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June 16, 2003
Dastar and Trademark

Dastar won their case against Twentieth Century Fox Film Corp two weeks ago, and this is important for a number of reasons:

1. the court ruled that once a work passes into the public domain, and the work is reused or repackaged under another's name (in this case a producer), the original copyright holder cannot use trademark law to extend copyright.

Scalia said that if creative producers were required under the trademark law to attribute the origin of any uncopyrighted materials they used, it would be difficult. "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries," he wrote. (Salon)

2. the court reaffirmed the distinction between copyright law, which protects the originality of expression, and trademark law, which protects the public from confusion amongst brands, etc.

"Justice Antonin Scalia said that the trademark law, which is intended to protect consumers from confusion, does not allow creators to claim plagiarism when their uncopyrighted works and inventions are used." (Salon)

3. the court stressed that the public domain is essential for creativity. Fox used public domain footage to make their video, and in turn, when Fox's video fell into the public domain because they failed to renew copyright (their work was part of a category of works that still have to renew verses newer works that are automatically renewed), Dastar then used the video to make its own video, albeit not very different, but also not marketed as being different.

"The consumer who buys a branded product does not automatically assume that the brand-name company is the same entity that came up with the idea for the product -- and typically does not care whether it is," Scalia wrote in the opinion. (Salon)

In particular, this case makes doubtful the claim that IP lawyers sometimes tell their clients, which is not to worry so much about copyright law, because if it fails to protect or the work goes into the public domain, trademark law will protect them. Dastar v. Fox clearly shows this kind of reasoning isn't going to work in the future, and that trademark law cannot be used to support copyright reasoning.

Another take on these issues, Lessig quotes Duke Law Professor James Boyle: So we now know that while the word "origin" in an IP statute must be carefully defined in order to prevent rights-creep that would undermine the careful limitations struck in a statutory scheme, the words "promote," "progress," "limited" and even "author" can be defined any way Congress wanted to even if that upsets the careful balance struck in a constitutional clause, because they are only words in the Constitution, and thus much less fundamental.

Posted by Mary Hodder at June 16, 2003 11:25 PM | TrackBack
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