I've never been troubled by the fact that some things - Mickey Mouse and Superman, for example - are protected both by copyright law and by trademark law. Some things have dual functions, so for me it was completely natural that one of their functions would be protected by one type of IP law while the other function would be protected by another. Not everyone shares that simple view, though. Professor Andrew Beckerman-Rodau has explained why he does not, in a new article in the Yale Journal of Law & Technology titled The Problem with Intellectual Property Rights: Subject Matter Expansion. Professor Beckerman-Rodau is the Co-Director of Suffolk Law School's Intellectual Property Law Concentration, and his article
. . . examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection of intellectual property in the form of overlaps which allow multiple bodies of intellectual property law to simultaneously protect the same subject matter. Such overlapping protection is problematic because it interferes with the carefully developed doctrines that have evolved over time to balance the private property rights in intellectual creations against public access to such creations. This article will examine the competin policies that underlie the various branches of intellectual property law. It will then discuss the expanding domain of subject matter protected by patent, copyright, and trademark law. Finally, it will examine the overlaps that exist under patent, copyright, and trademark law and the resulting problems with regard to software, clothing, computer icons, graphical computer interfaces, music, and useful commercial products.
Professor Beckerman-Rodau studied engineering before going to law school, but his article doesn't ignore issues of interest to entertainment lawyers. It includes sections on music, iPods and clothing, as well as software and user interfaces. In what may be a first (or at least unusual) for the Yale Journal of Law & Technology, his article also is illustrated.