A Crusade in the Public Domain: The Dastar Decision

Abstract:     
Keeping works that are 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. According to the United Supreme Court in Dastar Corp. v. Twentieth Century Fox Film Corp., the Lanham Act, which governs trademarks and commercial advertising, does not protect creative works in the public domain from uncredited copying under the guise of trademark law. 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.

Number of Pages in PDF File: 15

Keywords: copyright, trademark, public domain, intellectual property

JEL Classification: K10, K19, K20, K29, K39, K41, L15

Accepted Paper Series