In many areas courts are giving new intellectual property rights for reasons they largely leave unarticulated. Noncopyrightable stock averages are being protected by state law. Merchandising emblems and symbols are being protected in non-trademark contexts by trademark law. The right of publicity has expanded to such an extent that judges and commentators al iKe bewail the imminent dangers to the First Amendment caused by the imprecision of the new right’s boundaries. Even in federal copyright law, which explicitly says that facts and ideas should be free of protection, and where inadvertent copying is supposed to be as actionable as intentional piracy, odd things are happening. Summaries of copyrighted factual reports are enjoined on the ground, inter alia, that the copier is a "chiseler," and in a leading fair use case concerning The Nation magazine’s publication of a summary of president Ford’s memoirs, Justice Brennan writes in dissent that the majority’s analysis "has fallen to the temptation to find copyright violation based on a minimal use of literary form in order to provide compensation for the appropriation of information from a work of history."
Wendy J. Gordon, Notes on Natural Rights of Intellectual Property (Aug. 16, 1985)