Papers by Mark Bartholomew
Utah Onlaw the Utah Law Review Online Supplement, May 22, 2013
Abstract: Even though secondary infringement doctrine in both copyright and trademark stems from ... more Abstract: Even though secondary infringement doctrine in both copyright and trademark stems from the same common law starting points, the doctrines have moved in very different directions, particularly in the last decade. As copyright litigants expanded their litigation ...
Vanderbilt law review
Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little... more Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement on common law tort rules. But common law tort is an enormous subject. Without further instruction, the subject area is too vast and contradictory to offer a realistic template for reform. Even when the narrower body of tort law for secondary actors is consulted, there is still too much variation in the existing precedent to provide the necessary guidance. Instead of simply instructing the courts to consult tort law, we stress two specific reforms to make contributory infringement decisions more logical and predictable. First, tort law’s rules for causal analysis provide a significant resource for contributory infringement doctrine. The intuitive appeal of causal reasoning as well as its frequen...
This paper describes the Yale Law School in the late 1800s. For most of the period, the school&#x... more This paper describes the Yale Law School in the late 1800s. For most of the period, the school's faculty struggled to gain the attention of an unresponsive university administration. At the same time, the faculty pushed for interdisciplinary study that would tie the Law School to the university's other academic departments.
Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particul... more Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Yet each of these intellectual property regimes strikes the balance between ownership rights and free speech in a dramatically different way. This Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, and right of publicity jurisprudence. The first Part of this Article carefully details the disparate treatment of First Amendment defenses in the three intellectual property regimes. On one side of the spectrum is copyright law. Many factors have rendered copyright law a feeble protector of free expression. On the other side of the spectrum is the recent right of publicity jurisprudence, which routinely invokes the First Amendment and features robust defenses. Somewhere in the middle stands trademark law, offering its own judge-made defenses but simultaneously closing off those defenses for defendants engaging in commercial activity or activity that is potentially confusing to consumers. The next Part attempts to explain why these three regimes accommodate the First Amendment in such different ways. The Article concludes that the divergence is not the result of careful deliberation, but rather the inadvertent product of different methods and histories of lawmaking. Because this divergence does not represent a logical or deliberate choice, reforms are needed. By bringing these different approaches to the First Amendment into relief, this Article demonstrates that some free speech interests are being shortchanged and aims to place all three regimes on a stronger theoretical footing.
This Article challenges the standard account of the creation of the right of publicity. In legal ... more This Article challenges the standard account of the creation of the right of publicity. In legal literature, the prevailing narrative is of the right of publicity being intimately linked to the commodification of celebrity. Ultimately, however, there may be more to the story of the right of publicity than the decision to protect something of economic value. It took decades after it had become clear that celebrities could be valuable commercial spokespersons for lawmakers to agree to make the right inheritable, separate from the dignitary right of privacy, and potentially applicable to any economic, secondary use that invoked the celebrity plaintiff. It was only in the later part of the twentieth century, when American understandings of celebrity became rationalized and democratized, that the right of publicity was reconceptualized as a much more vigorous and far-reaching economic entitlement. By examining the discourse and political environment surrounding the emergence of this new right, this Article offers a new narrative for the right of publicity's creation, suggests some broader insights into the social forces that shape property rights, and enriches a growing body of legal theory examining the public's role in producing legal change.
Books by Mark Bartholomew
Advertising is everywhere. By some estimates, the average American is exposed to over 3,000 adver... more Advertising is everywhere. By some estimates, the average American is exposed to over 3,000 advertisements each day. Whether we realize it or not, "adcreep"—modern marketing's march to create a world where advertising can be expected anywhere and anytime—has come, transforming not just our purchasing decisions, but our relationships, our sense of self, and the way we navigate all spaces, public and private.
Adcreep journeys through the curious and sometimes troubling world of modern advertising. Mark Bartholomew exposes an array of marketing techniques that might seem like the stuff of science fiction: neuromarketing, biometric scans, automated online spies, and facial recognition technology, all enlisted to study and stimulate consumer desire. This marriage of advertising and technology has consequences. Businesses wield rich and portable records of consumer preference, delivering advertising tailored to your own idiosyncratic thought processes. They mask their role by using social media to mobilize others, from celebrities to your own relatives, to convey their messages. Guerrilla marketers turn every space into a potential site for a commercial come-on or clandestine market research. Advertisers now know you on a deeper, more intimate level, dramatically tilting the historical balance of power between advertiser and audience.
In this world of ubiquitous commercial appeals, consumers and policymakers are numbed to advertising's growing presence. Drawing on a variety of sources, including psychological experiments, marketing texts, communications theory, and historical examples, Bartholomew reveals the consequences of life in a world of non-stop selling. Adcreep mounts a damning critique of the modern American legal system's failure to stem the flow of invasive advertising into our homes, parks, schools, and digital lives.
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Papers by Mark Bartholomew
Books by Mark Bartholomew
Adcreep journeys through the curious and sometimes troubling world of modern advertising. Mark Bartholomew exposes an array of marketing techniques that might seem like the stuff of science fiction: neuromarketing, biometric scans, automated online spies, and facial recognition technology, all enlisted to study and stimulate consumer desire. This marriage of advertising and technology has consequences. Businesses wield rich and portable records of consumer preference, delivering advertising tailored to your own idiosyncratic thought processes. They mask their role by using social media to mobilize others, from celebrities to your own relatives, to convey their messages. Guerrilla marketers turn every space into a potential site for a commercial come-on or clandestine market research. Advertisers now know you on a deeper, more intimate level, dramatically tilting the historical balance of power between advertiser and audience.
In this world of ubiquitous commercial appeals, consumers and policymakers are numbed to advertising's growing presence. Drawing on a variety of sources, including psychological experiments, marketing texts, communications theory, and historical examples, Bartholomew reveals the consequences of life in a world of non-stop selling. Adcreep mounts a damning critique of the modern American legal system's failure to stem the flow of invasive advertising into our homes, parks, schools, and digital lives.
Adcreep journeys through the curious and sometimes troubling world of modern advertising. Mark Bartholomew exposes an array of marketing techniques that might seem like the stuff of science fiction: neuromarketing, biometric scans, automated online spies, and facial recognition technology, all enlisted to study and stimulate consumer desire. This marriage of advertising and technology has consequences. Businesses wield rich and portable records of consumer preference, delivering advertising tailored to your own idiosyncratic thought processes. They mask their role by using social media to mobilize others, from celebrities to your own relatives, to convey their messages. Guerrilla marketers turn every space into a potential site for a commercial come-on or clandestine market research. Advertisers now know you on a deeper, more intimate level, dramatically tilting the historical balance of power between advertiser and audience.
In this world of ubiquitous commercial appeals, consumers and policymakers are numbed to advertising's growing presence. Drawing on a variety of sources, including psychological experiments, marketing texts, communications theory, and historical examples, Bartholomew reveals the consequences of life in a world of non-stop selling. Adcreep mounts a damning critique of the modern American legal system's failure to stem the flow of invasive advertising into our homes, parks, schools, and digital lives.