Misattribution and Misrepresentation - The Claim for Reverse Passing Off as 'Paternity Right'

Abstract

In common law jurisdictions, both before and after the introduction of statutory moral rights, the 'moral' interests of creators have been protected by courts. One of the most useful tools in this respect has been the tort of passing off. This form of unregistered trade mark protection has been employed regularly in the context of false attribution and breaches of creators' integrity interests. However, outside the US, creators have rarely relied on passing off in the context of attempts to secure acknowledgment of authorship of their work. This situation contrasts with the position in the US, where a statutory provision codifying the action for passing off at federal level, s 43(a) of the Lanham Act, was, between the early 1980s and 2003, used extensively as a form of proxy paternity right, a weapon against misattribution of creative work. The Supreme Court brought this form of action to an end in Dastar Corporation v Twentieth Century Fox Film Corporation. In that decision, the Court identified a number of practical and theoretical problems that would arise if creators' attribution rights were to be protected by unregistered trade mark law. This article considers whether the common law action for passing off in England and Wales has the capacity to develop to protect attribution in the way that s 43 of the Lanham Act was employed before Dastar. It also asks whether such a development would be desirable in the light of the fundamental difficulties identified by the Supreme Court in that case. ,