Re: Re: Attribution is not required inpublicdomainmaterials

The essence of this decision is that infringement (copying works protected by copyright) is illegal but plagiarism (claiming the work or ideas or another as one's own) is not illegal. The Lanham Act protects goods not expression. Copyright protects expression not ideas. Works once they enter the public domain have no protection. Scholarly ethics would require acknowledgment of sources whether or not they are protected, but entertainment ethics appear to be different. I can't recall the parties involved, but I remember that a few years ago a judge found that a novel based to a considerable extent on the ideas presented in a scholarly work of history, and which did not acknowledge that source, had not infringed the copyright of the scholar since no expression had been copied. The judge I believe decried the ethics of the lack of acknowledgment but found, and in my opinion rightly, that the law provided no protection for ideas.

Plagiarism is certainly despicable, and academic solution of public shaming doesn't seem to apply to the entertainment industry. But what would be worse, unpunished plagiarism or the loss of what little public domain that remains.

James and Dorothy Brennan wrote:

>Mr Grierson might be (mis)understood to suggest that to pass off the work of
>another as one's own work after expiry of the originator's copyright is not
>legally actionable
>But "passing off" is still actionable under the Lanham Act. As Justice
>Scallia stated in the opinion:
>"Thus as it comes to us, the gravamen of respondents claim is that, in
>marketing and selling Campaigns as its own product without acknowledging its
>nearly wholesale reliance on the Crusade television series, Dastar has made
>'a false designation of origin...' That claim would undoubtedly be sustained
>if Dastar had bought some of New Lines Crusade video tapes and merely
>repackaged them as its own"
>The key point of the decision relates to the meaning of "origin" under the
>Lanham Act when used with respect to what the Court termed a "communicative
>product". And the court held: "But as used in the Lanham Act, the phrase
>'origin of goods' is in our view incapable of connoting the person or entity
>that originated the ideas or communications that the 'goods' embody or
>contain."
>Jim Brennan
>
>----- Original Message -----
>From: "Kevin Grierson" <kgrierson[_at_]wilsav.com>
>To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
><CNI-COPYRIGHT[_at_]cni.org>
>Sent: Thursday, June 05, 2003 10:39 AM
>Subject: [CNI-(C)] Re: Attribution is not required inpublicdomainmaterials
>
>
>
>
>>
>>
>>
>Is it unethical and morally objectionable to pass the work of another off as
>one's own? Yes. Should such behavior be actionable once the copyright and
>author's right of attribution are gone? I think not, because the
>consequences of such a rule are worse than the ill it would seek to cure.
>
>Kevin Grierson
>
>
>Kevin W. Grierson
>Willcox & Savage, P.C.
>One Commercial Place, Ste. 1800
>Norfolk, Virginia 23510
>
>mailto:kgrierson[_at_]wilsav.com
>ph: 757/628-5603 fx: 757/628-5566
>http://wilsav.com
>Sign up for our E-Commerce Newsletter at
>http://wilsav.com/nep/news_signup.html
>
>
>
>>>>mlandau[_at_]gsu.edu 06/04/03 09:34AM >>>
>>>>
>>>>
>What is wrong with requiring attribution?
>
>If there is no false designation of origin, then there is no Lanhgam 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.
>
> 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?
>
>I think that it is not a good decision.
>
>
>Michael Landau
>Georgia State
>
>
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-- 
S. Warwick
swarwick[_at_]sprynet.com

"I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations."
John Madison Speech in the Virginia Convention [June 16, 1788]