Essay - the Author's Name as a Trademark: A Perverse Perspective on the Moral Right of 'Paternity'?

Abstract

The US Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this right as flowing from the creative act, the attribution right also properly derives from trademark law, because the author's name gives her work a brand image that informs consumers' choices of literary and artistic works.

In trademark law, the brand name identifies the entity that controls the production of the goods, who is responsible for their quality. Translated to works of authorship, this would mean that the act warranting name credit is that of controlling the carrying out of the creation, rather than of creation as such. In copyright, however, the same concept could logically lead to depriving any employed creator, as well as a fair number of freelancers, of any right to impose their names on their works, because the employer or commissioning party will usually have the last word regarding the form or content of the creation. It is therefore necessary to propose a more nuanced approach: if the creator has enjoyed autonomy in the creative process, even if the work was made on demand, the creator has engaged in intellectual labor that justifies treating the creator as the 'source' of the work. Any other approach would end up denying the role of creativity in copyright. But, as this Essay proposes to show, to reject all trademark-based rationales for attribution rights leads to other paradoxes.

JEL Classification: O34