Re: A Little Linguistic Playground

On 03/29/99, Jason Vogel <jasonvogel[_at_]ibm.net> wrote:
>
> On Thu, 25 Mar 1999, Lance Purple <lpurple[_at_]netcom.com> wrote:
> >
> > On Wed, 24 Mar 1999, Jason Vogel <jasonvogel[_at_]ibm.net> writes:
> > >
> > > The thing I can't understand about this whole "decopyright"
> > > conversation is why anyone would want to do it. It seems to me that
> > > by abandoning your copyright you would enable others to repackage
> > > and sell the very expression you intended to be freely available.
> >
> > If the works are freely available, then of course anyone can try to
> > charge money for them. Dover Books already charges money for copies
> > of public domain works; at the same time that Project Gutenberg is
> > giving them away for free. I don't see why a "decopyrighter" would
> > object to this.
>
> Another disadvantage to decopyrighting arises from the fact that there's
> no right of attribution in U.S. copyright law. Thus, a decopyrighter's
> expression could be repackaged and sold without credit. Here too, a
> license would seem preferable.

In most cases that are likely to arise, the Lanham Act provides protection equivalent to a "right of attribution."

The interesting question is whether an author who expressly abandoned his or her copyright without any conditions could enforce a Lanham Act claim for attribution. Material that is truly in the public domain doesn't require any attribution. So, if one CAN enforce the Lanham Act claim even after abandoning the copyright, can it really be said to be in the public domain?

Since there is uncertainty, Jason is correct: if you want to insist on attribution, you should retain the copyright and grant a license to the public, conditioned on proper attribution. The license will be enforceable on an estoppel or waiver theory, but it probably will not be irrevocable. If you truly want to dedicate your work to the public domain by abandoning the copyright, be prepared to do so without conditions.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Tue Mar 30 1999 - 19:51:26 GMT