Speech, Copyrights, and Trademarks: From Pop Music to The Slants (original) (raw)

Free Speech Theory: Understanding the Controversies, 2020

Abstract

Over the last century, intellectual property law has evolved to give much greater protection to those who created the works rather than to the public who may want to build on them. Yet, in the digital era of remixing and sharing, free speech protections have started to pierce the once impenetrable IP protection as courts recognize the social and cultural importance of fair use, while other attempts to move IP law towards recognizing different values, such as diversity and equality, have, by contrast, floundered. Accordingly, this chapter examines this conflict through the lens of free speech theory. First, the chapter outlines two recent issues in IP law- disparaging trademarks and derivative works. Next, it examines how free speech theory exists within the IP regulatory scheme. Finally, the chapter applies free speech theory to help guide our understanding of contemporary issues.

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