Academic journal article Harvard Law Review

Rethinking Copyright for Advertisements

Academic journal article Harvard Law Review

Rethinking Copyright for Advertisements

Article excerpt

At the turn of the twentieth century, employees of the great Wallace Shows prepared as advertisements a series of color chromolithographs featuring some of the circus's attractions, such as ballet dancers, "fancy bicycle riding," and persons "whitened to represent statues" depicting historic events. (1) Recognizing a profitable use for the posters beyond mere advertisement, (2) the Donaldson Lithographing Company made and distributed its own smaller, black and white reproductions. (3) Wallace Shows sued. Finding no original artistic qualities in the prints, no connection to the fine arts, and no "merit or value aside from the purely business object of advertising a show," the Sixth Circuit found the posters to be outside of constitutionally copyrightable subject matter. (4) Upon writ of error, the case found its way to the Supreme Court, which tackled the question: does the fact that a work is an advertisement affect its copyrightability?

The answer: no. Refusing to cast judgment on the relative worth of pictorial illustrations, the Supreme Court declared that works do not lack a connection to the fine arts merely because their pictorial quality "attracts the crowd" and makes them useful in generating a profit. (5) Now just over a century old, Bleistein v. Donaldson Lithographing Co. (6) still accurately describes the law. The fact that an ad is an ad thus has no bearing on its copyrightability, regardless of what is advertised.

Yet on an intuitive level, advertisements seem to differ conceptually from the more traditional objects of copyright: novels, songs, movies, paintings, and so forth. In fact, upon closer examination, although the Bleistein rule is no doubt virtuous in its predictable and uniform treatment of advertisements, the case for the copyrightability of ads is less than airtight. Showing perhaps less restraint than other scholarship, this Note makes "one of several eminently predictable moves" (7) by suggesting a workable solution to the issue of advertisements' copyrightability. (8)

This Note proceeds in three parts. After offering a brief sketch of current copyright law as it applies to advertisements, Part I considers advertisements in light of basic principles underlying the doctrine. Because granting copyright protection to advertisements appears unnecessary to induce the creation and dissemination of ads, and because it is not clear that copyright protection provides the public with a meaningful net benefit, Part I makes the case that presuming advertisements to be copyrightable subject matter--and thus treating them as commensurate with other copyrightable works--is unjustified. Part II attempts to conceptualize ads within the realm of copyright, finding ads appreciably dissimilar from the traditional objects of copyright protection. Ads instead bear a striking resemblance to "useful articles," three-dimensional objects that have a nonincidental utilitarian function and must satisfy a test of separability to qualify as copyrightable subject matter. Given the similarity between ads and useful articles and the doubt raised by Part I about copyright law's current treatment of advertisements, Part II concludes that ads ought to be treated in a fashion similar to useful articles. Part III further explores this possibility by applying the doctrine of conceptual separability, which serves as a gatekeeper to copyright protection for useful articles, to advertisements. Although there are numerous tests for conceptual separability, Part III looks specifically at three versions and concludes that they could be practically adapted to advertisements. The Note concludes that advertisements should no longer be treated presumptively as copyrightable subject matter and that they instead should be required to satisfy a test analogous to conceptual separability before becoming eligible for copyright protection. (9)


A. Current Law

Under current law, advertisements are "clearly copyrightable. …

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