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Copyright (c) 2004 Berkeley Technology Law Journal 
Berkeley Technology Law Journal

ARTICLE: Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Property Protection

Fall, 2004

19 Berkeley Tech. L.J. 1473


By Viva R. Moffat+


Mickey Mouse and Peter Rabbit are both victim and villain in this story. The story involves the expansion of intellectual property rights in the United States over the last half century and the ways in which federal intellectual property rights have, in certain circumstances, begun to overlap and provide simultaneous or sequential protection for some inventive and creative works. For example, both copyright law and trademark law now protect Mickey Mouse and Peter Rabbit. 1

Overlapping copyright and trademark protection for these two characters not only means that their creators receive all the benefits flowing from both the copyright regime and the trademark system, but it also means that many of the benefits that would otherwise flow to the public - to consumers, competitors, later creators, and the public domain - are withheld. In the case of Mickey and Peter, these public benefits include the "right to copy" the work once the copyright has expired, 2 the right to make fair use of the copyrighted work, 3 and the right of independent creation. 4 While these benefits would otherwise be available under the Copyright Act, trademark law does not provide similar benefits to the public and may deprive the public of these benefits when both forms of protection are available. Thus, Mickey and Peter are villains, disrupting the copyright bargain, confusing the incentive structure established by Congress, and remaining out of reach for use by others. They should also be seen as victims, however; ...
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