In recent years, various disputes involving the use of creative works have demonstrated how trademark-related concerns lurk at the heart of what are ostensibly copyright-related claims. When recording artists such as Jackson Browne or the members of Heart object to the unauthorized use of their songs in connection with a political campaign, they are most likely not troubled about the loss of revenue resulting from the use; rather, they are likely concerned that the public will wrongly assume that the use of the song indicates that they have endorsed the political candidate. But because it is sometimes easier for them to bring a successful copyright claim than a false endorsement claim, we risk an overbroad result: an injunction against the use of the work altogether, despite its expressive benefits, rather than a narrower injunction requiring a disclaimer or similar information-correcting device.

Naming practices can, on occasion, illustrate the reverse trademark/copyright divide: disputes that more naturally fit a trademark-related framework but that actually embody copyright-related concerns. For example, innumerable advice columns have featured some variation of the following question: “We chose a lovely, original name for our soon-to-be born baby and told my sister-in-law about it. Now she has named her child, born last week, the exact same name. I can’t believe she stole our baby name. Should I ever speak to her again?” Although naming is typically seen as trademark-related, part (or all) of what causes this anguish is a copyright-related concern: the creativity that went into choosing, finding, or inventing the name and, relatedly, a desire to be recognized for that creativity.

Social networks, virtual worlds, and other forms of electronic interaction that require users to choose identifiers to facilitate communicative exchanges offer interesting environments in which to consider this intersection of trademark and copyright interests. If users select names as much for their expressive power as for their functional ability to distinguish one user from another, as they appear to do, what does that tell us about the kinds of creativity that matter to noncommercial creators? From where do some participants get the idea that names can be owned and, therefore, “stolen”? And what, then, do these instincts tell us about the interests and rhetoric that are typically invoked in discussions of intellectual property law?

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2 University of California at Irvine Law Review 585-625 (2012)