Things are more like they are now than they ever were before.--Dwight D. Eisenhower (1)
Though the term of copyright protection has been constitutionally extended again and again by Congress, (2) when a copyright finally does expire, the work passes into the public domain and belongs to all of us. (3) Nevertheless, it was at the crossroads of copyright and trademark law that certainty of this longstanding principle became unclear. Keeping works that were already in the public domain free from former copyright owners who would use trademark law to extend their hold on those works indefinitely proved to be a challenge. Recently, however, the battle to defend the public domain from permanent capture has met with some success. According to the United States Supreme Court in Dastar Corp. v. Twentieth Century Fox Film Corp., (4) the Lanham Act, (5) which governs trademarks and commercial advertising, does not protect creative works in the public domain from uncredited copying under the guise of trademark law. (6)
The essence of the Court's holding in Dastar was that the phrase "origin" of "goods" as used in section 43(a) of the Lanham Act (7) refers to the producer of the tangible goods that are offered for sale, and not to the author of an idea or communication embodied in those goods. (8) There is no federal moral right of attribution that persists even after a previously copyrighted work has entered the public domain. The proper type of protection to ensure an author's exclusive rights is copyright law, and the right to copy and distribute a work without attribution passes to the public upon its expiration. Following the Supreme Court's recent decision in Eldred v. Ashcroft, (9) which upheld the latest 20-year extension of the copyright term, Dastar is a most welcome articulation of the Court's faith in the public domain. Moreover, in Eldred and Dastar, the Court has sought to strike a balance between the rights of copyright owners and the rights of the public to use and adapt works whose copyrights have expired and are therefore in the public domain.
In this essay, I begin with a review of the factual and procedural background of the Dastar litigation, followed by an analysis of the Supreme Court's decision and rationale. Finally, I assess the significance and implications of the Court's holding for intellectual property rights holders and, more broadly, for the public domain.
I. BODILY APPROPRIATION: THE PRELUDE TO CERTIORARI
The dispute in Dastar has its roots in World War II. In 1948, former President Dwight D. Eisenhower completed a book entitled Crusade in Europe, (10) which was his first-hand account of the Allied campaign in Europe during the Second World War. (11) He sold all rights to the book to Doubleday, which then published the book, registered the copyright on it within 1948, and granted exclusive television rights to an affiliate of Twentieth Century Fox Film Corporation. Fox then arranged for Time, Inc. to produce a television series based on the book, also entitled "Crusade in Europe." Time, in turn, assigned its copyright in the series to Fox. The television series, consisting of 26 half-hour episodes, was initially broadcast in 1949. (12) It combined a soundtrack of Eisenhower's narration based on the book with vintage film footage as a means of recounting Eisenhower's personal experiences during the war. (13)
In 1975, Doubleday renewed the copyright on the book, but did not renew the copyright on the "Crusade" television series, which expired in 1977, allowing the television series to fall into the public domain. (14) In 1988, Fox reacquired the television rights in Eisenhower's book, including the exclusive right to distribute the "Crusade" television series on video and to sublicense others to do the same. (15) SFM Entertainment and New Line Home Video, Inc., in turn, acquired from Fox the exclusive rights to distribute "Crusade" on video. SFM obtained the negatives of the original television series, restored them, and repackaged the series on videotape. …