Monday, November 28, 2005

Remembering Dastar

Many websites tell you that the text is in the public domain and it is all right to copy their material, provided proper attribution is made. Dastar suggests that material in the public domain may be copied without proper attribution and possibly with misattribution.

For the right to copy, without attribution, a previously copyrighted work, the Supreme Court cited to patent law: The right to copy, and to copy without attribution, once a copyright has expired, like "the right to make [an article whose patent has expired]including the right to make it in precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 230 (1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 121-122 (1938).

Of the plagiarism issue, the Supreme Court noted: Finally, reading § 43(a) of the Lanham Act as creating a cause of action for, in effect, plagiarism-the use of otherwise unprotected works and inventions without attribution-would be hard to reconcile with our previous decisions. For example, in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205 (2000), we considered whether product design trade dress can ever be inherently distinctive. WalMart produced "knockoffs" of children's clothes designed and manufactured by Samara Brothers, containing only "minor modifications" of the original designs. Id., at 208. We concluded that the designs could not be protected under § 43(a) without a showing that they had acquired "secondary meaning," id., at 214, so that they" 'identify the source of the product rather than the product itself,'" id., at 211 (quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851, n. 11 (1982)). This carefully considered limitation would be entirely pointless if the "original" producer could turn around and pursue a reverse-passing-off claim under exactly the same provision of the Lanham Act.

The final text in the decision is worth noting: Had Fox renewed the copyright in the Crusade television series, it would have had an easy claim of copyright infringement. And respondents' contention that Campaigns infringes Doubleday's copyright in General Eisenhower's book is still a live question on remand. If, moreover, the producer of a video that substantially copied the Crusade series were, in advertising or promotion, to give purchasers the impression that the video was quite different from that series, then one or more of the respondents might have a cause of action-not for reverse passing off under the "confusion ... as to the origin" provision of § 43(a)(1)(A), but for misrepresentation under the "misrepresents the nature, characteristics [or] qualities" provision of § 43(a)(1)(B). For merely saying it is the producer of the video, however, no Lanham Act liability attaches to Dastar.

A message here is that a poorly known author must copyright the author's work, or else a better known author will simply take it, and place the better known author's name on it.


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