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The article details the discussions from the second panel of the Cardozo Arts & Entertainment Law Journal Symposium, focusing on the Bad Spaniels case and its implications for trademark law, particularly concerning the intersection trademark protections. Topics include the concept of likelihood of confusion in trademark infringement, the application of the Rogers test for expressive works, and changes in trademark owners' rights regarding parody and artistic expression.

Late last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation. This Article examines the growing competition problems in the copyright industries and argues that, despite a resurgent interest in antitrust enforcement among policymakers, antitrust alone has not provided adequate solutions. Indeed, in the aftermath of the DOJ's victory against Penguin Random House, the publishing industry is now predicting that Simon & Schuster will simply be stripped and sold for parts, hurting author compensation while doing little to stop industry concentration. Copyright law--including its collection of safe harbors, compulsory licenses, and other industry-regulating regimes--also appears unable to meaningfully address the current reality. The Article argues that antitrust and copyright law cannot work in silos. To find a way forward, we shine a spotlight on an underexplored legal regime: the antitrust consent decrees that continue to regulate certain licensing markets in the music industry by subjecting the organizations ASCAP and BMI to rate setting by the federal courts. We draw on this unusual system--perhaps the only example of antitrust regulation that has directly incorporated a concern with copyright's policy agenda--to propose a new regulatory model based not on discrete, one-off interventions (such as blocking a merger), but rather full regulation of the licensing practices in concentrated content markets. As the consent decree model shows, copyright and competition law can work in tandem, ensuring that antitrust regulation of the creative-content space remains sensitive to copyright's overarching goals of incentivizing creativity and ensuring public access to cultural works. [ABSTRACT FROM AUTHOR]

Intellectual property law generally rests on the assumption that markets will bring about an ideal allocation of resources. Nonetheless, United States copyright law remains riddled with regimes that bypass or restructure normal market licensing between copyright owners and distributors such as streaming services. radio stations, and libraries. This Article provides the first comprehensive account of this "law of dissemination," examining how a range of seemingly unrelated judicial doctrines, statutory safe harbors, and regulatory institutions together affect the relationship between copyright owners and the entities that disseminate creative works to the public. While these regimes are often treated as unintelligible historical relies, they reflect an important and underexplored aspect of copyright's policy agenda. This Article argues that copyright has a particular set of policy concerns related to the dissemination of creative works for the public's consumption, enjoyment, and personal use. Ill particular, four interrelated goals are reflected to varying degrees in copyright's many dissemination-regulating institutions: (1) facilitating exchanges in transaction cost-heavy contexts, (2) enabling more efficient and expansive public access to existing creative works, (3) reducing barriers to entry for innovative forms of distribution in concentrated markets, and (4) furthering distributive justice priorities. Identifying these four goals and examining how they permeate the copyright system is a necessary first step in remedying many of the problems currently faced by copyright's law of dissemination, particularly its increasingly outmoded, piecemeal and inconsistent regulatory design. By diagnosing these challenges and their potential roots, this Article provides grounding for assessing how copyright law can be reimagined to fit a world Of almost entirely digital dissemination. [ABSTRACT FROM AUTHOR]