Jessica Litman

Breakfast with Batman: the Public Interest in the Advertising Age

This essay, written as a contribution to a symposium honoring the late Professor Ralph Sharp Brown, revisits Brown’s prescient 1948 article, Advertising and the Public Interest: Legal Protection of Trade Symbols. In Part I of the essay, I review Ralph Brown’s justification for the rule that trade symbols’ legal protection should be limited to cases of likely consumer confusion. Broader protection of trade symbols, affording legal armor to advertising’s persuasive function, would yield no benefits to consumers and would disserve the public interest by shielding firms from healthy competition. In Part II, I discuss the expansion of trade symbol law over the past fifty years, as courts and Congress increasingly have disregarded Brown’s advice. In Part III, I describe shifts in American culture, legal attitudes, and business practices that accompanied—and to some degree explain—that doctrinal change. In particular, I point out that trade symbols have become enormously valuable, outshining in importance the products they identify. In Part IV, I urge that the independent value of trade symbols and advertising atmospherics today does not supply reasons for protecting them under the trademark laws. Rather, as I explain in Part V, a critical look at the role of advertising in our lives today reaffirms the importance of Ralph Brown’s original prescription: Legal protection for trade symbols, in the absence of confusion, disserves competition and thus the consumer. It arrogates to the producer the entire value of cultural icons that we should more appropriately treat as collectively owned.

The Invention of Common Law Play Right

In this paper, written for Berkeley’s symposium on the 300th birthday of the Statute of Anne, I explore the history of the common law public performance right in dramatic works. Eaton Drone dubbed the dramatic public performance right “playright” in his 1879 treatise, arguing that just as “copyright” conferred a right to make and sell copies, “playright” conferred a right to perform or “play” a script. I examine case law and customary theatrical practice in England, and find no trace of a common law play right before 1833, when Parliament established a statutory public performance right for plays. Similarly, in the United States, the first claims of a common law right to control public performances appeared only after Congress enacted a statutory dramatic public performance right in 1856. Courts and lawyers developed a common law literary property right to control public performances in order to permit the proprietors of dramatic works to recover even though there were formal defects in their U.S. copyright registrations. Eaton Drone then used those cases as a basis for embroidering a full-blown common law literary property right purportedly based in natural law. Courts adopted Drone’s version of common law play right and followed it for the next thirty years. (The breadth of the common law claim, however, made little difference to actual playwrights, who were deemed to have assigned their common law rights to the producers of their plays.) This history suggests that the rights that we perceive as inherent or natural are fundamentally contingent on what rights already have names and a path to enforcement.