there is any doubt about whether a reader, listener, or viewer would be misled into thinking that a work is entirely original when it is not, clear attribution is essential for both expressions and ideas. Attribution will not necessarily prevent a successful lawsuit for copyright infringement, but it can at least alleviate perceptions of plagiarism.
In June 1998, Boston Globe columnist Patricia Smith was forced to resign after she admitted she had fictionalized quotes and characters in her columns over the years. Two months later Mike Barnicle, another columnist at the same newspaper, was suspended and then asked to resign after he wrote a column with jokes that were similar to those in comedian George Carlin's best-selling book, Brain Droppings. Barnicle initially refused to resign and eventually left.
Trademarks have considerable protection under both state and federal law, but trademark holders must take aggressive steps to ensure that their marks do not become diluted and risk going into the public domain. Most advertisers and other commercial and noncommercial enterprises also constantly monitor the use of their trademarks for possible infringement while making sure that they treat the trademarks of others with appropriate respect.
Copyright is strictly a federal matter thanks to the Copyright Act of 1976, which eliminated state copyright laws and common law copyright. The Act made other substantial changes in copyright law, not the least of which was significantly increasing the amount and duration of copyright protection for original works of authorship. Public perceptions and even those of communication professionals still consist of myths and distortions that bear little relationship to the real world of copyright. Many writers and artists still find it difficult to believe that copyright protection exists automatically on creation of a work in a tangible medium without benefit of registration and that attribution alone does not protect one from a successful infringement suit. The concept of fair use is even more difficult to comprehend, and the courts as well as Congress have added to the confusion.
Nevertheless, the new federal copyright statute is a powerful arsenal for the creators of original works of authorship. The fact that copyrighted works, other than works made for hire and anonymous works, are protected for 70 years beyond the last surviving author's death reflects the tone of law. It is an authors' law -- plain and simple -- and journalists must be cautious in using the expressions of others. The law is not very forgiving, as attested by its provisions granting remedies from injunctions and damages to criminal penalties.
Congress continues to fill in the gaps that are occasionally detected by the courts, especially as the development of new technologies from electronic digitalization to distance education via the Internet becomes more prevalent. The Fair Use doctrine continues to add to the confusion, but new guidelines such as those drafted for educational multimedia by the Consortium of College and University Media Centers are a positive step. Cutting-edge technologies will also continue to be developed to thwart would-be pirates, such as encryption techniques to curb the illegal copying of movies and music, including those delivered via modems, cable, and satellite. 224