On 03/23/99, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Nothing actually "overrides" the First Amendment. I think it is more
> useful to regard copyright, trademark, and right of publicity as
> LIMITATIONS on the First Amendment.
I don't think that state law can limit the first amendment -- if at any point they converge, the First Amendment wins.
Ditto federal trademark law, since the First Amendment comprises a limitation on the exercise of Congressional power.
In certain circumstances, it may be argued that the copyright clause forms an independent limitation on the First Amendment, as it also has constitutional status -- but even that is a dubious claim, as a matter of interaction between the ennumerated powers and the limitations placed on them. If anything, it may be that the First Amendment limits the copyright clause.
> Also keep in mind that while copyright generally is of issue where
> two parties' First Amendment rights conflict, trademark and right
> of publicity are limitations on COMMERCIAL speech, which enjoys a
> lower level of First Amendment protecton to begin with.
First, I note with (as I recall) Justice Scalia, that "less protected" is still "protected."
Second, this distiction is too glib. Note that the type of use of the trademark being discussed is not necessarily commercial -- such as use in a novel, rather than on a competing product -- but nonetheless the subject of cease and desist letters by overreaching trademark owners.
If you reply (as some might) that use in a novel is "commercial use" because the novel will be sold, then the distinction becomes meaningless (as the Court recognized in Campbell v. Acuff-Rose).
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