From Ashes to Fire: Trademark and Copyright in Transition

Abstract

This Article explores the parallels between current developments in copyright law and the evolution of unfair competition doctrine in the early twentieth century. In each case, influential segments of the legal establishment responded to a major technological upheaval by rejecting gradual reform. They argued that the existing regulatory framework was so obsolete that only a radical overhaul could address the new paradigm. In the unfair competition context, that impulse led to the creation of misappropriation, dilution, and the right of publicity, all of which reshaped intellectual property even though they did not supplant traditional principles. In copyright, a similar process is underway in the wake of the Internet Revolution that may have profound consequences. The analysis concludes by examining the relationship between the three radical unfair competition proposals and their counterparts in copyright in order to project the future of the law.