The Right to Claim Authorship in U.S. Copyright and Trademarks Law
Abstract
The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included the right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever one's conception of the philosophical or policy basis for copyright. That is, whether one sees copyright as a personality right conferring on the author the ownership of the fruits of her labor, or as an economic incentive scheme to promote the production of works of authorship, or as a public works program designed to fill the public domain, (or, most accurately, as a combination of the three), giving credit where it is due is fully compatible with both the author-regarding and the public-regarding aspects of these goals.
Most national copyright laws guarantee the right of attribution (or paternity); the leading international copyright treaty, the Berne Convention, requires that Member States protect other Members' authors' right to claim authorship. For a time, it seemed as if the Lanham Federal Trademarks Act provided partial coverage: by making false and confusing designations of origin actionable, the Act - many thought - afforded authors relief against misattributions of authorship. Even so, the trademarks law would only have reprimanded giving credit to one to whom credit was not due; it would not have afforded an affirmative right to claim authorship. In other words, giving incorrect credit may have been actionable; giving no credit was not.
Last June, however, the US Supreme Court interpreted the Lanham Act to deny false attribution claims as to the origin of a communicative product. The Court thus drastically limited invocation of the trademarks law to enforce authors' interests in being recognized as the creators of their works. In the wake of Dastar v. Twentieth Century Fox, what recourse do authors have in the US to claim authorship? I will first address the Dastar decision, to discern if any residue of attribution rights remains under the Lanham Act. Next, I will consider the extent to which the Copyright Act does, or might, afford attribution rights. That inquiry leads to the (despondent) answer that in the U.S. neither the copyright nor the trademarks laws establish a right of attribution generally applicable to all creators of all types of works of authorship. After examining other common law countries' recent enactments protecting attribution rights, I propose an amendment to the U.S. Copyright Act to add a federal right of attribution of authorship.