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The Trademark Function of Authorship

73 Pages Posted: 28 Jan 2005  

Greg Lastowka

Rutgers School of Law

Date Written: February 3, 2005

Abstract

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 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 recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp. (2003), 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 authorship marks are sufficiently analogous to trademarks that 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.

Keywords: trademark, copyright, intellectual property, Dastar

JEL Classification: K12

Suggested Citation

Lastowka, Greg, The Trademark Function of Authorship (February 3, 2005). Available at SSRN: https://ssrn.com/abstract=656138 or http://dx.doi.org/10.2139/ssrn.656138

Greg Lastowka (Contact Author)

Rutgers School of Law ( email )

NJ
United States

HOME PAGE: http://lastowka.rutgers.edu

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