Thoughts on Dastar from a Copyright Perspective: A Welcome Step toward Respite for the Public Domain

University of Baltimore Intellectual Property Law Journal, Vol. 11, Nos. 1 & 2, Fall 2002-Spring 2003

19 Pages Posted: 16 Jul 2008  

Lynn McLain

University of Baltimore - School of Law

Abstract

Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.

This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both ยง 43 of the Lanham Act and the right of publicity. Finally, it will hail the Supreme Court's decision in Dastar as a hopeful sign that the Court will reject the approach of the more expansive cases that have hampered the free use of works in the public domain.

Keywords: copyright, patent, trademark, public domain, Lanham Act, Dastar

JEL Classification: O34, O38, O39

Suggested Citation

McLain, Lynn, Thoughts on Dastar from a Copyright Perspective: A Welcome Step toward Respite for the Public Domain. University of Baltimore Intellectual Property Law Journal, Vol. 11, Nos. 1 & 2, Fall 2002-Spring 2003. Available at SSRN: https://ssrn.com/abstract=1161281

Lynn McLain (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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