The Copymark Creep: How the Normative Standards of Fan Communities Can Rescue Copyright

• Publication year: 2016

The Copymark Creep: How the Normative Standards of Fan Communities can Rescue Copyright

Stacey M. Lantagne

The University of Mississippi School of Law

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THE COPYMARK CREEP: HOW THE NORMATIVE STANDARDS OF FAN COMMUNITIES CAN RESCUE COPYRIGHT

Stacey M. Lantagne^*

Abstract

Copyrighted works are increasingly perceived by society as serving a purpose traditionally considered to be held by trademarks. Copyrighted works act as valuable brands within a consumer marketplace, protected as corporate assets and defined to protect commercial interests. This Article argues that the growing overlap between copyright and trademark has resulted in a "copymark creep," evident in the judicial decisions that have confronted the issues.

This overlap has tipped the balance away from copyright's purported constitutional goal. Copyright is understood to benefit the public by providing a public domain and protecting certain free speech rights, whereas the trademarking of copyright chips away at both of those benefits. The lack of bright line rules in the copyright arena only adds to the uncertainty and leads to the stifling of more speech, at further detriment to the public.

This Article proposes that the solution to this problem can be found on the Internet through fan communities. Fan communities employ bright line rules to create a system that is clearer than that found in the judicial precedents, rather than the anything goes anarchy they are frequently perceived as. These communities have instinctively turned toward trademark protections in the copyright context, relying on disclaimers to dispel confusion and on a lack of commercialism to shelter them from infringement attacks. This

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importation of benchmarks more strongly associated with trademark law both acknowledges the overall copymark creep and finds a way to preserve copyright's goals in the face of the creep, resulting in a flourishing creative community. Finally, fan communities use these benchmarks to set bright line rules for themselves that encourage speech that might otherwise be hesitant in the face of legal uncertainty.

If we are going to continually expand copyright law, we should at least be careful to check it with those doctrines we use to keep trademark from swallowing the cultural dialogue. Such an impulse is the only one that makes sense to preserve the effectiveness of copyright as a method of encouraging creativity. Otherwise, we run the risk of using copyright as merely a backstop to trademark law and lose sight of its different overall goal: to encourage creativity, not commercial gain.

Table of Contents

Introduction.............................................................................461

I. The Interaction of Copyright and Trademark Law....................................................463

A. The Traditional Justifications for Two Separate Systems..........................................463

1. The Trademark Law Regime..................................463
2. The Copyright Law Regime...................................464
3. The Differences in Practice...................................465

B. The Growing Overlap Between Copyright and Trademark...........................................466

1. The Length of Protection.......................................466
2. Corporate Ownership............................................467
3. Copyright as Brand................................................468
4. The Lack of Unified Treatment within Copyright Statutes.....................469

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C. The Creation of the Concept of "Copymark"..............................................................470

1. The Copymark Creep.............................................471
2. Dastar....................................................................475
3. "Copymark Creep" post-Dastar...........................478

D. The Danger of the Copymark Creep...........................490

1. The Danger to the Public Domain.........................491
2. The Danger to the First Amendment.............................................................494

II. Turning to Fan Community Practices to Balance Copymark Creep....................498

A. Fan Community Understanding of Trademark Law......................................................499

1. Embracing Trademark's Likelihood of Confusion Standard.......................499
2. Trademark's Commercial—as Opposed to Creative—Marketplace.....................501

B. Fan Community Encouragement of Creative Activity........................................................502

III. Using the Internet to Save Copyright.....................504

Conclusion................................................................................511

Introduction

Copyright is a statutory scheme authorized by the Constitution to promote progress by providing ownership in certain creative works.¹ The brief, simple directive set forth by the Intellectual Property Clause of the Constitution has led to a morass of overlapping statutes that seek to strike a continually elusive balance between the rights of the creator, to prevent others from using a creative work, and the rights of the public, to engage with that creative work.² At its heart, copyright seeks to regulate the creative marketplace by giving some

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limited benefit to the few copyright holders to ultimately benefit of the public at large.

Trademark law is a statutory scheme used to aid effective and efficient consumer purchasing decisions. One of the many ornaments dangling off the justifying branch of the Constitution's Commerce Clause, trademark law protects valuable symbols to clarify the clamor of the competitive economy. At its heart, trademark seeks to regulate the commercial marketplace by giving some limited benefit to the few trademark holders to ultimately benefit the public at large.

In the abstract, having one system to deal with goods and services and another system to deal with creative endeavors makes conceptual sense. In practice, however, copyright and trademark have spilled into each other to such an extent that attempts to disentangle the two legal schemes have only led to muddled judicial decisions and imprecision. The growing overlap between copyright and trademark law leaves the public with little guidance as to how to enjoy the benefits supposedly provided to them under both systems, tipping the balance too much toward the rights holders.³

The Internet is frequently blamed for the confused state of the copyright system. However, it is copyright holders who have caused much of the blurring between copyright and trademark, by increasingly treating their copyrighted works more like trademarks and seeking an expansion of their copyright monopolies through trademark law concepts.⁴ In the face of the resulting confusion this "copymark" idea has left in the legal system, the folk wisdom of fan communities on the Internet actually stands as a beacon of clarity. Far from threatening the copyright system, the bright line rules that fan communities have frequently adopted should be embraced for re-establishing the intended balance of copyright and trademark.

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I. The Interaction of Copyright and Trademark Law

A. The Traditional Justifications for Two Separate Systems

In the beginning, there were two systems under two different Constitutional clauses dealing with two different things in two different ways: trademark and copyright.⁵ Historically, the difference between these two seemed so clear-cut as to be obvious.

1. The Trademark Law Regime

Traditionally, trademark was a doctrine used to protect consumer brands.⁶ Its Congressional authority is rooted in the Commerce Clause.⁷ Trademark was meant to assist corporations in marketing themselves and to aid consumers in making efficient buying decisions.⁸ Trademark law is all about the marketplace and selling goods in fair and profitable ways.⁹

The Lanham Act that governs trademark law "was intended . . . 'to protect persons engaged in . . . commerce against unfair competition.'"¹⁰ It was "not designed to protect originality or creativity"¹¹ and "should not be stretched to cover matters that are typically of no consequence to purchasers."¹² Rather, its purpose is to "reduce[] the customer's costs of shopping and making purchasing decisions" and ensure that the right company "will reap the financial, reputation-related rewards associated with a desirable product."¹³

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Therefore, trademark law is largely unconcerned with what happens to the good once it is sold.¹⁴

2. The Copyright Law Regime

Copyright, on the other hand, was considered to be totally different. After all, if it was not, there would have been no need for the Lanham Act in the first place.¹⁵ Copyright law is a tense balance between the rights of the creator and the rights of the public to engage with creative works.¹⁶ As opposed to the commercial emphasis of trademark law, copyright law is concerned with creativity.¹⁷ Rooted in the Intellectual Property Clause of the Constitution,¹⁸ copyright law was intended to encourage creative works for the good of society at large, establishing an incentive structure.¹⁹ This incentive structure would "motivate the creative activity of authors and inventors"²⁰ to ensure the "optimal level" of

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"production of valuable, remunerative, and socially beneficial new works."²¹ "What we want . . . is to assist authors in earning just enough profit to, first, enhance the creative environment enough to stimulate them to create works in the first place, and, second, encourage them to make their works available to us."²² This is why copyright encourages the growth of a public domain of freely available works.²³ In fact, "[t]he ultimate purpose of . . . copyrights in the United States is to enlarge the public domain of creative works by authors and inventors, thereby promoting 'the progress of science and useful arts.'"²⁴

The Copyright Act originally concerned books...