When the Means Become the End: Intellectual Property and the Public Interest
Copyright, trademark, and patent law all share an origin story that's easy to forget once you're inside the system long enough: none of them were justified primarily as wealth-transfer mechanisms. Their stated purposes were public-facing. A patent grants a temporary monopoly to encourage invention and disclosure, so the public eventually gains the benefit once the patent expires. Copyright exists to encourage creative production while ensuring works ultimately enter the public domain. Trademark exists so consumers can rely on source signals without being deceived.
Intellectual property regimes were justified as instruments for promoting public welfare. Increasingly, however, legal doctrine and business practice have treated the protection of rights holders as an end in itself rather than as a means to that public purpose.
Sociologists sometimes describe this phenomenon as goal displacement, a term Robert K. Merton introduced in his 1940 study of bureaucratic dysfunction: institutions begin by treating rules as tools for achieving broader objectives, only for adherence to the rules themselves to become the objective. Intellectual property sometimes appears vulnerable to that same tendency. Rights that were justified as instruments for promoting innovation, consumer trust, and creative production can come to be understood as ends in themselves.
The shift wasn't the result of a single statute or Supreme Court opinion. It emerged gradually through doctrine, litigation strategy, and business incentives that increasingly rewarded maximizing exclusivity itself.
Patent law makes this easiest to see, because the dollar amounts are largest and the stakes are most visible. Pharmaceutical research is frequently funded substantially by public money (government grants, university labs, taxpayer-supported basic science) with private companies stepping in at the later stages to commercialize a discovery and claim the patent. The incentive logic is sound in principle: commercialization is expensive and risky, and someone has to be paid to take that risk. But the practice has drifted well past that justification. Patent thickets, where companies file overlapping patents on minor variations to make a drug nearly impossible to challenge. Evergreening, where incremental modifications extend periods of exclusivity without corresponding therapeutic advances. Product hopping, where a manufacturer shifts the market to a newer, still-patented version right before a generic competitor can enter. All of this is legal. Whether these practices generate enough additional innovation to justify their social costs remains deeply contested. What is harder to dispute is that they push the patent system toward preserving exclusivity itself rather than rewarding the sort of breakthrough innovation the public-interest rationale originally envisioned.
I've written more about this specific pattern (how patent policy has drifted from public good to private financial instrument) in a piece for I-MAK. The short version: the legal mechanism didn't change much. What changed is what companies learned to do with it once the incentive to maximize shareholder value outpaced the incentive to actually serve the public the patent was supposed to benefit.
Trademark and copyright are running a parallel version of the same drift, and the recent cases that touch on artistic expression are where it becomes visible enough to actually litigate.
In 2017, Matal v. Tam (my case) established that the government can't deny trademark registration because it disapproves of the viewpoint a mark expresses. That ruling expanded the space for expression inside trademark law. In 2023, Jack Daniel's Properties v. VIP Products moved in the opposite direction. VIP made a dog toy called "Bad Spaniels," shaped like a Jack Daniel's bottle, with the label rewritten as a joke about dog excrement. The Supreme Court ruled unanimously against VIP, holding that when a company uses another's trademark as a source identifier for its own product…which is what VIP did, registering its own joke names as trademarks the same way Jack Daniel's registered its real ones… heightened First Amendment protection for expressive works doesn't apply. The parody defense survives for things like movie titles and book covers. It doesn't survive when the parody is also functioning as your own brand.
I think the rule should apply consistently, and I think Jack Daniel's got the actual risk backward. It is difficult to believe that many consumers encountering a rubber dog toy shaped like a whiskey bottle genuinely think Jack Daniel's entered the pet-toy market. If the company wanted to sell an official one, it could.
The entire premise of the lawsuit rests on assumptions about consumer confusion that strike me as increasingly detached from ordinary experience. Consumers navigate parody, satire, imitation, and unofficial merchandise constantly. The law may still conclude that confusion exists, but courts should be cautious about treating hypothetical confusion as self-evident simply because the doctrine has long done so. Look at food, or fashion: entire industries thrive on open competition and reinterpretation without the constant threat of litigation, and the competition itself often drives more innovation than another layer of legal exclusion would.
Copyright's version of this same instability is even more visible right now, because the courts themselves can't agree on the test.
In 2023, the Supreme Court ruled in Andy Warhol Foundation v. Goldsmith that Warhol's silkscreen portraits of Prince, derived from a photograph by Lynn Goldsmith, weren't transformative enough to qualify as fair use, not because the new work failed to convey a different meaning, but because both works served the same basic commercial purpose: illustrating a magazine story about Prince. Conveying a new meaning, the Court held, isn't enough on its own. You have to look at what the use was actually for.
That same instability is playing out right now in a case much closer to street level. Tattoo artist Kat Von D used photographer Jeffrey Sedlik's well-known portrait of Miles Davis as the reference for a free tattoo she gave a friend. A jury found no infringement; the Ninth Circuit affirmed it in January 2026. But two judges on that same panel wrote concurrences openly criticizing the court's own "substantial similarity" test as incoherent, essentially inviting the full court to scrap it. Sedlik has now petitioned for that exact en banc rehearing.
I think Sedlik is the closest living relative Warhol has, and together they're evidence that the doctrinal framework underneath all of this may be less stable than courts have often assumed. The problem is not that judges exercise judgment. The problem is that these tests often promise a level of predictability they cannot deliver. Reasonable judges applying the same factors routinely reach opposite conclusions, suggesting that the doctrine may be disguising fundamentally aesthetic judgments as legal analysis. I've made a version of this same point about AI and authorship: the legal system keeps reaching for property-based tools to answer questions about meaning and expression that property law was never built to answer cleanly.
None of this means trademark, copyright, and patent protections should disappear. It means the protections have increasingly drifted toward serving the entity holding the right rather than the public the right was originally meant to benefit, and the expression cases (Tam, Jack Daniel's, Warhol, Sedlik) are where that drift becomes visible enough to actually argue about in court, because somebody's joke, somebody's art, or somebody's tattoo bumped up against somebody else's monopoly.
The Court has historically treated IP's internal doctrines sufficiently accommodate free expression. But cases like Tam, Jack Daniel's, and Warhol raise the possibility that those internal safeguards may not always perform that function adequately. The unresolved question is not whether the First Amendment applies to intellectual property at all. It plainly does. The harder question is whether IP's internal doctrines continue to provide sufficient protection for expression, or whether courts will increasingly subject them to more explicit constitutional scrutiny. Patent law's drift toward shareholder value over public benefit, trademark's struggle over how much parody it can tolerate, and copyright's inability to settle on a stable test for transformation are, I think, the same underlying tendency wearing three different outfits. That tension is likely to define both IP law and free speech law for at least the next decade.
A question for those of us who work in and around intellectual property law: when our first instinct is to defend the existing doctrine, are we protecting the public interest that justified these rights in the first place, or simply the interests of the parties sophisticated enough to invoke them? The public is often described as the ultimate beneficiary of IP law. It is much less often present in the room.
I speak on intellectual property, First Amendment law, and the gap between legal doctrine and lived creative experience at law schools, bar associations, and IP law conferences. If these questions connect to work you're doing, simontam.org/ip-law-keynote-speaker is the place to start.
