Robert C. Denicola

Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works

Copyright law has always dealt more comfortably with the novelist, painter, or composer, than with the historian, reporter, or compiler. The very vocabulary of copyright is ill-suited to analyzing property rights in works of nonfiction. Although copyright prerequisites such as originality or creativity may carry meaning when applied to Macbeth or Ulysses, their utility is less apparent in the context of a financial report in the Wall Street Journal and even more obscure with respect to the Manhattan telephone directory. Yet copyright law must concern itself with each. Nonfiction literary works pose unique challenges. They heighten concern for access and dissemination, yet they underscore the necessity of preserving incentive. Copyright law has generally failed to acknowledge the distinctive nature of such works, relying instead on compromises struck in other contexts. The result has been unprincipled distinctions, untested assertions, and a general failure to relate the scope of protection to the effort of production. This Article examines the scope of copyright protection available to writings that communicate facts. After describing some basic principles of copyright law, it explores the divergent and inconsistently applied rationales used to define property rights in factual works. In the process, it suggests a more unified approach to copyright in nonfiction writings. A reasoned response to the problems associated with nonfiction works should ultimately rest on the premise that the particular collection of facts appearing in a work is itself a work of authorship. Express recognition of a property interest in collections of facts will ensure that appropriations from nonfiction works are carefully tested against traditional principles of substantial similarity and fair use. Such an approach will do more than safeguard needed incentive; it will also forestall unsound expansions of the copyright monopoly that threaten the laws ultimate objectives of dissemination and progress.

Some Thoughts on the Dynamics of Federal Trademark Legislation and the Trademark Dilution Act of 1995

The federal Trademark Act, more typically referred to as the Lanham Act, is now more than fifty years old. By most measures it has been an extraordinary success. This Essay recounts that success and speculates on its origins. It then worries that the dynamics of federal trademark lawmaking are changing, and in the future, continued success may prove more elusive. The Trademark Dilution Act illustrates the new dangers.

The Restatements, the Uniform Act, and the Status of American Trade Secret Law

Trade secret law is state law. For most of its history it was also common law. However, trade secret law was dramatically transformed by the Uniform Trade Secrets Act, which has been enacted in forty-seven states. Although now statutory law, the law of trade secrets retains the basic character of its common law roots, often relying without significant elaboration on concepts developed through common law adjudication. Harvey Perlman and I were the Reporters for the American Law Institute’s Restatement (Third) of Unfair Competition, which includes an analysis of trade secret law applicable to actions under the Uniform Act. The trade secret sections of the Restatement do not of course substitute for the statutory text, but they can be helpful aids in interpreting the statute. This article examines the changes in trade secret law made by the Uniform Act as analyzed in the Restatement (Third) of Unfair Competition.