Copyright and Trademark Law as Public Interest Lawyering

R. Anthony Reese, UC Irvine School of Law

Abstract

This contribution to the symposium “Business Law as Public Interest Law” considers to what extent the practice of copyright law or trademark law constitutes public interest lawyering. Answering that question depends, in part, on what constitutes public interest legal practice. Because it is beyond the purview of this essay to attempt a comprehensive definition, this essay instead proceeds by analogy, highlighting ways in which the work that copyright and trademark lawyers do is often analogous to the kind of work done by lawyers who are engaged in practices that are fairly uncontroversially accepted as public interest lawyering.

Part I examines how copyright and trademark law are each animated by the fundamental goals of furthering the public interest and noting that, to the extent that one views current law as falling short of achieving those goals, that provides an opportunity for public interest lawyering in the form of advocating for legal reform.

Part II considers the opportunities that practicing copyright and trademark lawyers have for engaging in the paradigmatic form of public interest lawyering: representing clients who cannot afford legal representation. I offer examples of such public interest copyright and trademark lawyering in representing both clients who need to defend themselves against claims of copyright and trademark infringement and clients who have their own copyright or trademark claims that they need to assert.

Part III turns to the potential role for copyright and trademark law in public interest lawyering directed at economic empowerment for disadvantaged individuals and communities.

Finally, Part IV explains how copyright and trademark law, perhaps more than many other areas of business law, are often intertwined with freedom of expression concerns, and thus in some instances representing a client in a copyright or trademark case may help achieve the same goals as familiar public interest lawyering, which often seeks to defend freedom of speech.