The Trademark Function of Authorship
Total Page：16
File Type：pdf, Size：1020Kb
THE TRADEMARK FUNCTION OF AUTHORSHIP ∗ GREG LASTOWKA INTRODUCTION ............................................................................................. 1172 I. AUTHORIAL ATTRIBUTION AND SOCIETY.......................................... 1175 A. Attribution as Incentive ............................................................. 1176 B. Attribution as Consumer Protection.......................................... 1179 C. Attribution as Value................................................................... 1180 II. LEGAL REGULATION OF AUTHORIAL ATTRIBUTION ......................... 1185 A. Misattribution and Trademark Law .......................................... 1186 1. Trademark’s Purpose........................................................... 1186 2. Authorship as Trademark .................................................... 1193 3. Authorship vs. Trademark................................................... 1194 B. The Dastar Decision .................................................................. 1200 C. Misattribution and Copyright.................................................... 1210 1. The Meaning of VARA....................................................... 1211 2. Copyright as Collateral Attribution Protection.................... 1214 3. The Attribution/Copyright Mismatch.................................. 1217 D. Misrepresentation and Other Legal Mechanisms...................... 1218 III. AUTHORSHIP, CONSUMERS, AND COLLABORATION .......................... 1221 A. Ghostwriting.............................................................................. 1221 B. Collaborative Authorship and Social Value.............................. 1228 C. The Limits of Attribution Protection.......................................... 1233 1. Extrinsic and Intrinsic Crediting: Vocal Dubbing............... 1234 2. The Inherent Deceptions of Art........................................... 1238 CONCLUSION................................................................................................. 1239 The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to * Assistant Professor of Law, Rutgers School of Law – Camden. Email: [email protected]. For comments and other help, I would like to thank Barton Beebe, Mike Carrier, Mike Carroll, Carol Chase Lastowka, Ellen Goodman, Brian Hirsch, Dan Hunter, Mark Lemley, Beth Noveck, David Post, Kevin Reitz, Rick Swedloff, Scott Thompson, Polk Wagner, and the diligent editors of the Boston University Law Review. I’d also like to thank the faculty at Rutgers School of Law – Camden, the University of Colorado, the University of Cincinnati, the University of Illinois, and the University of Texas. Special thanks are due to Anne Coughlin, who led me into this wilderness of law and authorship, and to Paul Caron, who let me know that rumors of V.C. Andrews’s death were greatly exaggerated. 1171 1172 BOSTON UNIVERSITY LAW REVIEW [Vol. 85:1171 consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive practices were traditionally subject to the remedial mechanisms of trademark and unfair competition laws. However, in a 2003 decision, Dastar Corporation v. Twentieth Century Fox Film Corporation, the United States Supreme Court held that federal trademark law does not address the misattribution of authorship. The Dastar decision stated that trademark protections were designed to protect the creators of tangible products sold in the marketplace. The Court stated that trademark law was not designed to protect the interests of those who originate creative ideas or communications. This article explores society’s interests in ascertaining the authorship of creative works and explains how those interests both resemble and diverge from standard trademark interests. It concludes that as authorship marks are sufficiently analogous to trademarks, the Dastar approach is misguided. Consumers can and should be protected from misattributions of authorship where such misattributions can easily be remedied by law and where the failure to provide such remedies is likely to lead to significant consumer harms. INTRODUCTION A good name is better than precious ointment. 1 The earliest known paintings in existence, the wall paintings in the cave of Chauvet, are marked with what seem to be the handprint signatures of the artists who created them over 30,000 years ago.2 The intended meaning of these handprints is not clear, but they function to fuse an aspect of the artist’s physical identity with the surface of the medium. In essence, they are signatures. Literary signature, which fuses a mark of authorial identity with a text, also has ancient roots. The earliest literary author to sign her name to a work was the ancient Mesopotamian high priestess Enheduanna, who wrote 1 Ecclesiastes 7:1 (King James). See also Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1227 (3d Cir. 1978) (“In his classic ‘Essay on Walking,’ Thoreau expressed the notion that there is nothing in a name. This view has been vigorously rejected by both parties to this [trademark] litigation, not to mention almost all of mankind to whom a name is an important means of identification.”) (citing Ecclesiastes). 2 Corey Field, Copyright, Technology, and Time: Perspectives on “Interactive” as a Term of Art in Copyright Law, 50 J. COPYRIGHT SOC’Y U.S.A. 49, 52 (2003). The handprints were created by blowing pigment over the hand held against the rock surface, creating a “negative” print of the hand. Field leads his article with a photograph of the handprints, but he frames the handprints as a proto-copyright assertion of ownership, not signature. Id. 2005] TRADEMARK FUNCTION OF AUTHORSHIP 1173 poems circa 2300 B.C.3 Centuries later, a version of the Sumerian Epic of Gilgamesh was attributed to the scribe Sin-Leqi-Unninni.4 The practice of artistic signature persists today. It is neither a recent nor an exclusively Western phenomenon.5 Even where works are not signed by artists, one might argue that all artistic works are intimately bound up with the artist’s identity, making the work itself a form of personal signature.6 Works of artistic production generally bear traces that may betray the true identity of the creator.7 In various small details, authors leave unconscious “fingerprints” on their works that, like handwriting, reveal their personal involvement with the creation.8 Just as an actor’s facial expressions, style of walking, or manner of speech may be unconsidered yet potentially expressive, so an artist’s efforts at self-expression are at least partially governed by unconscious mannerisms.9 And obviously, there are some conscious mannerisms that appear in authorial styles – certain skills, themes, interests, and ideologies are reliably associated with particular authors. It should be no surprise that computer-aided algorithmic analysis of handwriting, paint-strokes, and word usage can be used 3 ENHEDUANNA, INANNA, LADY OF LARGEST HEART: POEMS OF THE SUMERIAN HIGH PRIESTESS ENHEDUANNA (Betty De Shong Meador ed. & trans., 2001). 4 SIN-LEQI-UNNINNI, GILGAMESH: TRANSLATED FROM THE SIN-LEQI-UNNINNI VERSION (John Gardner et al., trans. 1985). Sin-Leqi-Unninni’s attributed version was merely a re- telling of the much older Gilgamesh story – it would be called a derivative work in the parlance of copyright law. 5 Cf. Roberta Rosenthal Kwall, The Attribution Right in the United States: Caught in the Crossfire Between Copyright and Section 43(a), 77 WASH. L. REV. 985, 985 (2002) (“The right of attribution recognizes a fundamental truth about human nature.”). 6 See Paul Edward Geller, Toward an Overriding Norm in Copyright: Sign Wealth, REVUE INTERNATIONALE DU DROIT D’AUTEUR, Jan. 1994, at 3, 21 (“Romantic critics [believed that] by virtue of the creative act . authors would necessarily leave the marks of their unique personalities on their works.”). 7 This is not to say that creating such traces is always a goal of artistic production. For instance, those who engage in artistic forgery seek essentially to replicate the known identity traces of another. See GIORGIO VASARI, THE LIVES OF THE ARTISTS 418, 423-24 (Julia Conaway Bondanella & Peter Bondanella trans., Oxford Univ. Press 1998) (1549) (recounting how Michelangelo forged old drawings so that he could return the forged copies and retain the originals, and reporting the infamous sale of a forged ancient Cupid for a seventy ducat premium). Also, it is impossible to speak categorically about “artists,” some of whom make it a point to defy categorical claims about artistry. For instance, Michel DuChamp and Jeff Koons have simply found objects and duplicated or recontextualized them. See, e.g., Rogers v. Koons, 960 F.2d 301, 305 (2d Cir. 1992) (“In his ‘production notes’ Koons stressed that he wanted ‘Puppies’ copied faithfully in the sculpture. For example, he told his artisans the ‘work must be just like photo – features of photo must be captured;’ later, ‘puppies need detail in fur. Details – Just Like Photo!’”). 8 Noah Schactman,