Re: Attribution is not required in public domainmaterials

At 09:34 AM 6/4/2003 -0400, Michael Landau <mlandau[_at_]gsu.edu> wrote:
>If there is no false designation of origin, then there is no Lanham Act
>problem.
>
>Oh, have you heard my new record, Landau's 5th symphony? The first 4 notes
>are killer !
>
>I also have just finished some a painting, "Mona Lisa", she has a wonderful
>smile. Also, check out my new novel, "Great Expectations" and my new play
>"The Merchant of Venice."
>
>
>It seems as all of this would be acceptable after that decision.
Not necessarily. The answer is in your own posting: "If there is no false designation of origin, then there is no Lanham Act problem."

But taking credit for a symphony, painting, novel or play WOULD be a false designation of origin. Under the Lanham Act it's not necessary, for example, the credit the songwriters to a musical work, but if one does undertake the attribution, if must be completely accurate. Under Lamothe v. Atlantic Recording Corp., 847 F.2d 1403 (9th Cir. 1988), a song had three writers, but only two were credited. That was held to be a violation; although literally true, the attribution was to two actual writers, the suppression of the third was improper. Because the work at issue in Lamothe was still covered by copyright, the Dastar decision does not affect it, but it would be a different matter using your hypothetical examples, since those are public domain works. It might not be a Lanham Act violation, but it still would be wrong (if not necessarily actionable) to claim credit. On the other hand, given that copyright (for new works) continues to subsist for the life of the author (and long after), who would have standing to sue, and who would be harmed? If Shakespeare were alive, he might complain that you were sullying his professional reputation or eating into his sales, but who's harmed if you plagiarize him now?

>Also, think of all of the public domain depression-era FSA photographs.
>Should I be able to publish them without saying that they were taken by
>Walker Evans, Ben Shahn, Dorathea Lange, etc?
You apparently can. This might be different in France, for example, where there is a right of attribution as part of the bundle of rights that make up the moral right in a work; the moral right continues even after the economic right expires. Considering that the work in question in the Dastar case was a work for hire in the first place, and a product of numerous contributors, the rationale for the right of attribution as a "personality" right is even weaker.

As a practical matter, what if one doesn't know the author? Having a rule that does not require attribution is certainly simpler. The Supreme Court's "Carmen Jones" example also demonstrates the practical limitations in requiring attribution.

>I think that it is not a good decision.
You might not like it, but that's different than saying its not good. Why is it not good? Is it poorly reasoned? unconstitutional? Will it inhibit the progress of the arts and science? Does it mean that the U.S. has shirked its duties under the Berne Convention?

Under the U.S. legal system, copyright protection lasts for a "limited" time. Ideas are not copyrightable. What is not protected can be copied freely. Rights of personality (name, voice, likeness, etc.) terminate at death or for a fixed duration thereafter (depending on the jurisdiction). One cannot defame a dead person. The Dastar decision is consistent with these principles. The decision was unanimous (with one abstention), so it doesn't seem as if it were too controversial.

S. Martin Keleti
Cohen and Cohen
740 North La Brea Avenue
Los Angeles, CA 90038-3339
323.938.5000
323.936.6354 fax Received on Thu Jun 05 2003 - 18:39:59 GMT