Copyright (c) 2006 University of Michigan Law School
Michigan Telecommunications and Technology Law Review
ARTICLE: INTELLECTUAL PROPERTY RIGHTS IN ADVERTISING
12 Mich. Telecomm. Tech. L. Rev. 189
Lisa P. Ramsey*
Before the twentieth century, U.S. courts refused to protect copyright in advertisements. Until the middle of the twentieth century, advertising slogans generally were not registered or protected under U.S. trademark law. Today, firms can acquire copyright protection in advertising and there is no categorical rule against trademark registration or protection of slogans. This Article questions whether this extension of copyright protection to advertising and trademark protection to slogans has a satisfactory utilitarian justification.
Utilitarianism, or welfare consequentialism, provides the primary theoretical justification for intellectual property protection in the United States. 1 Utilitarian theorists and economists generally endorse the grant of copyright to authors for a limited time as an appropriate means to encourage the production of works of authorship. 2 Without copyright protection, many authors cannot recoup their investment in the creation of novels, movies, or other new works. Imitators, who do not bear the cost of creation, can charge lower prices. This reduces the incentive to produce new works. By protecting exclusive rights in works for the copyright term, copyright law provides an economic incentive to invest in the creation of new works. An increase in the production of new works benefits the public and outweighs the costs of copyright protection. Thus copyright law increases net social welfare and is generally justified under utilitarian theory.
This traditional theoretical justification for U.S. copyright law may not justify copyright protection of advertising for two independent reasons: (1) most advertising works will likely be produced regardless of copyright ...
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