Re: Right of attribution

In answer to the question of whether U.S. law contains a non-copyright analogue to the moral right of attribution, Micah Stolowitz writes:

>The Lanham Act's section 43(a) may apply. It provides a civil cause
>of action, as you know, for any "false designation of origin." Seems
>like claiming authorship inaccurately could be a false designation of
>origin. The "in commerce" requirement is very loose under the Lanham
>Act -- being defined expressly as anything subject to regulation by
>Congress. Moreover, I believe that standing requirements are loose
>as well -- the purpose of the Act being to protect the general public
>from confusion as to source. Does the Copyright Act preempt such an
>unfair competition claim??

     The Copyright Act does not preempt a claim under the Lanham Act. Section 301(d) of the Copyright Act provides specifically that nothing in the Copyright Act "annuls or limits any rights or remedies under any other Federal statute." The Copyright Act may preempt state unfair competition actions in certain circumstances, but that is another thread.

     However, there are at least three ways in which Section 43(a) falls short of the right of attribution as in force in many civil law countries.

     First, while the "in commerce" requirement may be loose, it still is a requirement and there still is the additional requirement of consumer confusion. So as Mark Lemley says, it is doubtful that the failure to give attribution to a long quote in a law review article would be actionable under the Lanham Act.

     Second, while courts have applied Section 43(a) to cases of misattribution (e.g., Lamothe v. Atlantic Recording Corp., 847 F.2d 1903 (9th Cir. 1988)), no case of which I am aware has applied the Section against the simple failure to attribute any authorship at all. (In Lamothe, for example, the name of one of several joint authors was deleted, which made it appear that the remaining authors were exclusively responsible for the work.)

     Third, an author's quasi-right of attribution under the Lanham Act is probably waivable by the author. It is hard to imagine that a U.S. court would allow a ghostwriter who has contracted to write a book under another's name to later insist upon receiving authorship credit -- although the consumer protection rationale of the Lanham Act would suggest that the ghostwriter should be able to so. In contrast, in a recent case, the Paris Court of Appeals refused to recognize a ghostwriter's waiver of the attribution right, even though the contract was made in and governed by the laws of New York!

Neil Netanel
Assistant Professor
University of Texas School of Law
<nnetanel[_at_]mail.law.utexas.edu> Received on Wed Dec 07 1994 - 20:25:45 GMT