Re: Transfer of ownership

The problem with the Lanham Act is that, unlike common law actions that die with the author, rights under the Lanham Act can (in theory, at least) last forever, so long as some corporate successor to the copyright owner survives. A right of attribution that dies with the author, I can live with; using the Lanham Act to extend the right of attribution forever, particularly for corporate copyright owners, seems silly (Though doubtless Disney and others would disagree).

Keep in mind that the Dastar case involved a copyright that was owned by a corporation and not an individual. It is my understanding that moral rights cannot be owned by corporate entities, but are personal to the author. Under the VARA, at least, no work made for hire qualifies for rights of attribution or integrity at all.

kwg

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

>>> tja[_at_]mds.rmit.edu.au 05/28/04 01:30PM >>> Kevin Grierson wrote:
> It's important to remember that (apart from the Visual
> Artists' Rights Act) U.S. Copyright law does not recognize
> the right of attribution. And IMHO, it would be a big
> mistake to allow the use of the Lanham Act as a substitute.

A Senate Report on the Berne Convention Implementation Act in 1988 (Senate Report 100-352) claimed that equivalent rights were already recognized in the USA under:

• common law defamation,
• common law misrepresentation or unfair competition, and
• § 43(a) of the Lanham Act, 15 USC § 1125(a)(1)(A). It is not a mistake. It was the stated intent of the legislature at the time and it was the basis on which the US was admitted (recognizing that the UK and other common law jurisdictions relied on similar causes to satisfy 6bis).

I actually think this is quite a reasonable position http://www.law.cornell.edu/treaties/berne/6bis.html If you read the article, defamation and passing off (similar to Lanham Act actions not involving registered names) combined seem to satisfy (1) as the article is confined to occurrences that are "prejudicial to his honor or reputation".

Of course these common law actions expire on the death of the injured party (the author) but (2) says that is okay.

These causes of action effectively confer a negative right of no false attribution rather than a positive right to attribution, which is the European tradition. Until recently, other common law jurisdictions (UK, Canada, Australia, and New Zealand) have taken the same line but they have all added new moral rights provisions as part of their copyright statutes in the last 15 years.

-- 
| Tim Arnold-Moore, Ph.D., LL.B., B.Sc. (Hons)
| Address:  RMIT Multimedia Database Systems
|           GPO Box 2476V (Rm 91.03.08)
|           Melbourne 3001
|           AUSTRALIA
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|	simul iustus et peccator


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