A creative work passes into the public domain once its copyright
expires. In other words, pursuant to the rules set out in Federal
Copyright Laws the protection afforded an author to exclusively promote her
creative work expires. When this occurs and the work enters the public
domain, the following question arises: Does a person who later publishes
the previously-copyrighted creative work have to designate the original
source? The United States Supreme Court recently answered “no” to that
question.
In Dastar Corporation v. Twentieth Century Fox Film
Corporation, the Supreme Court was asked to determine whether §43(a) of the
Lanham Act (which deals with false designations of origin) prevents the
unaccredited copying of a public domain work.
In 1948, General Dwight
D. Eisenhower completed a written account of the Allied campaign in Europe
entitled, Crusade In Europe. Doubleday published and copy-righted
Crusade in Europe that same year. Doubleday also granted exclusive
television rights to Twentieth Century Fox Film Corporation. Fox
then arranged for Time, Inc. to produce a television series, also entitled
“Crusade in Europe,” and Time assigned its copyrights in this
series to Fox. In 1975, Doubleday renewed its copyright in the book
version of Crusade In Europe, but Fox did not renew its copyright in the
television version of Crusade In Europe, thereby leaving the television
series in the public domain. In 1988, Fox again purchased the television
rights to the book, together with the exclusive right to distribute the series
on video and to sublicense others to do so. SFM Entertain-ment and New
Line Home Video, Inc. acquired from Fox the right to distribute the series on
video.
In 1995, a company known as Dastar, released a video set entitled: World
War II Campaigns in Europe (“Campaigns”). In producing this
video set, Dastar had purchased part of the original version of the Crusade
In Europe television series, which (unlike the book version) was now
in the public domain. Dastar copied and made some minor editing changes to
the television series, then released it as Campaigns, with no reference
to the Crusade In Europe television series.
Dastar’s actions gave rise to Fox filing a lawsuit against Dastar. Fox
claimed that, by marketing and selling Campaigns as its own product
without acknowledging its reliance on the Crusade television series, Dastar had
made a ‘false designation of origin, false or misleading description of fact,
which… is likely to cause confusion…as to the origin… of his or her
goods.” This case ultimately boiled down to the meaning of the word
“origin,” as used in the Lanham Act, with respect to communicative concepts or
ideas.
The Supreme Court sided with Dastar, reasoning that the phrase “origin of
goods” in the Lanham Act, as supported by the Act’s common law foundations,
refers only to the producer of tangible goods that are offered for sale, and not
to the author of any idea, concept, or communication embodied in those
goods. Writing for the unanimous court, Justice Antonin Scalia noted that
"[t]he Lanham Act does not exist to reward manufacturers for their innovation;
that is the purpose of the patent law and its period of exclusivity," and that
"[t]o hold otherwise would be akin to finding that the Lanham Act created a
species of perpetual patent and copyright, which Congress may not do."
In sum, the Supreme Court held that Dastar was the “origin” of the
Campaigns video it sold as its own, and, therefore, Fox could not
prevail on its Lanham Act “false designation of origin” claim. The Supreme
Court’s holding makes clear that, if copy-rights are not carefully preserved and
extended, they truly become public property, and are available for use – or
resale – without attribution.
