the book into 2 volumes. This is the order page for Volume 2.

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    This is Chapter 13 from the 2018 edition of Advertising & Marketing Law: Cases and Materials, a casebook by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

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  • Eric Goldman & Rebecca Tushnet, 1 Advertising & Marketing Law Cases & Materials (4th ed. 2018).

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    This is Chapter 18 of our Advertising and Marketing Law casebook, a chapter we are publishing only online. It focuses on the regulation of two specific advertising situations: (1) discriminatory advertising, principally in the housing context, and (2) political advertising.

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    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, Mix and Match: Transformative Purpose in the Classroom, in The Routledge Companion to Media Education, Copyright, and Fair Use 32 (Renee Hobbs ed., 2018).

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  • Rebecca Tushnet, Copyright Law, Fan Practices, and the Rights of the Author, in Fandom: Identities and Communities in a Mediated World 77 (Jonathan Gray, Cornel Sandvoss & C. Lee Harrington eds., 2nd ed. 2017).

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    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.

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    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.

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    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.

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    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.

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    The Federal Circuit’s ruling that the § 2(a) disparagement provision is unconstitutional, if upheld, could allow for numerous provisions of the Trademark Act to be overturned, dismantling the modern trademark system. The trademark system is premised on evaluating speech and making content-based determinations. Granting a trademark registration requires content-based determinations, though not viewpoint-based, as words are evaluated independent of applicants’ individual viewpoints. In no way does the refusal to register a trademark prevent its use or diminish public debate. Rather than facilitating public debate, a trademark registration is a government-issued document that makes it easier for its owner to suppress the speech of others. A trademark registration is not an entry pass to the forum; it is a right to exclude. Thus in trademark law whether the government refuses registration to a mark owner or it arms that owner with a registration to enforce against other speakers, the government inevitably interferes in someone’s speech. The Federal Circuit’s mistake was to treat a regulatory, benefit-granting program as if it were a ban on speech. Although prohibiting the use of disparaging marks would suppress speech, the government does not suppress speech by refusing to include these marks on the federal register. If a firm wants to use the N-word as its mark, it is free to do so under trademark law. Instead of doctrines focused on banned speech, the unconstitutional conditions doctrine is a more appropriate test for the trademark registration system, and because registration does not attempt to affect a registrant’s speech outside the four corners of the registration it poses no First Amendment problem. The different justifications, functioning, and risks of registration compared to laws punishing speech make application of doctrines about banning speech to the Lanham Act both incoherent and unwise. To rule otherwise would jeopardize much of the structure of trademark law.

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    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.

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    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.

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    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).

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.

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    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.