Freedom to copy.

AuthorDenicola, Robert C.
PositionRalph Sharp Brown, Intellectual Property, and the Public Interest

Only one of Ralph Brown's many works on intellectual property law begins with a literary reference. He introduced a 1984 article on copyright protection for derivative works with a quotation from William Butler Yeats's The Second Coming:

Turning and turning in the widening gyre The falcon cannot hear the falconer; Things fall apart; the center cannot hold Mere anarchy is loosed upon the world....(1) Ralph called it "one of the noblest poems of this century,"(2) and his fondness for it is revealing. Ralph devoted much of his career to holding the center. He worried that intellectual property law had begun to lean too far toward private rights at the expense of the public interest in access and competition. "Competition is copying,"(3) and laws that restrain copying--copyright, patent, trademark, and comers of unfair competition law--restrain competition. They exist as exceptions to a fundamental proposition, expressed by Justice Brandeis in language that Ralph enthusiastically repeated in at least three articles (and twice more in our casebook on copyright law):(4) "The general role of law is, that the noblest of human productions--knowledge, troths ascertained, conceptions, and ideas--become, after voluntary communication to others, free as the air to common use."(5) Exceptions require justification, and Ralph was old-fashioned enough to believe that their scope should run no further than their rationale. He systematically analyzed the rationales supporting private rights in intellectual property and challenged any restraint on use that seemed to spiral beyond legitimate justification. This Essay examines the central theme of Ralph's scholarship: his passionate and influential defense of the freedom to copy.

In recent years, Ralph had grown increasingly uneasy with the rapid expansion of intellectual property rights. He sometimes speculated on the conditions that fostered this trend and on the nature of an appropriate response. His ideas are discussed in Part IV of this Essay.

  1. TRADEMARK LAW

    1. The Yale Article

      In 1948, with his mind no doubt on tenure as much as trademarks, Assistant Professor Ralph Brown undertook a formidable task in an article published in The Yale Law Journal.(6) At a time when economic analysis of law was largely confined to tax, antitrust, and roles governing regulated industries,(7) he set out to formulate a normative theory of trademark law based on recent economic studies of modern advertising.(8) The connection between trademarks and advertising was undisputed. The ability of a firm to capture the benefits of a favorable reputation generated by investments in advertising depends directly on the degree of protection afforded to the symbols that consumers use to identify the firm and its products. "Trade symbols are a species of advertising,"(9) Ralph argued, and the scope of their protection should be set with reference to the economic effects of advertising. On the latter, influenced principally by the work of Edward Chamberlain,(10) he took a decidedly cynical view. To the extent that it provides information to consumers, advertising contributes to the efficient operation of the market. To the extent that it does not, Ralph believed that advertising wastes resources in sterile competition and, worse, generates irrational consumer preferences that foster monopoly. The implications for trademark law were clear. When trademarks assist consumers in identifying the goods of particular sellers, they support the informational function of advertising. Any unauthorized use that subverts this function by causing confusion about the source of a product should be stopped. Protection beyond the prevention of confusion, however, is not only unnecessary but counterproductive; it shields the selling power or "commercial magnetism"(11) of a mark, facilitating product differentiation and monopoly. For Ralph, the prevention of confusion was thus the defining rationale for the protection of trademarks; additional restrictions on imitation were unjustified intrusions into the competitive process.

      Investigations into the economics of advertising published during the first two decades following Ralph's article in The Yale Law Journal generally supported his views.(12) By the 1970s, however, a view more favorable to advertising had gained ground. George Stigler, for example, emphasized that advertising contributes to efficiency by offering information that reduces a buyer's search costs,(13) although Ralph had no quarrel with such informative advertising. Philip Nelson went further, arguing that much of what Ralph called "persuasive" advertising also provides useful information to consumers.(14) Sellers get a bigger economic return from advertising that generates repeat sales, and thus the volume of advertising for a product can be a useful guide to the level of consumer satisfaction that the product has achieved.(15) By 1987, William Landes and Richard Posner could write "that the hostile view of brand advertising has been largely and we think correctly rejected by economists."(16)

      The young Ralph Brown undoubtedly understood that his appraisal of modern advertising would not be the final word. His principal achievement was to win acceptance for a mode of analysis that tied the protection of trademarks to their economic role in the marketplace. He had demonstrated that any extension of trademark protection beyond the limits of the confusion rationale was at least debatable,(17) and after the publication of his article any case for expanded protection required more than unadorned allusions to property rights and unjust enrichment. In the decades that followed, as the debate over the scope of trademark protection played out on several fronts, Ralph fought to retain consumer confusion as the touchstone for excluding copiers.

    2. Dilution

      One protracted conflict over trademark rights had begun only a year before publication of Ralph's Yale article. In 1947, Massachusetts became the first state to pass a "dilution" statute. The act and its rationale directly challenged Ralph's views on the appropriate scope of trademark protection.(18) As Ralph recognized, aggressive promotion can invest a mark with considerable power to stimulate sales. In an effort to induce courts to prohibit the use of a mark even on goods that did not compete with those of the trademark owner, Frank Schechter had argued years earlier that the primary value of a trademark is its capacity to generate sales and that it should be protected against the "gradual whittling away or dispersion of the identity and hold upon the public mind of the mark...."(19) Ralph, of course, emphatically disagreed--far from deserving protection, this "persuasive" power might be better diluted through nonconfusing uses of the mark by others.(20) The common law never adopted Schechter's dilution rationale, instead extending protection against noncompeting uses only when they threatened to confuse consumers.(21) The dilution statutes, however, gave direct recognition to the selling power of a mark by prohibiting any use that imperiled its "distinctive quality"--that is, its unique connection with the trademark owner and its products.

      Dilution protection received a boost when the U.S. (now International) Trademark Association, a private organization of trademark owners, added a dilution provision to the 1964 revision of its Model State Trademark Act, which serves as the basis for most state trademark registration statutes.(22) More than half of the states now have dilution laws.(23) Influenced perhaps by Ralph and other skeptics, courts initially gave the statutes a cool reception.(24) In the 1980s, however, judges began to take the dilution statutes at face value, extending protection against even nonconfusing uses that threatened to dilute the association between the mark and the trademark owner. To economists who saw more good than bad in brand promotion and product differentiation, protection against dilution was sound policy. A nonconfusing use of a well-known mark to denote the products of a different seller can reduce the mark's capacity to communicate information to consumers by blurting the connotations developed through the prior user's promotional investments.(25)

      The futile effort to hold trademark rights within the confines of the confusion rationale reached its conclusion in 1996, when an amendment to the Lanham Act created a federal cause of action for the owners of "famous" marks against unauthorized use that "causes dilution of the distinctive quality of the mark...."(26) Even before the enactment of the federal dilution law, however, Ralph and others had begun to stake out a new line of defense against the expansion of trademark protection under the dilution rationale. It was one thing to offer protection against the use of a well-known mark as a trademark on someone else's goods, but another to prohibit uses intended to identify the trademark owner or its products as the subject of the user's speech. Examples of the latter include use of another's mark in comparative advertising or in parodies directed at the trademark owner or its products. Although state dilution statutes have sometimes been invoked to protect a mark from use as a trademark on goods that might tarnish the positive associations that the mark evokes,(27) in a few instances this protection has extended to cases in which the tarnishing results, not from the use of the mark as a trademark for another's goods, but from its use in speech directed at the trademark owner.(28) The extension of rights against such "nontrademark" use has become the new battleground.

      The economic arguments that favor protecting a mark against even nonconfusing use as a trademark for someone else's goods do not easily extend to other kinds of nonconfusing use. If the symbol is not used as a trademark to denote the goods of a different seller, the exclusive association between the mark and the...

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