MERGING RIGHTS: THE EMERGENCE OF COPYMARK PROTECTION
- Vrinda Sehgal & Divanshi Gupta
- 11 minutes ago
- 5 min read
INTRODUCTION
Intellectual property is where creativity meets commerce, with each type playing a distinct role in this dynamic landscape. While both copyright and trademark serve to protect the fruits of human ingenuity, they do so in distinct ways, each with its own unique purpose and implications. Copyright safeguards original works of authorship, such as books, music, and art, offering creators a limited period of exclusive rights to their creations. Trademark, on the other hand, is the guardian of business reputation, designed to identify and distinguish products or services in the marketplace. Unlike copyright, which eventually expires to benefit the public domain, trademark protection can last indefinitely, reflecting its role in preventing consumer confusion rather than fostering new creativity. This difference highlights how copyright and trademark, though both vital forms of intellectual property, operate in fundamentally different arenas: one nurturing the creative spirit and the other ensuring commercial integrity.
On the surface, trademarks and copyrights appear as distinct forms of intellectual property, each with its own defined scope. However, in practice, the lines between the two have increasingly blurred, leading to a complex interplay where one often spills over into the other. Faced with the inherent limitations of copyright law, copyright holders have turned to trademark law as an additional tool in their arsenal, seeking to extend their control and protection of their work beyond what copyright alone can offer. In their pursuit to fortify their rights, copyright holders have begun to view trademark law as a means to fill the gaps left by copyright, treating it as an expansive doctrine that could offer remedies not traditionally available under copyright law. This approach has led to the concept of a "Copymark," as suggested by Gregory S. Schienke. By borrowing from the principles of trademark law, copyright holders attempt to broaden their monopolies, reinforcing their creative assets in ways that copyright law alone might not fully accommodate.
REASONS FOR INCLINING TOWARDS COPYMARK
The inclination towards the "Copymark" concept, which integrates aspects of trademark law into copyright protection, stems from several strategic and legal considerations. Unlike trademarks, which can provide indefinite protection, copyright is inherently limited in duration, reflecting the belief that the value of creative works diminishes over time. This temporal limitation drives copyright holders to seek additional avenues for extending their control. Further, trademark law’s "likelihood of confusion" standard offers a pragmatic alternative where copyright law may fall short, particularly in cases where substantial similarity between works is contested. Copyright holders often find the determination of substantial similarity to be unpredictable and complex, whereas assessing consumer confusion is more straightforward and tangible, creating a more predictable and appealing standard for enforcing rights. By leveraging trademark principles, copyright holders can bypass the nuanced debates over substantial similarity and utilize a clearer benchmark for protection, allowing them to sidestep the complexities of copyright infringement while still securing robust protection through trademark mechanisms. To address potential abuse and ensure a balanced application of intellectual property rights, incorporating trademark law’s limitations into copyright protection could recalibrate the current imbalance. Thus, blending trademark and copyright protections represents a strategic move to adapt to evolving legal and commercial realities while also calling for careful regulation to prevent misuse.
In the case of Klinger v. Conan Doyle Estate, Ltd., Leslie Klinger edited an anthology featuring stories inspired by Sherlock Holmes. Although Arthur Conan Doyle's original Sherlock Holmes stories are mostly in the public domain, ten stories published between 1923 and 1927 remain under copyright. The Conan Doyle Estate, which controls these later stories, requested licensing fees from Klinger’s publisher for the anthology and later for a planned sequel. Klinger sought a declaratory judgment to assert his right to use characters from the public domain stories without paying additional fees. The Court ruled that once a work falls into the public domain, its elements, including characters, are free to use and cannot be restricted by copyright. The Court also observed that the Estate’s actions effectively sought to extend trademark-like control over the characters, a move not supported by copyright law. This case exemplifies a 'copymark' scenario, where the copyright holder attempts to extend its control by using trademark law.
IS COPYMARK A SOLUTION FOR DEFINING RIGHTS IN FICTIONAL CHARACTERS?
Fictional characters are unique types of “works” when it comes to claiming copyright protection. Given the fact that fictional characters can take many forms, such as graphic animated characters and literary characters who are created in novels or books, there is a need for courts to come up with a comprehensive test in this area of the law. With the advent of technology and the changing times, the traditional notions of “works” that could fall within the different categories in order to claim copyright protection are now evolving and the law needs to be updated to reflect upon this change as well.
At this point, it is worth mentioning that last year, Mickey Mouse, Steamboat Willie entered the public domain in the United States. This means that Disney no longer owns the copyright in this particular Mickey Mouse due to the 95 year time period condition, as per the US copyright law. Perhaps copymarks might be the solution for such complex “works”, involving protection of many different aspects of intellectual property.
Gregory S. Schienke proposed that for a fictional character to be eligible for "copymark" protection, the owner must demonstrate that the character: a) originated in a work available for copyright registration, (b) has been in use in commerce, (c) has been in use for at least five years, and (d) is famous. The determination of fame would involve an analysis akin to the "story being told" test, which examines the entire body of work featuring the character. This approach seeks to merge aspects of copyright and trademark law to more effectively define and enforce rights in fictional characters. Therefore, copymark offers hybrid protection to fictional characters, and while copyright shall protect creativity, trademark shall protect distinctiveness. Copymark protection for such fictional characters shall also ensure perpetuity, which becomes essential for business owners who invest sizable sums in their characters.
POTENTIAL RISKS OF IMPLEMENTING COPYMARKS
It has been rightfully said that, “Copyright is a careful balance between the monopoly rights of the copyright holders to exclude the uses of others, and the rights of the public”. Indefinite protection for copyrights through the concept of copymark could undermine the public domain and challenge the core objective of copyright law, which is to promote creativity by ensuring that works eventually become accessible to the public. This could also be considered a rather “anti-competitive measure”.
Further, considering “copymark” is an evolving concept, if the same is not well protected and covered, it might become difficult to protect in cases of infringement. Establishing clear lines within the context of existing laws shall become a complicated affair. Besides enforcement and administrative issues, there may also be a risk of trademark dilution if the copymark is similar to the trademark and there is overuse of the copymark.
CONCLUSION
Copyright law seeks to balance the rights of creators with the public's right to access and engage with creative works, whereas trademark law is concerned with protecting the marketplace. As the creative industry evolves and copyright usage expands, copyright holders have increasingly attempted to apply trademark principles within the realm of copyright law. However, integrating trademark concepts into copyright law risks disrupting this balance, potentially threatening free speech and encroaching on the public domain. Despite judicial attempts to address these issues, the application of these concepts has often led to considerable confusion. While current laws may not fully meet the protection needs of copyright holders, a blanket application of copymark is not a definitive solution.
References:
https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1812&context=nlj
Stacey M. Lantagne, “The Copymark Creep: How the Normative Standards of Fan Communities can Rescue Copyright”, March 2016
Gregory S. Schienke, “The Spawn of Learned Hand-A Reexamination of Copyright Protection and Fictional Characters: How Distinctly Delineated Must the Story Be Told?”, 2005
755 F.3d 496, 497 (7th Cir. 2014)
https://www.candcip.com/single-post/characters-unique-copyrights
https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2832&context=gsulr
https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=2832&context=gsulr
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