Re: Attribution is not required in public domain materials

>>> mlandau[_at_]gsu.edu 06/04/03 06:34AM >>> wrote: What is wrong with requiring attribution? If there is no false designation of origin, then there is no Lanham Act problem. <<<<<

Scalia's opinion gives several practical problems with interpreting the Lanham Act to require attribution. First, whom do you attribute? His example is the MGM movie of Carmen Jones. Do you have to give credit to MGM? Oscar Hammerstein, who wrote the lyrics and adapated the book from Bizet's opera? Bizet, who wrote the opera? Merimee, who wrote the book on which the opera was based? "We do not think the Lanham Act requires this search for the source of the Nile and all its tributaries."

Second, requiring attribution puts a chilling effect on republication of material in the public domain. Producers are deterred not only by successful suits, but by the threat of suit. If you publish a public domain work, you would be sued not only if you fail to attribute, but also if you DID give credit: you would face lan action for false implication of sponsorship or approval. People just wouldn't publish if they could easily be sued either way.

>>>>>

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I think this kind of misattribution is self-regulating. People who are familiar with the original won't be fooled; and once an author gains a reputation for being a plagiarist, no one will buy their work unless they are genuinely making an original contribution. Responsible authors and creators won't do this, and irresponsible ones won't succeed in the marketplace.

>>>>>

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 Evabns, Ben Shahn, Dorathea Lange, etc? <<<<<

If the public doesn't care who took the photographs, then the public isn't harmed by publication without attribution. If the public does care, then the book won't succeed unless attribution is given.

Besides, the opinion doesn't protect false statements of fact; it allows a claim for false advertising. It just says that "origin" in the Lanham Act means the producer of the tangible goods, not the creator of intangible ones. [A unanimous opinion, by the way.]

Finally, although broadly written, I don't think the opinion would preclude a specific, narrowly-drawn statute requiring attribution to the author [NOT merely the former copyright owner, as Fox was in this case] in the case of exact reproductions; just on requiring attribution for derivative works based on public domain works. Since a derivative work by definition requires some originality, it is not false for the author of the derivative work to claim credit for that derivative.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu

EFFECTIVE JULY 1, 2003:
Professor of Law
High Tech Law Institute
Santa Clara University School of Law
500 El Camino Real
Santa Clara, CA 95053
(408) 554-4767
(408) 554-4426 (fax)
ttochoa[_at_]scu.edu Received on Thu Jun 05 2003 - 18:39:59 GMT