The Supreme Court ruled this summer that the Lanham Act does not prevent the uncredited copying of an uncopyrighted work (see Dastar v. Fox, 123 S. Ct. 2041(2003)). In a unanimous decision delivered by Justice Antonin Scalia, the Court ruled that Dastar's copying, editing and redistribution of tapes of a television documentary first aired in 1949 did not constitute an infringement under the Lanham Act. The Court's rationale was based on the fact that Dastar was the originator of the actual materials it sold, and used tapes in the public domain to create its product. Fox's copyright on the original materials had expired in 1977, placing the documentary in the public domain. Fox reacquired the television rights in 1988.
Fox owned the copyright to a 1949 broadcast documentary based on former President Dwight D. Eisenhower's book Crusade in Europe. Dastar released its own video set using the tapes of the 1949 broadcast and sold it without crediting Fox as creator of the original documentary from which Dastar's product had been created. The Court reversed and remanded the 9th Circuit's earlier ruling, which had held Dastar liable for $1.6 million under Section 43(a) of the Lanham Act, which prohibits the commercial use of "any word, term, name, symbol, or device, or any combination," without attributing any of the above to the original author (¤43 (15 U.S.C. 1125).) The fact that the materials in question had passed into the public domain once the copying occurred weighed heavily in the decision. As the Intellectual Property and Litigation Reporter (IPLR) notes, "Once the copyright in a work expires, not only is the right to prevent copying lost, the author may also lose the right to get any credit at all for the work which it is copied and sold to others,"
Although the Court's decision is significant regarding the extent to which the Lanham Act protects copyright holders, it is "entirely consistent with the intent espoused in (the Court's) unanimous decisions of the recent past refusing to extend Ôtrademark and related protections into areas traditionally occupied by patent or copyright,'" and is thus only concerned with Section 43(a) rather than with the Act in its entirety, IPLR added.
Delaware Law Weekly also concluded that the Court's decision in Dastar is similar to that of Eldred v. Ashcroft. In that case, the Court upheld legislative amendments extending the copyright term for authors by an additional 20 years, thus increasing the amount of time before an author's work enters the public domain (See Eldred v. Ashcroft, 123 S.Ct 1505 (2003); see also "Recent Developments in Copyright Law: Copyright Term Extension Upheld as Constitutional" in the Winter 2003 issue of the Silha Bulletin.) According to Delaware Law Weekly, "The court struck a balance in the cases: It deferred to legislation extending the time a work may be held out of the public domain, but granted substantial freedom to subsequent users of works already in the public domain because of the copyright's expiration. In the end, that balance is consistent with traditional copyright analysis and long-standing precedent."
Traditionally, the Supreme Court rarely takes cases involving copyright. When it does, it generally defers to Congress rather than to the Constitution. The Court's opinion in Dastar v. Fox is not unusual in that the Court again referred to congressional determinations to guide its decision. However, this case could prompt copyright holders to pressure Congress to further extend how long works are kept out of the public realm.
Silha Research Assistant