Registering Disagreement: Registration in Modern American Trademark Law
Vol. 130 No. 3
Trademark scholars widely agree that our current system for evaluating what rights a trademark owner should have over others’ uses of their (or similar)...
Author
Rebecca Tushnet
Free to Be You and Me? Copyright and Constraint
Response to Creating Around Copyright
Vol. 128 No. 5
Joseph P. Fishman’s Creating Around Copyright advances a provocative thesis: some restrictions on creativity can spur the development of additional creative solutions, and (some...
More than a Feeling: Emotion and the First Amendment
Resolving discrepancies in the regulation of emotional expression
Vol. 127 No. 8
Worth a Thousand Words: The Images of Copyright
Vol. 125 No. 3
Copyright starts with the written word as its model, then tries to fit everything else into the literary mode. It oscillates between two positions on nontextual creative works such as images – either they are transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming both that the meaning of the image is so obvious that it admits of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being susceptible to discussion and analysis using words that there is no point in trying. The oscillation between opacity and transparency has been the source of much bad law. This Article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The Article then turns to persistent difficulties in assessing copyrightability and infringement for visual works.