States have authority

The federal structure of the U.S. government presents interesting questions for intellectual property. Which government, national or state, exercises regulatory authority? Or do both governments play a significant role? Questions of this order cannot be addressed unless one first analyzes what the term "intellectual property" comprehends. Intellectual property includes well-recognized regimes of exclusive rights in inventions (patents), literary, artistic and musical creations (copyrights), and trademarks. But it also covers more elusive, and evolving, interests, such as exploitation of one's personal name and image (right of publicity), trade secrets, and a generalized concern with prevention of acts amounting to unlicensed appropriation of another's time, labor, and money. To which lawmakers and judges, state or federal, then, do claimants and users look to determine the existence and scope of protection for this capacious subject matter?

At first blush, one might assume that all these varieties of intellectual property fall under exclusive federal ordering. By nature, inventions, works of authorship, trade symbols, and such, resist confinement to local boundaries. When ideas and images range widely, their subjection to discrete, and potentially conflicting, territorial regimes can frustrate their effective dissemination, and can produce commercial uncertainty and insecurity. In the U.S. federal system, however, the national government is supposed to be of limited powers; it may not regulate an area simply because uniform national regulation seems good policy. More important than the legal dimensions of U.S. federalism are its political ones. Federal intervention needs justification, and, largely for historical reasons, significant areas are thought to reside with state governments.2 In the U.S., the general areas of property law, tort law, and contract law - all fields relating directly or indirectly to intellectual property - are traditionally considered the subject of state regulation.