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Abstract

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[...] If it is too difficult to completely eliminate copyright protection of advertising, Congress should at least consider reducing such protection to increase the free flow of advertising expression. This Article proposes two revisions to the U.S. Copyright Act to accomplish this goal. First, Congress could amend Section 102(b) to state that advertising is only entitled to thin copyright protection against virtually identical copying of the work. Although the doctrine of "thin" copyright is used for factual compilations and other works for reasons that do not apply to original and creative advertising works, this framework, which requires virtual identity between the original and accused works, should more effectively balance the interests of copyright holders and later advertisers and commentators. Second, Congress could clarify in Section 107 that the first factor of the statutory fair use defense weighs in favor of a finding of fair use if the defendant used the plaintiff's copyrighted advertising expression in comparative advertising. If Congress revises Section 102 and 107 of the U.S. Copyright Act to enable more unauthorized uses of copyrighted advertising expression during the copyright term, this may reduce the harm to free expression caused by copyright protection of advertising and increase net social welfare[...] This Article attempts to provide a full evaluation of the utilitarian justification for copyright in advertising and trademark rights in slogans. Part II explains how the United States uses copyright and trademark law to protect exclusive rights in advertising and slogans. In Part III and IV, this Article explores whether copyright in advertising and trademark rights in slogans can be justified under traditional utilitarian theory. The answer is probably not, with the caveat that it may be too difficult and costly to distinguish between advertising and other copyrighted works in light of recent changes in the advertising industry. Since U.S. intellectual property laws are primarily based on utilitarian theory, legislators should consider reducing copyright protection of advertising and eliminating trademark protection of slogans.

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