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The Right to Attribution: Benefitting Authors and Sharing Accurate Content in the Public Domain
JENNIFER CHANDLER
This article examines the increasingly important role of attribution in promoting an accurate creative marketplace in the digital era and how copyright law in the United States has failed to protect the attribution rights of authors. A survey of the laws alleged to provide protection for attribution in the United States and an examination of how courts have applied those laws reveals their inadequacies. This article argues that the Copyright Act was designed with a pecuniary economy in mind, and that this design has failed to accommodate the reputation-based economy which progressively shapes the creative marketplace. Therefore, this article proposes that a federal right to attribution is needed. The proposed statute will develop this reputation-based economy, providing a more comprehensive copyright regime that conforms to the public’s expectations.
The debate over copyright law in the United States concerning whether it should be reformed, expanded, or left alone has persisted for a long time. Stark lines have been drawn between those who believe information should be free and those who want to protect and control their works. While these interests seem diametrically opposed, ‘powerful pro-attribution norms exist throughout modern American society,’[1] suggesting that constituents on both sides of the debate acknowledge the significance of attribution. Both creators and consumers ‘generally accept that attribution is important to authors, and that false attribution, especially plagiarism, is a moral wrong.’[2] In spite of this, copyright law as it exists today in the US does not, unlike many other jurisdictions, recognise an attribution right for creators of most works.
Legislators have claimed that, although there is no statutory right to attribution, there are a set of laws that provide essentially the same protection as a formal right. Among this set of laws was §43(a) of the Lanham Act,[3] which had been utilised by creators to enforce an attribution-like right. However, in 2003, the Supreme Court’s decision in Dastar Corp v Twentieth Century Fox Film Corp[4] (‘Dastar’), limited the ability of creators to use trademark law to control attribution of their works. Since Dastar, proposals for inclusion of an attribution right in the copyright regime have been considered, but abandoned as impracticable or in fear of further complicating copyright law.[5] A more recent case, Murphy v Millennium Radio[6] (‘Murphy’), suggests that §1202 of the Digital Millennium Act of 1998 (‘DMCA’)[7] may be a viable option for implementing the right to attribution. Murphy is instructive in demonstrating how attribution rights can be protected across a variety of media. Nonetheless, both Dastar and Murphy demonstrate that without a federal right to attribution, protection, or lack thereof, is left to judicial discretion. Therefore, in order to promote uniformity and afford authors the protection they deserve, this article argues that the U.S. Copyright Act[8] should be amended to include a federal right to attribution modelled after §1202 of the DMCA.
Part one of this paper will explore the longstanding acceptance of attribution as a moral right and survey the laws that have been used to protect that right in the past. Part two will analyse the Court’s decision in Dastar and how that decision limited the ability of authors to protect their attribution rights. Part three will examine the Murphy Court’s application of §1202 of the DMCA, while considering whether future courts will follow this approach. Finally, Part four will propose a §1202-like statutory right to attribution, which can withstand the criticism of prior proposals.
The concept of attribution, if not innate, is embedded in people at a very young age. As Stuart P Green, explained:
we begin with the proposition that people generally value the esteem of others, particularly their peers. Among the ways one can earn the esteem of one’s peers is by being recognized for one’s originality, creativity, insight, knowledge, and technical skill. This is particularly so among writers, artists, and scholars, who, in addition to achieving satisfaction through the creative act itself, usually wish to see those acts recognized by others. This desire for esteem produces ... the “norm of attribution." According to this norm, words and ideas may be copied if and only if the copier attributes them to their originator or author ... In modern Western societies, the attribution norm is disseminated quite formally in schools, starting at an early age.[9]
Understanding this early indoctrination provides insight into the general acceptance of attribution, even among people with conflicting notions of the proper role of copyright. Despite this acceptance, the Copyright Act does not embody the public sentiment toward attribution. An article written as early as 1951, Copyright and the Right to Credit, addressed this very problem. In the article, author Ralph Shaw ‘argued that copyright law paid insufficient attention to the attribution interests of artists.’[10] Shaw also noted that the pecuniary interests of publishers are different from the reputation-based interests of authors. While an author might desire and benefit from free distribution of his work, a publisher would not, and copyright law was designed to protect the interests of publishers.[11]
However, the importance of attribution has not been altogether ignored by United States copyright law. The Copyright Act does not specifically provide for moral rights, but certain causes of action purportedly provide creators with moral rights protection. In 1988, when the United States acceded to the Berne Convention for the Protection of Literary and Artistic Works (‘Berne Convention’),[12] the US government expressed its belief that several laws afford moral rights protection. Moral rights were added to the Berne Convention in 1928 as Article 6bis.[13] Article 6bis (1) provides:
Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.[14]
When the United States acceded to the Berne Convention, it did not have any federal statutory provision providing for the moral rights articulated in Article 6bis. ‘Yet the US government concluded — and the other Berne signatories seemingly accepted — that the United States provided substantially equivalent protection via a ... “patchwork” of laws.’[15]
According to the House Report on Berne implementation, among the causes of action comprising this ‘patchwork’ of laws, was §43(a) of the Lanham Act.[16] For a time, §43(a) was utilised to provide some protection for the moral right of attribution. Courts applied §43(a) liberally, allowing claims for misattribution to prevail under the Lanham Act.[17] However, the protection afforded by §43(a) was limited by the Supreme Court’s 2003 decision in Dastar. In Dastar, the Supreme Court decided that §43(a) could no longer be used as a means of protecting authors from misattribution. While other causes of action included in the set of laws presumed to protect moral rights may still be available, the Court’s decision in Dastar demonstrates that the continuing force of those actions is subject to change at the hands of judicial discretion.
Aside from the patchwork of laws mentioned by the government in 1988, two pieces of federal legislation have specifically addressed attribution, the Visual Artists Rights Act (‘VARA’)[18] and the DMCA. VARA, which was enacted in 1990, grants certain moral rights to a narrow group of visual works. VARA provides protection for paintings, drawings, prints, sculptures, and still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist.[19] While VARA provides some direct protection for moral rights, ‘it excludes mass-market visual art, movies, books, music, and other major categories of creative works, and is subject to other important limitations that make it largely irrelevant to the vast majority of creative works.’[20] The DMCA, on the other hand, was subsequently enacted in 1998, in order to ‘prospectively retool copyright for the anticipated online economy’[21] and to assist in the ‘licensing of rights and indicating attribution, creation and ownership.’[22] Among other things, provisions of the DMCA were intended to create attribution-like protection. Despite these intentions, the efficacy of the DMCA has been limited by interpretive challenges.
The dichotomy between the interests of authors and publishers has grown in the digital era, making copyright’s design even more ill-fitted to promote the purposes of the Copyright Act. The Internet has provided authors with new ways to freely distribute works without the necessity of publishers. ‘The creators of much of the popular content on the World Wide Web do not seek payment in return for access to their work. Much of the essential content on the World Wide Web is “posted” so that it is freely accessible to anyone with an Internet connection.’[23] There are still traditional publishers and non-author copyright holders who undoubtedly feel threatened by the proliferation of open access of copyrighted works on the Internet. Efforts to impose and increase criminal sanctions on ‘copyright pirates’ have been employed,[24] but ultimately these efforts fail to address the realities of the reputation-based economy behind the open access movement. The Copyright Act does not address the non-pecuniary economy of the creative marketplace and this has impeded the ability of the law to keep pace with technological innovations.
For example, there have been several recent cases involving the unauthorised use of photographs posted to social media networks which evidence the limitations of applying copyright law to digital media and the confusion surrounding liability for use of shared content. One of the first cases to explore the relationship between copyright and social media was Agence France Presse v Morel.[25] In that case, photojournalist Daniel Morel posted photographs to TwitPic of the devastation in Haiti after the 2010 earthquake. Shortly thereafter, another Twitter user reposted Morel’s pictures to his Twitter account claiming ownership and sold the pictures to the French newswire Agence France Presse (AFP). AFP in turn sold the pictures to another news organisation, Getty, and the pictures eventually circulated in a variety of media worldwide with misattributed bylines. Interestingly, in 2010 AFP brought suit against Morel seeking a declaratory judgment that it had not infringed Morel’ copyrights. Morel counterclaimed against AFP, Getty, and other news organisations asserting that they had wilfully infringed, were secondarily liable for the infringement of others, and had violated the DMCA.
The court’s analysis turned on AFP’s assertion that based upon Twitter’s Terms of Service (TOS) Morel gave AFP a license to use his photographs for free when he posted them on TwitPic. Ultimately, the court held that ‘[c]onstruing the Twitter TOS to provide an unrestrained, third-party license to remove content from Twitter and commercially license that content would be a gross expansion of the terms of the Twitter TOS.’ The court noted that the ‘fatal flaw in AFP’s argument: [was that] it fail[ed] to recognise that even if some re-uses of content posted on Twitter may be permissible, this does not necessarily require a general license to use this content as AFP has.’[26]
In a similar case, Chang v Virgin Mobile USA,[27] the outcome was less favourable to the content sharer. In Chang, the photograph of a young girl named Alison Chang, taken during a church sponsored event, was posted to the photograph-sharing website Flickr by the photographer Justin Ho-Wee Wong. Wong posted the photograph pursuant to a Creative Commons license, which allowed the photograph to be used by anyone in anyway, including for commercial purposes, provided that Wong was credited. Weeks later, the photograph was picked up by Virgin Mobile and used in an advertising campaign in Australia. The photograph of Alison was paired with a mocking slogan and displayed on billboards. Upon learning of the advertising campaign, Alison’s family brought suit against Virgin Mobile for copyright infringement, invasion of privacy, and breach of contract. The case also named Creative Commons as a defendant, alleging that Creative Commons had negligently failed to sufficiently warn creators that its licenses only address copyright and not privacy and publicity rights.[28] The plaintiffs voluntarily dismissed Creative Commons from the lawsuit and the court eventually dismissed the case against Virgin Mobile for lack of personal jurisdiction, essentially leaving Alison without recourse for the use of her image.
These cases and similar ones which have followed, establish that content producers who share their work via social media, even pursuant to licensing agreements, are unaware of the potential for dissemination as well as the legal implications. Moreover, cases such as this evidence that US copyright law is ill-equipped to address the creative marketplace of the Internet. The addition of a federal right to attribution would address the reputational economy inherent in creative markets, bridging the gap between the Copyright Act and the motivations of modern creators.
Ultimately, the history of US copyright law reveals two important facts: (1) society largely believes that creators deserve attribution for their works; and (2) previous legal attempts to provide quasi-attribution rights have been unsuccessful. Whether the patchwork of laws alleged to provide moral rights has ever offered adequate protection for authors is doubtful, and the Court’s decision in Dastar further diminished whatever attribution protection authors had previously been afforded. Analysis of Dastar provides insight into judicial misconceptions of the purpose of the right to attribution and also demonstrates how a statutory attribution right could remove the practical difficulties posed by using trademark law to protect the right of attribution.
In Dastar,[29] the Supreme Court addressed the issue of whether §43(a) of the Lanham Act[30] prevents the unaccredited copying of a work. The facts underlying Dastar began in 1948, when General Dwight D Eisenhower wrote his book, Crusade in Europe. That same year Doubleday published the book, registered it with the Copyright Office, and granted exclusive television rights to an affiliate of Twentieth Century Fox Film Corporation (Fox). Fox arranged for production of the television series based on the book. In 1975, Doubleday renewed the copyright in General Eisenhower’s book. Fox, however, did not renew the copyright on the Crusade television series, which expired in 1977, leaving the series in the public domain.[31]
In 1988, Fox reacquired the television rights in the book, including the exclusive right to distribute the Crusade television series on video and to sub-license others to do so. Subsequently, Fox granted this right to two companies, SFM Entertainment and New Line Home Video, Inc. SFM obtained the negatives of the original television series, restored them, and repackaged the series on videotape, and New Line distributed them. In 1995, Dastar, a rival company, purchased eight beta com tapes of the original version of the Crusade television series, which is in the public domain, copied them, and edited the series. Dastar then released a video set entitled World War II Campaigns in Europe (Campaigns). Dastar’s video set and the related advertising did not reference the original book, television series, or the videotapes that Fox had authorised.[32]
In 1998, Fox, SFM, and New Line (collectively Fox) sued Dastar, alleging, among other things, that Dastar’s sale of Campaigns without proper credit to the Crusade television series constituted reverse passing off in violation of §43(a) of the Lanham Act. The United States District Court ruled in favour of Fox. Dastar appealed and the Court of Appeals for the Ninth Circuit affirmed the judgment for Fox on the Lanham Act claim.[33] On certiorari, the Supreme Court reversed and remanded. The issue for the Supreme Court was whether, in marketing and selling Campaigns without acknowledging its almost complete reliance on the Crusade television series, Dastar made a false designation of origin, likely to cause consumer confusion under §43(a) of the Lanham Act. The core of the inquiry turned on what §43(a)(1)(A) of the Lanham Act means by the ‘origin’ of the goods.[34] The Court held that the most natural understanding of origin of the goods is the producer of the tangible product sold in the marketplace. Thus, the Court held that as the producer of Campaigns, Dastar was the origin of the goods. The Court concluded that as used in the Lanham Act, the phrase origin of the goods is incapable of connoting the person or entity that originated the ideas or communications that goods embody or contain.
The Court explained that §43(a) prohibits actions like trademark infringement that deceive consumers and impair a producer’s goodwill. However, the Court noted that the brand loyal consumer, who believes that the company produced (or at least stands behind the production of) a product, ‘surely does not believe’ the producer was the first to devise the formula or to come up with the idea for the product and typically the consumer does not care either way.[35] The Court acknowledged that purchaser concern is different for a ‘communicative product,’ one that is valued not primarily for its physical qualities, but for the intellectual content that it conveys. The Court concluded that the purchaser of a novel is not interested in the identity of the producer of the physical book, but rather in the identity of the creator of the story the book conveys. Thus, the argument could be made that for communicative products the origin of the goods in §43(a) must include not only the producer of the physical product, but also the creator of the content that the physical product conveys.
The Court rejected the argument that §43(a) should provide special treatment for communicative products for several reasons. First, the Court argued that according special treatment to communicative products would cause the Lanham Act to conflict with the law of copyright. Under copyright law, the right to copy, and to copy without attribution, once a copyright has expired passes to the public. Assuming arguendo that Dastar’s representation of itself as the Producer of its videos amounted to a representation that it originated the creative content of the videos, the Court held that allowing a cause of action under §43(a) for that representation would create a ‘species of mutant copyright law’ that limits the public’s federal right to copy and use expired copyrights.[36]
This reasoning is flawed for several reasons. First, the copyright act specifically states that it does not annul or limit any rights or remedies under any other Federal statute.[37] The purpose of §43(a) of the Lanham Act is to prevent false designations of origin likely to result in consumer confusion. As the Court itself noted, consumer concerns over origin are different in regard to communicative products. Here, Dastar’s decision not to include attribution information on Campaigns could lead consumers to believe that Dastar was the creator of the content. Thus, the false designation of origin in this case is likely to result in the very consumer confusion §43(a) was intended to prevent, and the copyright act expressly states that it does not pre-empt any right under another federal statute. Moreover, the Supreme Court’s reasoning contradicts the government’s statement that actions brought under a patchwork of laws, such as §43(a), are not only permissible, but necessary supplements to the copyright law in providing moral rights. Despite this, the Supreme Court’s decision suggests that attribution rights are solely the province of copyright law and that to allow actions under other laws would intrude into the sphere of copyright. This reasoning is further undercut by the fact that copyright law does not provide attribution rights.
Although the copyright act does not provide authors with attribution rights, policies underlying copyright distinguish between the right to copy and the obligation to accurately attribute. For example, copying of protected material that would otherwise qualify as an educational fair use may be deemed unfair if the copier intentionally removed reference to the copied work’s author and passed it off as his own.[38] Likewise, the Berne Convention permits free copying for purposes of teaching and news reporting, but requires that the source be credited.[39] Therefore, allowing a §43(a) claim for misattribution would not conflict with copyright law, rather, it would further a well-recognised policy.
Additionally, it is unclear how preventing consumer confusion through accurate attribution will limit the public’s federal right to copy and use expired copyrights. As Jane Ginsburg has noted:
it is not apparent how the public interest in access to public domain works is furthered by permitting a purveyor to sell those works under another author’s name. For example, an anonymous seventeenth-century Elizabethan or Jacobean drama is certainly in the public domain and anyone may copy and sell it. But what is the public interest in allowing the seller to pass the work off as Shakespeare’s? Yet, if putting Shakespeare’s name on the cover is not a “false designation of origin” then there may be no violation of that section of the Lanham Act.[40]
In support of its position, the Court argued that Fox’s §43(a) claim would ‘undoubtedly’ have prevailed if Dastar had bought some of New Line’s Crusade videotapes and merely repackaged them as its own. However, the Court contended that Dastar’s alleged wrongdoing was very different because Dastar took a creative work in the public domain, copied it, made minor modifications and produced its own series of videotapes.[41] With this reasoning, the Court was ostensibly trying to afford greater protection for the public domain, but ultimately, this technical distinction does not further this goal. Allowing Fox’s §43(a) claim would not have limited the public’s right to copy beyond the limitations already imposed by societal norms.
Finally, the Court argued that reading the word ‘origin’ in §43(a) to require attribution of uncopyrighted works would pose practical problems. First, the Court held that, without a copyrighted work as a starting point, figuring out who is in the line of origin for attribution purposes would be a daunting task.[42] While the particular facts of Dastar may support this proposition, in general, attributing the creator of content would not be this difficult or attenuated. The difficulty in Dastar arose because those asserting the §43(a) claim were not the content creators. The Court also argued that allowing §43(a) claims for misattribution presents manufacturers of communicative products with a conundrum. On the one hand, the manufacturer would face liability for failing to credit the creator of a work on which their copies are based; and on the other hand they could face liability for crediting the creator if that implies that the creator sponsors or approves of the copy.[43] Both of the practical difficulties pointed to by the Court highlight the desirability of an affirmative right to attribution. The moral rights provided by other countries as well as those enumerated in Article 6bis are for creators alone, which resolves the difficulty of determining the line of attribution. Furthermore, manufacturers would not face the dilemma posed by the Court if there was a statutory attribution right that only attached when an author affirmatively placed attribution information on his work.
Prior to Dastar, §43(a) was among the patchwork of laws which provided authors with some control over attribution. The Court’s decision in Dastar limited authors ability to utilise §43(a) for this purpose. The Court misconstrued the relationship between attribution and the public domain, weakening moral rights protections.
In the more recent case of Murphy,[44] the Third Circuit Court of Appeals considered the right of attribution in the context of a DMCA claim. The issue in Murphy was whether the definition of copyright management information (CMI) in the DMCA should be restricted to the context of automated copyright protection or management systems. The facts underlying Murphy are as follows: In 2006, Peter Murphy was hired by the magazine New Jersey Monthly (NJM) to take a photograph of Craig Carton and Ray Rossi, who at the time were the hosts of a show on the New Jersey radio station WKXW, which is owned by Millennium Radio Group. The photo (the image) depicted Carton and Rossi standing, apparently nude, behind a WKXW sign. Murphy retained the copyright to the image.[45]
An unknown employee of WKXW scanned the image from NJM and posted the resulting electronic copy to the WKXW website and to the website myspacetv.com. The resulting image eliminated NJM’s gutter credit,[46] which identified Murphy as the author of the image. The station never received Murphy’s permission to make use of the image. When Murphy discovered the image on the WKXW website, he communicated via his attorney with WKXW demanding that the alleged infringement cease. In April 2008, Murphy sued Millennium Radio Group, Carton, and Rossi (the station defendants) for violations of §1202 of the DMCA, copyright infringement, and defamation. The station defendants then filed a motion for summary judgment on all claims, which the District Court granted. Murphy appealed the grant of summary judgment on all counts.
Murphy argued that by reproducing the image on two websites without the NJM credit identifying him as the author, the station defendants violated §1202 of the DMCA. Section 1202 grants a cause of action to copyright owners for the ‘circumvention of a technological measure that effectively controls access to a work.’[47] Murphy’s claim against the station defendants involved §1202(b), which provides in relevant part:
No person shall, without the authority of the copyright owner or the law—
(1) intentionally remove or alter any copyright management information, or
...
(3) distribute, import for distribution, or publicly perform works, copies of works, or phonorecords, knowing that copyright management information has been removed or altered without authority of the copyright owner or the law, knowing or, with respect to civil remedies under section 1203, having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title.[48]
Section 1202(c) then defines ‘copyright management information’ as certain types of ‘information conveyed in connection with copies ... of a work ... including in digital form ... the name of, and other identifying information about, the author of the work ...’[49] Murphy contended that the NJM gutter credit identifying him as the author of the image is CMI because it is the name of the author of the image and was conveyed in connection with copies of the image. By posting the image on the two websites without the credit, the station defendants removed or altered CMI and distributed a work knowing that its CMI had been removed or altered. The station defendants, on the other hand, argued that §1202 must be interpreted in conjunction with §1201. Taken together, the defendants insisted that the chapter protects various kinds of automated systems that protect and manage copyrights. Therefore, information like the name of the author of a work is not CMI unless it also functions as part of an automated copyright protection or management system.
The Court held that §1202 establishes a cause of action for the removal of (among other things) the name of the author of a work when it has been conveyed in connection with copies of the work, and that the statute does not impose an explicit requirement that such information be part of an automated copyright protection or management system. The Court also held that if there is a problem with this reading of the statute, it is one of policy, not of logic. The Court acknowledged that such an interpretation might provide an additional cause of action under the DMCA in many cases in which only an action for copyright infringement could have been brought previously. However, the Court refrained from commenting on the desirability of this, holding that it was not an absurd result and therefore did not compel a more restrictive reading of the scope of §1202.[50]
In the end, the Court’s reading of §1202 provided Murphy with a right to attribution and evidenced the fact that, despite arguments to the contrary, providing this right is not wholly impractical. Murphy identified himself as the author of the image using a simple gutter credit and the Court found that this action was adequate to put others on notice that Murphy desired that this information remain attached to his work. While this decision could provide authors with a new way to protect their attribution rights, perhaps filling the void Dastar left, future application of §1202 is uncertain. Despite the legislative record, which provides that the DMCA was intended, at least in part, to protect attribution rights, Murphy highlights the interpretive challenges presented by the DMCA. Since its enactment, there has not been a consensus over the reach of §1202 in protecting the right to attribution. The Court’s comment on the desirability of allowing §1202 to provide a right to attribution undermines the Court’s conclusion. Moreover, §1202 is primarily designed to protect copyright holders as opposed to authors.
Sections I, II, and III of this paper confirm that society recognises the importance of attribution as an incentive for creation and as a moral obligation, but the legal landscape has been unable to adequately provide a right to attribution. The decisions in Dastar and Murphy illustrate that, under the current framework, the right to attribution or lack thereof is unpredictable and subject to varied judicial interpretations. In today’s era of open access, attribution may be of even greater consequence in keeping content in the public domain accurate. In light of these considerations, it is time for Congress to re-evaluate enacting a statutory provision for attribution. It is conceded that several scholars have considered and rejected this proposal in the past, citing the difficulty of implementing regulation to cover the wide range of creative works in the marketplace. Critics, even those who support moral rights, have argued that any right to attribution will necessarily be vague and further complicate the already complex copyright regime.[51] These critics fail to acknowledge the complications inherent in relying on a patchwork of laws to enforce quasi-attribution rights. Moreover, this proposal is fortified by the decision in Murphy and by the examples of legal and technological measures already implemented in the market. With these examples as a starting point, this paper contends that enacting a federal attribution right will eliminate complications, while benefitting authors, the public, and the open access movement.
4.1 Proposed Statute
(a) Rights of Attribution. Subject to section 107 and independent of the rights provided in section 106, the author of a work who conveys attribution management information in connection with copies or phonorecords of a work or performances or displays of a work, including in digital form—
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work which he or she did not create.
(b) Scope and Exercise of Rights. Only the author of a work has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work are co-owners of the rights conferred by subsection (a) in that work.
(c) Duration of Rights. The rights conferred by subsection (a) shall endure for a term consisting of the life of the author.
(1) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author.
(2) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire.
(d) Definition. As used in this section, the term ‘attribution management information’ means any of the following information:
(1) The title and other information identifying the work.
(2) The name of, and other identifying information about, the author of a work.
(3) Terms and conditions for use of the work.
(4) Identifying numbers or symbols referring to such information or links to such information.
(5) Such other information as the Register of Copyrights may prescribe by regulation, except that the Register of Copyrights may not require the provision of any information concerning the user of a copyrighted work.
4.2 Statute Explained
The proposed statute combines aspects of both VARA and the DMCA to create a new right to attribution. The rights conferred by the proposed statute are not limited to creators of certain types of work. The rights will benefit creators of any copyrightable works who have affirmatively asserted their right to attribution. Unlike VARA and the moral rights recognised by some foreign jurisdictions, the proposed attribution right does not benefit the author of a work unless he or she has affirmatively asserted that right by conveying attribution management information in connection to the work. This assertion requirement serves two purposes, without diminishing the integrity of the attribution right: (1) it avoids use of, often complicated, waivers, and (2) it removes the burden on the public of determining the line of attribution. This requirement balances the interests of the author in protecting his or her work with the interests of the public in copying that work. Authors must take the time to properly assert their attribution right before they can enjoy the benefits of that right, and in turn, the attribution management information provides the public with notice that a particular work must be attributed to the author, while providing the information necessary to accurately attribute.
Attribution management information will necessarily be conveyed differently depending on the type of work. This has been a source of criticism in the past,[52] but Murphy established that this is also true for conveyance of copyright management information under DMCA §1202 and it has not proven fatal to that provision. As seen in Murphy, a gutter credit was considered an appropriate vehicle for conveyance of copyright management information for a photograph.[53] While a gutter credit may not be an appropriate conveyance vehicle for works in other media, there are other viable formats available for conveying attribution (and copyright) management information. For example, the non-profit organisation, Creative Commons, provides free licenses which allow creators to easily share their work with the world. All of the Creative Commons licenses require users to attribute the original creator(s) of a work, unless the creator waived that requirement or asked that her or his name be removed from an adaptation or collection.[54] Creative Commons licenses have been used by creators and publishers for works in a variety of media, such as: Al Jazeera (news video); Flickr (photographs); Google (digital services); and Nine Inch Nails (music).[55]
Of course, instances may arise in which an author’s chosen method for conveying attribution management information or the information itself is unreasonable. As Jane Ginsburg has explained:
The manner and medium of the work’s dissemination may well affect the reasonableness of nondisclosure of authors’ or performers’ names. For example, a requirement to identify all authors and performers may unreasonably encumber the radio broadcast of a song, but distributed recordings of the song might more conveniently include the listing. This may be particularly true of digital media, where a mouse-click can provide information even more extensive than available on a printed page.[56]
To combat this problem, when determining whether an author’s attribution right has been violated, courts can impose a rebuttable presumption that the method and information are reasonable.
Remedies for violation of the rights under the proposed statute should mirror the remedies provided for in §1203 of the DMCA.[57] Therefore, any person injured by a violation of the proposed statute may bring a civil action in an appropriate district court. The court may grant temporary and permanent injunctions to prevent or restrain a violation and may also grant actual or statutory damages. Actual damages are those the party suffered as a result of the violation, and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages. An injured party can elect instead to recover statutory damages for each violation of the statute in a sum of not less than US$ 2,500 or more than US$ 25,000.
Just as the Court noted in regard to its application of §1202 of the DMCA in Murphy,[58] the proposed statute would provide an additional cause of action in many cases in which only an action for copyright infringement could have been brought previously. While this may engender some opposition, violation of an author’s integral right to attribution warrants a punishment that will deter violators. Moreover, the DMCA was enacted with the same remedy scheme and attribution was only one piece of that Act, while the proposed statute’s focus is attribution, which will likely garner more support than the DMCA. Additionally, authors who provide their works for free on the Internet are more interested in attribution than illegal copying and are therefore less likely to bring suit for copyright infringement.
The concept behind the right to attribution, that credit should be given where credit is due, is ingrained in the vast majority of American society at a young age and is well-recognised by members of the Berne Convention and foreign jurisdictions. Despite this, US laws have failed to provide an attribution right. The government claimed that a variety of laws provided adequate protection, but that patchwork of laws is unpredictable. The Court’s decision in Dastar limited the use of §43(a) as a claim for misattribution, which weakened whatever protection had been provided by the patchwork of laws cited by the government. The Court’s application of §1202 of the DMCA in Murphy provides authors with an avenue for enforcing some form of attribution right. However, judicial interpretation of §1202 has varied and is subject to change. In light of all of this, a federal right to attribution is needed in order to protect authors. Enacting the proposed statute will not only benefit creators, but will also enrich the public domain by spreading accurately attributed content. The Copyright Act was designed with a pecuniary economy in mind, and this design has failed to accommodate the reputation-based economy which also shapes the creative marketplace. The proposed statute will develop this reputation-based economy, providing a more comprehensive copyright regime that conforms to the public’s expectations.
[1] Rebecca Tushnet, ‘Naming Rights: Attribution and Law’ (2007) 2007(3) Utah Law Review 789.
[2] Ibid (citing Stuart P Green, ‘Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights’ (2002) 54 Hastings Law Journal 167, 175).
[3] The Lanham Act, 15 USC §1051.
[4] [2003] USSC 4130; 539 US 23 (2003).
[5] Implementing new legislation takes time and effort, but that does not make it impracticable. Despite facing many of the same difficulties that the US anticipates it would encounter, Australia was able to introduce moral rights in December 2000 through its Copyright Amendment (Moral Rights) Act 2000 (Cth). See Copy Right Agency, Moral Rights (29 July 2013) <http://www.copyright.com.au/get-information/other-rights/moral-rights> .
[6] 650 F 3d 295 (2011).
[7] Digital Millenium Act, 17 USC §1201.
[8] US Copyright Act, 17 USC §§ 101-810.
[9] Stuart P Green, ‘Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights’ (2002) 54 Hastings Law Journal 174.
[10] Greg Lawstoka, ‘Digital Attribution: Copyright and the Right to Credit’ (2007) 87 Boston University Law Review 41 (citing Ralph R Shaw, ‘Copyright and the Right to Credit’ (1951) 113 Science 571.
[11] Ibid.
[12] The Berne Convention is an international agreement governing copyright. The Berne Convention requires its member nations to recognise the copyright of works of authors from other member nations in the same manner it recognizes the copyright of its own nationals. See Berne Convention, opened for signature 9 September 1886 (entered into force 5 December 1887), as last revised by the Paris Act relating to the Berne Convention for the Protection of Literary and Artistic Works, signed 24 July 1971, 1161 UNTS 30 (entered into force 15 December 1972), and further amended by the Amendments to Articles 22 and 23 of the Paris Act of 14 July 1971 of the Berne Convention for the Protection of Literary and Artistic Works, signed 28 September 1979, S Treaty Doc No 99-27 (1986); see also Justin Hughes, ‘American Moral Rights and Fixing the Dastar “Gap”’ (2007) 2007 Utah Law Review 659, 660.
[14] Berne Convention, Art 6bis (1).
[16] Ibid 664. The other causes of action included: 17 USC §106 right to prepare derivative works; 17 USC §115 prohibition on distortion of musical compositions; 17 USC §203 restriction on termination of licenses and transfers; state right of publicity laws; state unfair competition laws; state fraud and misrepresentation laws; state defamation laws; and state moral rights legislation. HR Rep No 100-609, 34 (1988).
[17] See, eg, Gilliam v ABC Inc, [1976] USCA2 548; 538 F 2d 14 (2d Cir 1976).
[18] Visual Rights Act of 1990, 17 USC §106A.
[19] 17 USC §106A.
[20] Tushnet, above n 1.
[21] Greg Lawstoka, ‘Digital Attribution: Copyright and the Right to Credit’ (2007) 87 Boston University Law Review 41, 70.
[22] S REP NO 105-190, 16 (1998).
[23] Ibid 46.
[24] Ibid, 45 (discussing the lobbying efforts of copyright holders to obtain stronger copyright laws and to enforce harsher criminal sanctions on infringers).
[25] 10 Civ 02730 (AJN) (SDNY Jan 14, 2013).
[26] Ibid, 20.
[27] Civil Action No 3:07-cv-01767 (D ND 2009).
[28] Creative Commons, Chang v Virgin Mobile (21 June 2013)
<http://wiki.creativecommons.org/Chang_v._Virgin_Mobile> .
[29] [2003] USSC 4130; 539 US 23 (2003).
[30] 15 USC §1125(a).
[31] Dastar[2003] USSC 4130; , 539 US 23, 25.
[32] Ibid.
[33] With respect to the Lanham Act claim, the Court of Appeals reasoned that ‘Dastar copied substantially the entire Crusade in Europe series created by Twentieth Century Fox, labeled the resulting product with a different name and marketed it without attribution to Fox [and] therefore committed a bodily appropriation of Fox’s series.’ Ibid 30.
[34] Ibid 35.
[35] Ibid 33.
[36] Ibid 34.
[37] 17 USC §301(d).
[38] Jane Ginsburg, ‘The Right to Claim Authorship in US Copyright and Trademarks Law’ (2004) 41 Houston Law Review 263, 8.
[39] Ibid.
[40] Ibid 7.
[41] Dastar, 539 US, 31.
[42] Ibid 36.
[43] Ibid.
[44] 650 F 3d 295 (2011).
[45] Ibid 299.
[46] A gutter credit is a credit placed in the inner margin, or ‘gutter’, of a magazine page, ordinarily printed in smaller type and running perpendicular to the relevant image on the page. Ibid.
[47] 17 USC §1201(a)(1)(A).
[48] Murphy, 650 F 3d, 300.
[49] Ibid.
[50] Ibid 302.
[53] Murphy, 650 F 3d, 300.
[54] Creative Commons, About <http://creativecommons.org/about> .
[55] Creative Commons, Who Uses CC? <http://creativecommons.org/who-uses-cc> .
[56] Ginsburg, above n 38, 37.
[57] 17 USC §1203.
[58] Murphy, 650 F 3d, 302.
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