American Moral Rights and Fixing the 'Dastar Gap'

Abstract

When the United States acceded to the Berne Convention in 1988, Congress concluded that a compendium of causes of action under American law, including Lanham Act claims, provided the moral rights protections mandated by Berne Article 6bis. This claim of patchwork protection of moral rights has always been widely criticized, but became more dubious in the wake of the Supreme Court's 2003 decision in Dastar v. Twentieth Century Fox. In Dastar, the Court held that vis-a-vis works in the public domain there is no Lanham section 43(a) obligation to credit the original creator or copyright owner as the origin of the work.

The Dastar ruling was unquestionably important for a robust public domain, but makes it more difficult for the United States to claim that it provides Article 6bis protection. This paper concludes that Dastar reached the right result in a poorly reasoned way, but that Justice Scalia's opinion, properly read, is much narrow than many believe. The paper concludes that American scholars who have been critical of the patchwork protection argument have often been unfamiliar with Berne implementation in other countries and have not judged the U.S.'s Berne compliance by public international law standards.

Keywords: moral rights, Lanham Act, Dastar