Cert in Dastar v 20th Century Fox-amicus support request

Two points about the Dastar case: background- The Supreme Court has just granted cert in Dastar v 20th Century Fox which contests the 9th Cir test of "bodily appropriation" for false advertising Lanham Act claim regarding core copyrightable works -- here a set of videotapes about WWII, but also used for books. In other words, anyone who publishes an uncopyrighted "copyrightable" work can get an injunction because the republisher did not put the author's or first publisher's etc., names on the work. (Of course, if the republisher uses these names, the republisher risks a suit for false attribution of sponsorship under the Lanham Act.) Since no confusion, likelihood of confusion, materiality of the "error," or secondary meaning prong is required to win such a suit, the cause of action is in effect permanent "copyright." The 2d Cir has a different but similarly problematic test (are the two products "substantially similar," the test used in copyright infringement cases).

    My points for the lists:

(i) I am writing a law professor merit amicus supporting Dastar (the
republisher). Please let me know off list if you might be interested in signing on. I would, of course, send you drafts. Filing deadline is 3 pm Feb. 14th.

(ii) In my law professor amicus supporting the grant of cert, I argued
that this case gained importance because of Eldred v. Ashcroft (asserting unconstitutionality of the Copyright Term Extension Act) because both of issue overlap AND because if Eldred won, "losers" could by pass the limit on copyrightability by using the Lanham Act under the 9th cir and 2nd cir tests. I see grant of cert in Dastar as a possible hint that Eldred might win. Any comments (on list)?

        My apologies for multiple postings to those on the same lists as I am.    Sincerely,

-- 
Malla Pollack
Visiting Associate Professor
University of Memphis, Law
mpollack[_at_]memphis.edu