June 02, 2003
Yesterday the US Supreme Court held that the Latham Act does not require that the author of a derivative of a public domain work credit the creator of the original idea in DASTAR CORP. V. TWENTIETH CENTURY FOXFILM CORP.
In this case, Dastar took a creative work in the public domain (videotapes of a TV series on WWII), copied it, made modifications (arguably minor), and produced its very own series of videotapes which it marketed under its own brand. Fox argued that Dastar violated the the Latham Act, which prohibits “a false designation of origin,” because it 'misrepresented' Fox's goods or services as a Dastar product (so-called reverse passing off). The Court rejected this argument, holding that Dastar was the 'origin' of the videotapes, because they produced the tapes. It said:
"In sum, reading the phrase “origin of goods” in the Lanham Act in accordance with the Act’s common-law foundations (which were not designed to protect originality or creativity), and in light of the copyright and patent laws (which were), we conclude that the phrase refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. Cf. 17 U.S.C. § 202 (distinguishing between a copyrighted work and “any material object in which the work is embodied”). To hold otherwise would be akin to finding that §43(a) created a species of perpetual patent and copyright, which Congress may not do. See Eldred v. Ashcroft, 537 U.S. 186, 208 (2003)."
So at least here, the Court was not willing to let creators expand their copy-rights to require users of public domain materials to cite original authors when they publish their new, innovative, and creative works.