very important news item from AP via the WSJ Online

["jesposito" <jesposito@xxxxxxxxxxxx>]

LAW

A Trademark-Law Ruling
Goes Against 20th Century Fox
Associated Press
WASHINGTON -- The Supreme Court ruled on Monday that a video company
cannot be sued under a trademark law for reusing old war-documentary
footage without giving credit to 20th Century Fox.
The 8-0 decision gives some freedom to people who want to reproduce
works that no longer have copyright protection.
Justice Antonin Scalia said that the trademark law, which is intended to
protect consumers from confusion, doesn't allow creators to claim
plagiarism when their uncopyrighted works and inventions are used.
The original documentary was "Crusade in Europe." Dastar Corp. deleted
one hour, added a half hour of new material, then sold tape sets for
about $25 as "Campaigns in Europe."
Justice Scalia said that Dastar could have been sued if it bought
videotapes of "Crusade in Europe," repackaged them and put them on the
market under the Dastar name.
Instead, he said, the company made some changes and cannot be held
liable for misleading the public about the origin of the work.
"The consumer who buys a branded product does not automatically assume
that the brand-name company is the same entity that came up with the
idea for the product -- and typically does not care whether it is,"
Justice Scalia wrote in the opinion.
The court had been asked to decide if the video distributor should turn
over its profits, and pay damages over the use of the documentary, based
on Dwight Eisenhower's memoirs. A judge had ordered the company to pay
$1.5 million.
The documentary, which was made by Time Inc. for Fox, didn't have
copyright protection when Dastar used it for its own video in 1995 --
the 50th anniversary of the end of World War II. Dastar sold more than
35,000 copies of "Campaigns in Europe," court records show.
Justice Scalia said that if creative producers were required under the
trademark law to attribute the origin of any uncopyrighted materials
they used, it would be difficult.
"We do not think the Lanham Act requires this search for the source of
the Nile and all its tributaries," he wrote.
The Bush administration and other groups including the American Library
Association had supported Dastar.
Justice Stephen Breyer didn't take part in the case because his brother,
a judge in California, was involved in the case in lower courts. (Dastar
Corp. v. 20th Century Fox Film Corp.)
Copyright (c) 2003 Associated Press


Joseph J. Esposito
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