Nu, post this on mcn-l !
----- Original Message -----
From: <mailto:[email protected]>Robert A. Baron
To: <mailto:[email protected]>Amalyah Keshet
Sent: Wednesday, June 04, 2003 3:06 PM
Subject: Re: IP SIG: Important Victory for the Public Domain
Amalyah,
Here is my own take on this case (with a useful comment by another):
The recent Supreme Court decision in DASTAR CORP. v. TWENTIETH CENTURY FOX
FILM CORP would seem to have significant repercussions for both scholars
and artists. It defines the distinction between the application of
copyright and trademark, specifically noting that no right of attribution
is attached to works that have entered the public domain, noting in
passing that the right of attribution provided under VARA (The Visual
Artist's Rights Act) only endures until the creator's death. At the same
time, it reserves the use of trademark to identify who is providing
trademark goods as opposed to who is the original creator.
Scholars may find it disquieting to discover that the reproduction of
works in the public domain by law need not be identified as the work of
their respective authors. For instance, I can now place an image of the
Mona Lisa on a website and claim that it is by someone else other than
Leonardo; by me, for instance. But is this altogether bad? In some ways it
would seem to clarify the very process of attribution in which scholars
engage, without relieving scholars of their obligation to identify works
responsibly -- an obligation defined not by law, but by the ethics of
their profession. It opens a legal door to the process of re-attribution
-- an activity that seems to inspire is own share of ire.
Justice Scalia, who wrote the decision, indicates that having to report
the creative origins of a work covered by trademark will place an unwieldy
burden on the trade of goods, since that requirement of necessity will
expand to an obligation to report all the up-stream creators -- and will
be confusing to customers who don't really care about that stuff.
Specifically, he says: "We do not think the Lanham Act requires this
search for the source of the Nile and all its tributaries."
Parenthetically, I'll note that this argument seems to be a variant on one
frequently cited to justify the public domain -- that it is impossible to
report and reward every source and every quote (consciously or not)
underlying a current work of creation.
In addition, one should note that Scalia seems to be taking back some of
the harsh rhetoric against the public domain that appeared in Ruth Bader
Ginsburg's decision in the Eldred case. She denied that copyright law
created the bargain between copyright holders and users whereby copyright
was awarded for a limited time and the public would have unfettered access
afterward. (My use of "unfettered" may wrongly describe the nature of the
bargain, though many people think of it that way.) He says: "The rights of
a patentee or copyright holder are part of a `carefully crafted bargain,'
under which, once the patent or copyright monopoly has expired, the public
may use the invention or work at will and with-out attribution.Having
spent a very short time in limbo, the court has now restored the bargain
as the foundation of copyright.
As an art historian, I wonder how this decision might affect the
protection of artistic style. Copyright doesn't protect style -- and
shouldn't; but, some creators have used the Lanham Act to justify the
protection of style as "trade dress. "Imagine if Picasso claimed that he
invented Cubism, and nobody else could practice it. If a person can
reproduce a public domain work and attribute it (within the bounds of
legality) to himself, since style is not protected under copyright, can an
artist appropriate the style of a predecessor whose works are not so
protected and claim it as his own for the purpose of reserving its
exclusive use for himself? The Dastar decision doesn't seem to have
answered every conflict between trademark and copyright.
ยป posted by <http://www.studiolo.org/index.htm>Robert Baron on Jun 3 03 at
1:51 PM
Regarding the comment made by Robert Baron:
Although it is possible for trademark to grant very limited protection to
one's style, this does not prevent anyone from copying the same style.
What the copier cannot do is to create a new trade dress using the same
style in commercial environment that will confuse the customers as who is
the origin of the tangible things.
Likewise, if I find a very old logo in a book that is published before
1923 and that logo is still in use, I can still copy the logo that
contains copyrightable elements to any of my works as long as the logo is
not displayed in conspicuous places that will confuse the customers.
Unlike patent and copyright, trademark is very sensitive to the context
that it appears in.
Joseph Pietro Riolo <[email protected]>
At 09:22 AM 6/4/2003 +0200, you wrote:
>Important Victory for the Public Domain
>
>[from SIVACRACY.NET: Siva Vaidhyanathan' Weblog
><<http://www.nyu.edu/classes/siva/>http://www.nyu.edu/classes/siva/>http:
//www.nyu.edu/classes/siva/]
>
>According to Michael Geist of BNA:
>
>The U.S. Supreme Court yesterday issued its decision in
>Dastar v. 20th Century Fox, a Lanham Act suit over the use
>of public domain footage of a documentary. The court ruled
>against Fox, finding that trademark law does not prohibit
>the use of public domain or uncopyrighted material without
>giving credit to its source.
>
>Decision at:
<<http://www.supremecourtus.gov/opinions/02pdf/02-428.pdf>http://www.supremecourtus.gov/opinions/02pdf/02-428.pdf>this
>site in PDF
form.
<http://www.supremecourtus.gov/opinions/02pdf/02-428.pdf>http://www.supremecourtus.gov/opinions/02pdf/02-428.pdf
>
>Coverage from
<<http://www.nytimes.com/2003/06/03/politics/03SCOT.html>http://www.nytimes.com/2003/06/03/politics/03SCOT.html>The
>New York
Times.
<http://www.nytimes.com/2003/06/03/politics/03SCOT.html>http://www.nytimes.com/2003/06/03/politics/03SCOT.html
>"To hold otherwise, Justice Scalia said, would amount to the judicial
>creation of "a species of mutant copyright law." Quoting an earlier
>decision, he said that patents and copyrights offered a "carefully crafted
>bargain," a temporary monopoly after which "the public may use the
>invention or work at will and without attribution."
>
>
>
>
>amalyah keshet
>head of image resources & copyright management
>the israel museum,
jerusalem <<http://www.imj.org.il>http://www.imj.org.il>www.imj.org.il
>tel +972-2-670-8874
>fax +972-2-670-8064
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Robert A. Baron
<mailto:[email protected]>mailto:[email protected]
http://www.studiolo.org
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