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Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, and right of publicity jurisprudence.

The first part of this Article carefully details the disparate treatment of First Amendment defenses in the three intellectual property regimes. On one side of the spectrum is copyright law. An increasingly broad interpretation of commercial use, a narrow construction of transformative use, and a myopic focus on market harm, combined with a refusal to engage in any sort of independent First Amendment review, have rendered copyright law a feeble protector of free expression. On the other side of the spectrum is recent right of publicity jurisprudence, which routinely invokes the First Amendment and features robust defenses based on “transformativeness” and “newsworthiness.” Somewhere in the middle stands trademark law, offering its own judge-made defenses to immunize expressive conduct but simultaneously closing off those defenses for defendants engaging in commercial or potentially confusing activity.

The next part tries to explain why these three regimes accommodate the First Amendment in such different ways. We conclude that the divergence is not the result of careful deliberation, but rather the inadvertent product of different methods and histories of lawmaking. If the divergence does not represent a logical or deliberate choice, reforms are needed. By bringing these different approaches to the First Amendment into relief, we hope to demonstrate how some free speech interests are being shortchanged and we aim to place all three regimes on a stronger theoretical footing.

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George Washington Law Review

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