The courts acting alone is key to signaling a stable signal and uniquely court application of relief, not new interpretations of congressional law.

The problems posed by overlapping protection are not confined to the protection of cartoon characters or to the copyright/trademark overlap. Overlapping intellectual property protection has emerged in a variety of contexts, mainly by accretion rather than design. Historically, patent, copyright, and trademark law protected very different types of works; the three areas of law occupied three separate realms and there was little or no overlap between them. When questions of overlapping protection did arise, channeling doctrines-doctrines that served to distinguish between patent, copyright, and trademark subject matter--developed to maintain the boundaries. Although the lines between the three areas may not have been perfectly drawn, it was generally understood that for any particular creative or inventive work only one type of protection (at most) was available. Over time, some of these distinctions have eroded. As the scope of intellectual property protection has expanded, the owners of intellectual property have pressed for, and in most cases received, greater protections. This outward pressure has resulted in the availability of multiple forms of protection for certain works. The Supreme Court has noted some of the problems posed by overlapping intellectual property protection. In Dastar Corp. v. Twentieth Century Fox Film Corp., the Court rejected the plaintiffs claim for overlapping protection.6 The plaintiff sought trademark protection for its World War II video series that had been, but was no longer, protected by a copyright.7 The Court denied the trademark claim, in part because allowing trademark protection in this case would conflict with copyright law, creating a "species of perpetual... copyright, which Congress may not do." 8 The Court termed this perpetual protection a "mutant" copyright and held that to permit trademark protection following the expiration of a copyright would infringe upon the public's "right to copy" an expired copyright.9 Similarly, in TrafFix Devices, Inc. v. Marketing Displays, Inc., the Court rejected a request to use trademark law to, in effect, extend a patent past its expiration.' 0 Again, the Court upheld the public's "right to copy"--this time in the patent context. An attempt to gain additional protections for an item that falls within the subject matter of patent law may be termed a "backdoor patent.""l l Both mutant copyrights and backdoor patents arise in a variety of situations that the Court has not addressed. Further, the Court's doctrine is both incomplete and flawed when viewed in the larger context of overlapping protection. The Court has failed to address the situation in which well-established trademark rights have developed before the expiration of a copyright or a patent. The doctrine also does not take account of the challenges to the intellectual property system that arise during the period of concurrent protection. In fact, the availability of overlapping intellectual property protection in all of its forms presents a serious threat to the goals and purposes of federal intellectual property policy and must be addressed as a single issue.' 2 Neither the Court nor Congress has adequately addressed the problem of overlapping protection. Federal patent and copyright law is based primarily upon a utilitarian theory. The Constitution contains a patent and copyright clause, granting to Congress the authority "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their respective Writings and Discoveries."' 13 Pursuant to this grant, Congress has passed numerous statutes creating copyright and patent rights, in each case attempting to achieve a balance between the rights granted to the creators and inventors and the benefits to the public, and in each case attempting to provide a sufficient incentive for the production of new works. 14 Because monopolies historically have been disfavored, the grant of patent and copyright rights has been viewed as a compromise of sorts. 15 Intellectual property rights are not absolute (and, in fact, are not monopolies in the modem sense), but neither is there a perfectly free market in new books and devices. Instead, the American system falls somewhere in between: we grant rights for limited times and with a variety of limitations on exclusive use. Thus, for example, the patent bargain is intended to spur the invention of new and useful machines, processes, and products while still providing some benefits to competitors, consumers, and the public.' 6 Congress and the courts have tinkered with this bargain over the years, attempting to achieve the desired balance. Likewise, the copyright bargain has been constantly renegotiated. Copyright law is meant to strike a balance between rights granted to authors and the availability of new, creative material for others.' 7 In this Article, I argue that if we wish to take seriously both the Constitution's command and the copyright and patent bargains created by Congress, we must address the possibility that intellectual property owners may obtain overlapping protection for their intellectual property. The availability of overlapping protection disrupts the copyright and patent bargains and makes it difficult, if not impossible, to determine whether the incentive structure created by Congress is appropriate. The Article will proceed in four parts. Part II sets forth the foundations and primary justifications for intellectual property law in the United States. Part III describes the expansion of intellectual property rights in the last half century, the erosion of the channeling doctrines, and the emergence in various circumstances of overlapping protection. Parts IV and V of the Article argue that this development-the increasing availability of overlapping protectionthreatens the intellectual property system by undermining the goals of intellectual property law and disrupting the balance struck by Congress in fashioning the system. Finally, the conclusion looks forward and offers suggestions-some practical, others theoretical-for reducing or eliminating the problems presented by overlapping intellectual property protection.