The Curse of the Mutant Copyright

Justice Scalia's 2003 opinion for a unanimous Court in Dastar v. Twentieth Century Fox, 123 S.Ct. 2041, coined the phrase "mutant copyright" to thwart efforts to obtain what he regarded as a backdoor right of attribution of authorship. The effort was blocked by construing the term origin in Section 43(a)(1)(A) of the Lanham Act to refer to origin of the physical goods and not to their creator. There is of course a limited attribution right in Section 104A of title 17, added in VARA, and it may be that the presence of this provision has now created the inference that Section 104A is the only permissible source for attribution rights.

Certainly that is how lower courts after Dastar seem to have approached the matter, most recently, in Judge Jed Rakoff's December 29 opinion in Antidote International Films, Inc. v. Bloomsbury Publishng, PLC, 06 Civ. 6114 (S.D.N.Y.). The author of the fictional book in question, the 2000 "Sarah" was Laura Albert, but she (and perhaps her publisher) contrived a very different persona for the work, that of J.T. Leroy, a male (the novel is about a 12 year old male prostitute, named Cherry Vanilla. Sarah is the name of the boy's mother, with whom he competes for tricks at truck stops). This hoax was one of a series of finctional works that have been marketed as autobiographical in order to boost sales. Ms. Albert broke new ground in this respect. Here is an interview with Ms. Albert in USA Today's PopCandy column (It is very hard not to break my New Year's resolution with that one).

Plaintiff in the case is a NY film production company. Defendants included Ms. Albert and her publisher. Plaintiff' had optioned the film rights to the novel, but after the fraud was exposed, it backed out and sued, in count I, under Section 43(a)(1)(A). Judge Rakoff held that the claim was foreclosed by Dastar. He also dismissed count II, brought under Section 43(a)(1)(B). Some commentators have argued the possibility of such a cause of action, but Judge Rakoff swept such a fine parsing of Dastar aside. Those in fear of a mutant copyright need not fear anymore.

Professor Rebecca Tushnet has a good discussion of the case at her excellent 43(b) blog.