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

Abstract

The interactions between the three federal schemes of intellectual property protection - copyright, patent, and trademark - have often been overlooked. This article addresses some of the issues raised by the overlaps between these areas of law and concludes that the availability of more than one form of protection for certain creative or inventive works creates problems in many circumstances; that those problems have not been considered fully by policymakers or courts; and that overlapping protection interferes with the benefits meant to flow to the public. All three areas of federal intellectual property protection are commonly seen as regulatory schemes that have as their goal benefits to the public: copyright law encourages the creation and dissemination of expressive works; patent law provides an incentive for the invention and disclosure of new and useful products and machines; and trademark law is based on a consumer protection rationale. In the article, I trace the development and expansion of copyright, patent, and trademark rights, and show that these areas have begun to overlap in some cases. When certain items - software programs or animated characters, for example - receive the benefit of more than one form of protection, the public benefits are much less likely to accrue. Ultimately, the availability of overlapping protection disrupts each individual scheme of protection and makes it difficult, if not impossible, to determine whether the incentive structure created by Congress is effective.