There is no doubt in my mind that the U.S. is not in compliance with
Article 6bis of the Berne Convention, and that the "finding" to the
contrary in the legislative history of the 1988 Berne Convention
Implementation Act, claiming that we are in compliance because of
Section 43(a) of the Lanham Act, is fooling no one. Why else would the
U.S. insist that the TRIPs Agreement, which makes the provisions of the
Berne Convention enforceable between nations, specifically exempt
Article 6bis from its coverage?
>>> dot4bren[_at_]adelphia.net 06/10/03 08:01AM >>>
Although Professor Ochoa view seem logical, the United States took a
different view in its Amicus brief in support of petitioner. The brief
is
available on line at
http://www.usdoj.gov/osg/briefs/2002/3mer/1ami/2002-0428.mer.ami.html
In its brief, the United States posits that misattribution may still
be
actionable under the Lanham Act:
"Section 43(a) of the Lanham Act was designed to prevent passing off,
the
classic example of unfair competition. But lower courts have concluded
that
Section 43(a) also applies to certain types of reverse passing off.
For
example, in one leading case, the court held that Section 43(a) was
violated
when the distributor of a movie misattributed the name of the star of
the
film in the movie's advertising and credits by replacing the name of
the
actor who starred in the film with the name of someone who did not
even
appear in it. Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981). So too,
courts
have concluded that Section 43(a) prevents a producer from obtaining
the
goods manufactured by a competitor, obliterating the competitor's mark,
and
then relabeling and reselling the same goods as the producer's own.
Although
they fall outside the heartland of Lanham Act protections, such
misattribution and relabeling cases can be squared with a careful
textual
analysis of Section 43(a)."
The brief continues
"At the same time, however, Section 43(a) should not be construed in a
manner that would establish a generalized duty on the part of producers
to
credit the original creators of works. Such a construction could
overextend
the Lanham Act by giving the original creators of works a perpetual
trademark right to prevent the uncredited copying of a work, even after
the
work is no longer subject to copyright or patent protection from such
copying."
The interest of the United States as identified at the beginning of
the
brief included a reference to the Berne Convention to which the United
States adhered in 1989:
"This case concerns the circumstances in which the Trademark Act of
1946 (La
nham Act), 15 U.S.C. 1125(a), prevents the uncredited copying of a
work. The
United States has a strong interest in promoting the pro-competitive
policies underlying the Nation's trademark and antitrust laws, and in
preventing consumer confusion as to the source of goods or services.
The
United States also has a substantial interest in ensuring that domestic
law
is consistent with the United States' international obligations under
the
Berne Convention for the Protection of Literary and Artistic Works,
828
U.N.T.S. 221, to which the United States has acceded. See Berne
Convention
Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853. In
addition, the United States and its agencies are subject to suit under
the
Lanham Act. 15 U.S.C. 1122(a)."
The Amicus brief noted U.S. compliance with the moral rights provision
of
Berne.
"In acceding to the Berne Convention, Congress carefully considered
the
United States' obligations under Article 6bis and concluded that the
protections available under then-existing domestic law, including the
Lanham
Act, were sufficient to meet those obligations. See H.R. Rep. No. 609,
supra, at 38 ("Based on a comparison of its laws with those of Berne
member
countries, and on the current status of Federal and State protections
of the
rights [embodied in Article 6bis], the Committee finds that current
United
States law meets the requirements of Article 6bis."); see id. at 34
n.66
("[T]he totality of our law, including the common law of torts,
provides
protection at a level sufficient to comply with the convention's
[moral
rights] requirements.") (quoting letter from Secretary of Commerce); S.
Rep.
No. 352, 100th Cong., 2d Sess. 9-10 (1988) (considering "various
provisions
of the Copyright Act and Lanham Act, various state statutes, and common
law
principles").
Perhaps the Department of Justice was concerned that eliminating the
remedy
for misattribution as it existed in 1988 could weaken that
Congressional
finding.
Jim Brennan
> >>> keleti[_at_]manifesto.com 06/05/03 07:39AM >>> wrote:
> 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.
> <<<<<
>
>
>
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