A generation ago, Judge Pierre Leval published Toward a Fair Use Standard and forever changed copyright law. Leval advocated for the primacy of an implicit, but previously underappreciated, factor in the fair use calculus—transformative use. Courts quickly heeded this call, rendering the impact of Leval’s article nothing short of seismic. But for all of its merits, Leval’s article failed to acknowledge or consider the salience of another largely underrecognized and heretofore unnamed factor: attributive use.
This Article attempts to address this oversight, particularly when viewed in light of the current law of crediting in the twenty years since Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court’s decision to permanently foreclose the most common method by which creatives had previously vindicated their crediting interests—the Lanham Act’s prohibition on false designations of origin. After assessing the recent body of empirical work highlighting both the quantitative and qualitative importance of attribution to authors and the value of crediting to consumers, investors, and the broader public, the Article scrutinizes the current state of attribution rights to argue that, post-Dastar, the remaining legal mechanisms for securing crediting, including private contracting, have proven insufficient.
To address this crediting gap in the law, the Article considers, but rejects, calls to overturn Dastar or enact an independent general attribution right under the Copyright Act. Instead, I propose a more modest solution that needs no congressional action. Like transformative use, attribution promotes progress in the arts by motivating and incentivizing authorial production. Moreover, as this Article’s careful exegesis of the relevant case law demonstrates, issues of crediting have long shaped the contours of the fair use defense. As such, I advocate for the formal adoption of attributive use as an express consideration in the fair use calculus. The Article therefore builds on Leval’s influential work and calls for the formulation of a new fair use standard that more closely calibrates the defense with the utilitarian goals of our copyright regime.
A. Pierre Leval’s Toward a Fair Use Standard and Copyright’s Crediting Gap
Thirty years ago, Pierre Leval penned what would become one the most influential pieces of legal scholarship of the past generation. As a federal judge who had then served for twelve years on the Southern District of New York, Leval crafted Toward a Fair Use Standard after he had watched two of his copyright decisions, including his finding that a biographer had made fair use of J.D. Salinger’s unpublished letters, eviscerated by the Second Circuit. In reflecting upon these repudiations, Leval critiqued his erstwhile approach to the fair use calculus as excessively ad hoc and sought, instead, to fashion a series of governing principles to guide application of the doctrine in future cases. In so doing, Leval scrutinized the metes and bounds of the copyright monopoly holistically and posited that infringement claims and fair use defenses both serve the overarching utilitarian goal of the copyright regime, which “stimulate[s] activity and progress in the arts for the intellectual enrichment of the public.” With the premise that fair use is not an exception to copyright protection but, rather, a part of the design of copyright law to encourage creativity, he then identified transformative, or productive, use—use that “employ[s] the [original] matter in a different manner or for a different purpose”—as a driving concern in the calculus.
Toward a Fair Use Standard quickly precipitated a sea change in the way courts approached application of the fair use doctrine. Only a few years after its publication in the Harvard Law Review, the Supreme Court drew heavily on Leval’s article in famously holding that the transformative nature of 2 Live Crew’s unauthorized parody of Roy Orbison’s Pretty Woman insulated the song from infringement liability under the fair use doctrine. In the process, the Supreme Court elevated the standing of Leval’s work, enshrining it as a seminal tome on copyright law—one that took a rightful place right beside the actual text of section 107 of the Copyright Act in guiding fair use determinations. Toward a Fair Use Standard continues to enjoy a prized place in the copyright firmament. In 2021, in its first fair use pronouncement since Campbell v. Acuff-Rose, the Supreme Court liberally sprinkled citations to Leval’s article through the course of its opinion determining that Google’s exploitation of Oracle’s copyrighted Sun Java application programming interface (“API”) constituted fair use. Transformation once again lies at the heart of the analysis, as the Court posited that Google’s actions helped “expand the use and usefulness of Android-based smartphones. . . . [by] creat[ing] a new platform that could be readily used by programmers” to develop new programs in the Android environment.
It should come as no surprise then that, in the words of one observer, “Leval’s commentary on the centrality of transformativeness in interpreting fair use decisively changed the way the copyright doctrine was interpreted. He leveraged the forum successfully to accomplish what he had been unable to accomplish thereto in judicial decision-making.” This view is not merely anecdotal or impressionistic. The rapid rise of transformation as a crucial, if not decisive, factor in fair use decisions due to Leval’s article is nothing short of stunning. A recent empirical study determined that almost ninety percent of cases now ultimately turn, at least in part, on determinations of transformative use.
Thus, with Toward a Fair Use Standard, Leval achieved what most authors of law review articles can only dream of. Of course, his deserved reputation as a thoughtful jurist no doubt assisted in propelling his proposal, and his article’s placement in the venerable Harvard Law Review did not hurt either. But, above all, his prescient thoughts on the limitations on copyright protection embodied in the fair use doctrine made eminent sense in any era when courts were just beginning to grapple with the digital implications of a Copyright Act written before the advent of the modern internet.
To be sure, Leval’s work is not without its critics—in industry, on the bench, and in the bar. These interventions have largely questioned the primacy that Leval’s article and interpreting courts have given to transformative use. Yet for all of its merit, Leval’s article wholly ignored one area of grave importance in both the utilitarian logic of copyright law and, implicitly, the extant jurisprudence on fair use: attribution. Crediting serves as a prime motivator for authorial production, goes to fundamental issues of equity in our copyright regime, and has enjoyed a tacit (but not entirely express) role within the fair use calculus. Nevertheless, it finds no place in Leval’s article, a fact that Leval’s critics have ignored as well. Indeed, even though Leval dedicated a portion of his article to pondering (and rejecting) the value of “other” fair use factors not expressly detailed in section 107’s text—including good faith, artistic integrity, and privacy—he never expressly discusses or even implicitly addresses the issue of crediting. In short, attribution appears to play no role in Leval’s analysis of fair use.
Of course, crediting was not Leval’s focus. Nevertheless, this Article attempts to address and assesses this oversight, particularly when read in light of the current law of crediting in the twenty years since the Supreme Court announced its decision in Dastar Corp. v. Twentieth Century Fox Film Corp., which permanently foreclosed the most common method by which creatives had previously vindicated their crediting interests—the Lanham Act’s prohibition on false designations of origin. Specifically, this Article proposes to supplement Leval’s work—which lead to the formal adoption of transformative use as a critical part of the first factor in the fair use analysis—by advancing a proposal for the explicit introduction of attributive use to the fair use balancing test.
B. Giving Credit: Toward an Attributive Fair Use Standard
Give credit where credit is due. It is a principle widely embraced in our social norms. But like many of the things we learned in kindergarten, adherence to the precept is far from perfect. Moreover, while the exhortation remains a universal aspiration, it enjoys little legal bite. Indeed, the lack of development in the law of crediting is nothing short of surprising. As Jane Ginsburg has argued, “Of all the many counter-intuitive features of US copyright law—and they abound—the lack of an attribution right may present the greatest gap between perceived justice and reality.”
If the Copyright Act and our broader intellectual property regime seeks to serve its constitutionally mandated purpose—to promote progress in the arts—by incentivizing the creation of works of authorship, it should ideally respond to what actually motivates creators. To be sure, the exclusive rights of reproduction, distribution, public performance, public display, and derivatization secured for authors under section 106 of the Copyright Act appeal to authorial incentives in at least two ways. First, they serve utilitarian interests by providing monetary rewards to creators by necessitating licenses for the exploitation of their work. Second, they promote natural law and the dignitary interests of authors by enabling them to decide whether (and under what terms) their works are made available to the public at all. But control over reproduction, distribution, public performance, public display, and derivatization are not the only rights that galvanize creators. Specifically, authors gain value—both monetary and otherwise—through other mechanisms. For example, building one’s brand and reputation for creative excellence—achieved only through attribution—is a powerful means toward earning long-term economic rewards and satisfying the dignitary interests that can also motivate authors. As a result, traditional copyright enforcement is not necessarily profit maximizing for creators, and there is often a disconnect between how creators feel about the unauthorized exploitation of their work and how distributors/publishers might feel about it. Meanwhile, authors who may value attribution over enforcement of their copyrights are not necessarily immune to the temptations of the marketplace or more noble than the rest of us. To be sure, some authors may create solely to fulfill their own needs or to edify, amuse, or impact others, and they may merely seek recognition rather than profit. But there is also a monetary component to proper attribution. In the long run, attribution promotes one’s name and its standing, a phenomenon that eggs on economic demand in a variety of forms—whether it is for further creative production, appearances, endorsements, or ancillary activities. Indeed, attribution is part and parcel of the economic equation of copyright and its incentive structure.
With all of this in mind, if our intellectual property regime serves to encourage progress in the arts by motivating and incentivizing authors, the absence of attribution rights would appear to leave the regime wanting. The Lanham Act, which for a time served as a powerful vehicle for protecting attribution rights, can no longer do so as a result of the Supreme Court’s decision in Dastar two decades ago. Meanwhile, for a variety of reasons we shall explore, alternative legal theories for protection have proven inadequate to provide for general crediting rights. Thus, current law provides little protection for crediting. And it is this crediting gap—what it means, how it came into existence, and how it might be solved—that is the focus of this Article.
Before proceeding further, two important caveats bear mentioning. As a preliminary manner, it is important to lay out what this Article means when it talks about giving credit. Put in the traditional parlance of moral rights, crediting issues can take two general forms. First, there is the positive right of attribution—the ability to have one’s name associated with one’s work. Second, there is the negative right of attribution—the ability to prevent having the work of another falsely attributed to you. The former right is about giving credit when credit is due and forms the subject matter of this Article. The latter phenomenon, while important and rife for further analysis, is about misattribution and therefore falls outside of the scope of this analysis.
In addition, as its title suggests, this Article seeks to directly build on Pierre Leval’s influential article. Indeed, it is no less ambitious than Leval’s piece and aims to highlight the fact that considerations of attributive use already permeate (with good reason) the jurisprudence applying and interpreting section 107 of the Copyright Act and seeks to alter the way that courts formally frame the fair use calculus going forward. At the same time, however, the author also understands that he is no Pierre Leval and, as detailed infra, is prone to delusions.
With these caveats in mind, the Article’s analysis begins by scrutinizing the value of crediting. Rather than resting on the mere intuition that attribution matters, Part I delves into both the quantitative and qualitative literature on crediting to determine just how and to what extent crediting fuels authorial motivations and serves broader societal interests. We start with an anecdote to illustrate how authorial reactions to infringement both with and without attribution can differ radically. In the process, we identify and critique the peculiar disconnect between our current legal regime—which fetishizes protection against infringement over failure of attribution—and the economic and dignitary interests of at least a sizeable percentage of creators. Next, we examine the burgeoning scholarship in law, economics, psychology, and organizational behavior to assess and interrogate the value of attribution to creators. As we see, a growing body of empirical work supports the intuition that crediting matters—a lot—and, in fact, authors are often willing to forgo substantial amounts of compensation in return for securing attribution. As such, crediting can and does play a primary role in motivating authorial production. At the same time, a fulsome attribution regime would not merely serve authorial interests. As I argue, it would also inure to the benefit of consumers, investors, and society at large by promoting the efficiency of resource allocation in intellectual property-driven fields (thereby benefiting investor welfare and broader economic interests in optimized markets operating with superior information), reducing consumer search costs, advancing the organizational integrity and coherence of literary and artistic endeavors, and even enhancing public support for the protection of intangible rights such as copyright by bringing the legal regime governing creative works in greater harmony with norms of equity and by humanizing creativity-driven products.
Having established the value of crediting to both authors and the public, this Article turn its attention to assessing the current state of attribution law. Part II therefore begins by exploring the rationale and implications of the Dastar holding and detailing the ways in which the decision effectively ended the ability of creators to bring attribution-related reverse passing off claims under the Lanham Act. Next, we identify the crediting gap left in Dastar’s wake by examining what alternative theories of liability remain to vindicate crediting interests post-Dastar and how said theories have fared in the intervening two decades. In the process, we scrutinize the extant jurisprudence on false advertising claims under the Lanham Act, attribution claims under the Visual Artists Rights Act (“VARA”), falsification and removal/alteration of Copyright Management Information (“CMI”) claims, state unfair competition law, and private contracting. As this Article’s analysis suggests, these theories are insufficient to protect the crediting rights of the vast majority of creators. False advertising claims can, at best, only provide relief to famous authors and only in circumstances of material reliance by consumers in purchasing decisions. VARA claims suffer from myriad subject matter constraints that makes the protections available to only a small corner of the creative universe (certain types of visual art works that are not works made for hire, only in originals or prints of two hundred or less, potentially only in digital form). Claims pertaining to falsification, removal, or alteration of CMI have a high double-scienter requirement that has made relief unlikely. Meanwhile, the statutory scheme regarding CMI primarily serves the goal of infringement prevention rather than the protection of any independent interests that authors may have in crediting. Finally, state unfair competition laws have suffered either from federal preemption under Dastar or from the fact that they are viewed as coterminus with Lanham Act protections.
In the end, therefore, we are left only with private contracting for relief. And while a few notable industries (such as Hollywood and academia) have implemented meaningful attribution regimes, private ordering suffers from the leverage and bargaining disparities inherent to contractual solutions. Indeed, as we demonstrate, the history of private crediting systems is riddled with instances where power dynamics trump actual origination. Drawing on several notable examples where crediting abuses fell on racial, gender-based, and socioeconomic fault lines, I argue that continued reliance on such systems could have particularly deleterious implications for social justice issues in intellectual property. In short, therefore, there exists a sizeable crediting gap—a vast disconnect between the high value of attribution to authors and the public and the low value given to it by way of legal protection. Moreover, without the legal vesting of more stout attribution entitlements, ongoing reliance on the pure operation of the marketplace for crediting determinations could continue to have vexing consequences.
Part III considers potential reform to the current state of affairs. Although I caution that social value should not always translate into legal mandate and that good norms do not always make good law, the particular inadequacies of the extant crediting regime and the social and economic (rather than private or familial) interests at play warrant examination of potential legal solutions. To that end, I evaluate but reject two of the most significant mechanisms for change: reversal of the Dastar holding by legislation amending the Lanham Act and passage of an affirmative cause of action under the Copyright Act to provide for crediting rights. As I argue, despite its shortcomings, Dastar revealed the poor fit that the Lanham Act—with its focus on consumer confusion—ultimately provided for attribution protection. Moreover, even if an amendment to the Lanham Act were limited to situations involving works still under copyright protection (so as to avoid the issue of erstwhile rightsholders with expired copyrights attempting to extend their monopoly over creative works through trademark law), it would still raise significant concerns about the potentially onerous scope of crediting requirements and the fine line between providing proper attribution and triggering false endorsement claims. Meanwhile, amendment of the Copyright Act to provide for an affirmative crediting claim has its own shortcomings. In particular, this Article examines the way in which the allocation of a formal crediting entitlement could stifle licensing efforts in the marketplace, a result exacerbated by the combined impact of the endowment and creative effects—behavioral phenomena that have caused economists to question traditional neoclassical assumptions in entitlement allocations in recent years. Finally, as a practical matter, I also observe the particular difficulties in pursuing a legislative change.
Instead, I propose a more modest solution, and one that I argue is already an implicit part of the existing jurisprudence: formal accounting of attributive use as a part of fair use calculus. In conducting a careful exegesis of the extant case law on fair use, I argue that courts have often woven consideration of attributive use into the first, fourth, and “fifth” factors—a move that the important Second and Ninth Circuits have blessed. Further, I argue that the implementation of an attributive use subfactor makes doctrinal sense given both the utilitarian and equitable functions of the fair use doctrine and that such a consideration is strongly supported by our existing copyright clearance norms. Thus, just as Pierre Leval identified transformative use as a critical but underappreciated consideration in the fair use calculus, I make a similar argument with respect to attributive use. In the process, I call for crediting to take its place alongside commercial and transformative considerations in courts’ assessment of the first fair use factor—the purpose and character of use. In this way, I advance an incremental, but important, step toward recognition of the value of crediting while also avoiding some of the broader concerns that a general right of attribution—whether achieved under the Lanham Act or the Copyright Act—might present.
I. WHY CREDITING MATTERS
A. One Author, Two Moments
I begin my assessment of the importance of attribution by reflecting upon the perspective of one author—this author—on what motivates creative enterprise. Such a focus is admittedly biased and may be completely unrepresentative. But it illustrates how the current state of affairs in copyright law—where infringement receives stiff punishment but failure to credit receives none—can be inadequate to protect the motivating interests of at least some creatives. Specifically, two recent incidents involving the use of my published work provoked strong, but diametrically opposing, reactions within me. And while I do not claim that my attitude toward these events reflects on how typical authors might respond, my contemplations are nonetheless instructive as to how some authors might experience issues related to infringement and crediting.
Not long ago, while doing some research on the dirty underbelly of the piratical dark web, I came across a site that resembled a veritable Library of Babel, providing free access to a remarkable collection of digital books to all comers. While publishers would not hesitate to characterize this “celestial jukebox” of books as a cesspool of wanton infringement, I felt compelled, as a good academic, to investigate further before drawing any definitive conclusions. So, in an act of curiosity and thorough vanity, I punched my own name into the site’s search box. To my surprise, a beautiful e-book edition of one of my tomes popped up, available freely to all who had interest in it. I can neither confirm nor deny that I immediately downloaded a copy, but some context might help explain why I may have made a decision to do so.
A number of years earlier, I had posed what I thought was an innocent request of the publisher of one of my forthcoming books: I sought a final PDF copy of the work for my records and personal use. The response was rapid and reproachful. “We don’t do that, John.” The implication was clear: they had to protect against piracy, even if it meant denying authors copies of their book in digital format. Instead, they offered me a compromise: the first three chapters. Since they made it clear this was not a negotiation, I took what they gave me. Fast forward a decade and it should be easy to understand why I may have been elated when this website offered me what my own publisher had denied me: a final, electronic form of my book without any encryption or digital rights management (“DRM”) associated with it.
My book’s appearance on the website also pleased me for an entirely different and more fundamental reason. As a delusional academic, I dream of my ideas getting attention, impacting the way people might approach or think about an issue and, ultimately, influencing policy. So I naturally fantasized about individuals (at least one or two!) potentially stumbling on this website, finding my book, and then reading it when they otherwise may have never known about my work or ponied up the cash necessary to buy it. The royalties I see from my writing are trivial and economically irrelevant. Instead, I want my books to reach as many people as possible (that is, more than my mother) and I want to maximize their exposure. Whether that is accomplished through sales or piracy, I care not. After all, as science fiction writer and librarian Eric Flint once put it, “The real enemy of authors— especially midlist writers—is not piracy . . . It’s obscurity.”
So far from making me angry, the discovery of my book pirated online for anyone to read resulted in nothing but sheer delight. Yes, this was infringement of my copyright, pure and simple. But I was all smiles.
Around the same time, I had another experience related to one of my publications—but, this time, what occurred was far less welcome. One day, I received an email from a local law school about an upcoming distinguished lecture. While I might usually give only fleeting attention to such a notification, this one caught my eye because of the topic, which just so happened to be the exact subject matter of my first book, which I wrote in 2008. So I naturally took an interest and thought about attending. But as I read further, my curiosity turned to disappointment. The talk was about a recently released book whose description was, almost word for word, based on the book I had written. And then I saw the name of the author, which was one I recognized.
I had met the author a decade ago when she was a graduate student attending a talk I had given about my own book. I distinctly remember her chatting with me after my lecture and expressing how much she had enjoyed and appreciated my book. It turns out those comments weren’t mere puffery. She had proven that by writing her own version. As I read the full description of her lecture and then found her recently released book, I was struck by how the summation literally encapsulated my own book in its entirety.
Imitation is the sincerest form of flattery, I told myself in a failed attempt to downplay the anger I felt. But more than flattery, I wanted acknowledgement. Of course, no one’s work is wholly original. But her book came uncomfortably close to mimicry of mine. It was not just drawing on or borrowing ideas to build and expand on my book; it was literally taking my entire work and rehashing it as purportedly original material. Specifically, and most egregiously of all, the use of my work was wholly without proper credit. And, to add insult to injury, as the email before me indicated, she was now giving a distinguished lecture at a local university that had never shown the least bit of interest in my work.
Even if I were inclined to pursue some kind of legal remedy against her, there was none readily forthcoming. Because of the nature of the use, an infringement claim would be difficult to make. Meanwhile, current law provides no general right of crediting or attribution. Admittedly, I did have a form of extralegal relief; if I wanted to pursue the matter, university policies against plagiarism and the failure to properly credit sources offered some remedies. Certainly, I could have notified the author’s publisher and her university-employer to trigger potential investigations. But, at the end of the day, such an effort would be purely punitive and would not undo the real damage I had already suffered; the book, after all, was already published. So, in the end, I concluded that, instead of going through the pain of a vindictive letter-writing campaign that would only waste my own time, I would work out my issues far more constructively: by writing a law review article.
These two incidents—close in time—provided a remarkable study in contrasts. In the first matter, I encountered the wholesale piracy of my work, and I found myself not merely indifferent but hopeful. After all, I had received credit for my work and the work’s unauthorized distribution helped disseminate my ideas more broadly. I would take whatever boost I could get. The website in question had undoubtedly infringed my work, but I was perfectly content to let that happen. In the second instance, while it was arguable whether the subsequent author had infringed my work, she had indisputably failed to give me proper credit for my work—upon which she had indisputably and heavily drawn—and had, in my view, violated basic norms of attribution. I was disturbed and troubled by what had happened.
While I found the second incident far more offensive than the first, the law saw things differently. I possessed a colorable claim for infringement if I were inclined to fight the piracy of my book. By contrast, I had little hope of a legal remedy for my fellow academic’s abysmal failure to provide me appropriate attribution. In short, our copyright regime provided no shortage of remedies for an injury that I cared little about—infringement. By sharp contrast, it provided no remedy for something that more directly motivates my production of content—crediting and recognition.
As a result of these two incidents, I began to wonder whether I was the kind of author the Copyright Act wanted to encourage in the first place. As a writer, I meet the definition of what the Framers referred to as “authors” in the Intellectual Property Clause of the Constitution, and my work comes under the subject matter of the Copyright Act. But I am also not the kind of author who makes a living (or even seeks to make a living) on the sale of my works. Consequently, my incentives might be quite different from someone whose income solely or largely comes from authoring works—the kind of author who might care substantially more about piracy.
That said, however, the vast majority of authors make little to no money from their work. Some, of course, may still pursue the craft for (in part) future potential riches. But, for many, remuneration is far lower on the list of their motivations than other factors, such as attribution and recognition. As Laura Heymann points out,
[F]or many creators, particularly individual creators, the profit motivation is not paramount. Rather, the creator is motivated most by the public knowledge that she is the creator—by attribution of the work to her. Indeed, as others have noted, such creators value wide dissemination of their work over compensation, and so benefit from the fair use doctrine and, even, the movement of their work to the public domain, both of which ensure that their work reaches as large an audience as possible.
As my reaction to the two incidents indicates, I belonged to this class of authors. And, by failing to reflect the importance of attribution and recognition as a motivating factor in the production of creative content, it appeared that the existing copyright regime did not know members of this class very well and did not appear fully responsive to their incentives and needs. For a utilitarian regime dedicated to progress in the arts, this curious result begs further investigation.
B. The Empirics of Attribution
There is no doubt that our moral sensibilities strongly support the practice of proper attribution, and common sense tells us that authors value crediting and recognition as well. As Heymann has posited, “[I]t seems safe to conclude that the two things that virtually all creators desire is to receive credit when appropriate and to eliminate the suggestion of association when it is not.” But before taking these assumptions to heart based on mere intuition, it is worth scrutinizing them more closely. While the value of attribution has traditionally received scant attention in the academic literature and little empirical testing, all of that has changed in recent years as an emerging body of data and experimental work has provided overwhelming support for the notion that attribution serves a vital role in motivating and incentivizing creatives.
One of the largest innovations and behavioral experiments to ever take place in the creative world occurred with the launch of the Creative Commons some twenty years ago. Founded by law professor Larry Lessig, computer scientist Hal Abelson, and literary advocate Eric Eldred, the Creative Commons sought to give creators the ability to opt out of the protection-heavy default rules of copyright, which automatically vest in authors the exclusive right to control reproduction, distribution, public display, public performance, and derivatization of their works for a period of their lifetime plus seventy years after their death. Such rights spring into existence for all original works of authorship fixed in a tangible medium, regardless of formalities. In subverting these default protections and the “permission culture” that they serve and support, Creative Commons allowed authors to make their works available to the public to promote educational access and spur further creativity by increasing the pool of works from which others can freely build without the need for costly licenses. By ceding their works to the Creative Commons, creators opt into a different regime, where all rights are not reserved. Thus, under various Creative Commons licenses, they can make work available for use without payment for noncommercial purposes—to create new derivative works or for any purpose whatsoever.
The notable success of the Creative Commons and the particular manner in which it has operated illustrates two important points. First, millions of creators have deeded hundreds of millions of creative works to the Creative Commons. As Eric E. Johnson has put it, this fact illustrates “the contemporary existence of an attitude held by at least a significant number of people that the full panoply of copyright entitlements is not important to them.” Second, while many, but not all, authors want to stop infringement of their works, virtually all authors want attribution and the operation of the Creative Commons provides empirical support for this view. As the data collected over the past twenty years show, authors putting their work on the Creative Commons almost always choose to condition any use on one requirement: proper attribution. For at least a certain set of creators, therefore, the right of attribution trumps the right of exploitation and the ability to receive license fees from the use of one’s works.
Even aside from the Creative Commons, the widespread sharing, rather than exclusive reservation, of intellectual property rights in many sectors illustrates the strong incentive social validation can play in promoting creative enterprise. Though long underappreciated in the intellectual property literature, this widespread “non-market form of exchange,” characterized by sharing, is particularly attractive for an enormous body of works that may not enjoy clear-cut commercial profitability but are also not entirely valueless. In these sharing regimes, such as open-source software licensing pools and microstock photography collections, pecuniary gain is largely forgone but, quite notably, attribution is retained and reputational satisfaction constitutes a key part of the value proposition for creators, as they derive “a feeling of satisfaction and a sense of social connectedness out of sharing.”
The thriving of the “sharing” economy and of the Creative Commons—where millions of creators are eager to opt out of the default protections of the Copyright Act, but only as long as they continue to receive recognition for their creative efforts—should come as no surprise. Indeed, recent experimental work has validated the intuition and experience that suggests that creators place significant weight on crediting and recognition. Notably, researchers Christopher Sprigman, Christopher Buccafusco, and Zachary Burns have conducted a series of empirical tests in mimic conditions of real-world bargaining meant to put a tangible monetary value on attribution rights. In the first experiment, they found that 180 casual photographers were, in the aggregate, willing to receive far less payment for publication of their work when it came with, rather than without, attribution. These findings were even more pronounced in their second experiment, which involved professional and advanced amateur photographers. In short, these tests produced robust results, leading Sprigman, Buccafusco, and Burns to conclude that, on average, creators actually value attribution and the receipt of recognition for their work more than getting paid and that they are “willing to sacrifice financial benefits to obtain [attribution].”
Beyond the valuable case study provided by Creative Commons and the experimental evidence that has quantitatively established the worth of crediting to authors, important qualitative ethnographic and observational work has also supported the stock that creators put in attribution. For example, in her comprehensive qualitative study of innovation, in which she conducted dozens of interviews with creatives and intellectual property professionals across a wide variety of industries, Jessica Silbey concluded that attribution serves as a primary motivator for creative enterprise. As she notes, “[T]he interviews are replete with expressions of how attribution and integrity are crucial to the work’s optimal promotion and dissemination, whether or not for profit, because they safeguard and manage the development of professional identity and audience.” Similarly, in her sweeping survey on the legal and normative standards of attribution across a wide range of industries—including Hollywood, journalism, political speechwriting, software, advertising, graphic design, science, and medicine—Catherine Fisk has also documented the significant value creators place on crediting. As she puts it, “Attribution is foundational to the modern economy” and, as such, “greater legal recognition of attribution rights is desirable.”
Finally, recent literature in the field of organizational behavior and psychology has emphasized the crucial role of crediting in nurturing innovation and promoting perceptions of fairness in creative environments. For example, Teresa Amabile, a leading theorist on creativity and innovation, has highlighted how proper credit allocation can motivate employees to work harder and enhance productivity. In short, a burgeoning body of work in the social sciences has strongly supported the intuition that crediting matters—a lot.
C. The Societal Value of Attribution
But in focusing largely on the impact of attribution on creatives—both in the way that crediting incentivizes innovation and how it serves the dignitary interests of authors—this emerging literature has actually understated the case of attribution rights. Quite critically, attribution does not merely serve authorial interests. Rather, it also benefits other players in the marketplace for creative works and advances broader societal interests.
First, crediting advances the efficacy of the marketplace, particularly in an information economy dominated by the production of intellectual property. Generally speaking, free and open exchange of relevant information facilitates the optimal functioning of markets by improving the efficiency of allocation decisions. Information about inputs, such as labor, guides the dedication of scarce resources. Crediting provides actionable data about labor involved in the production of intellectual property—data that are often onerous to divine elsewhere or without substantial additional cost. Indeed, “because it is difficult to measure worker knowledge directly in the way that the ability of the typists and machinists of the industrial economy could be tested simply by watching them perform a task,” credit is particularly valuable in an information economy. A reliable, accurate, and comprehensive crediting regime can therefore dramatically advance interests in the efficient allocation of resources in creative enterprises. Crediting, after all, provides vital information to financiers of those enterprises about the nature and quality of a particular author’s work.
Secondly, crediting advances the interests of those who consume creative works and other forms of intellectual property. Authorship represents a form of branding akin to trademark, and accurate authorship labeling helps promote many of the basic goals of the trademark regime, which serves consumers (and not just authors) by “reduc[ing] the customer’s costs of shopping and making purchasing decisions” and “help[ing] assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.” Heymann has highlighted the value that a meaningful crediting regime provides to even nonauthors. Instead of calling for an attribution right that recognizes an inherent moral right authors might have in proper attribution, she calls for what she dubs “authornymic” attribution, the recognition of crediting for the sake of “organizational integrity”—a “reader-centered” law that ensures that “reader responses [to creative works] will be informed and minimizes the likelihood of confusion a consumer of creative commodities might otherwise experience.” In this way, she argues, a law of attribution is vital to supporting “efficient literary consumers” who can have “some confidence that the works that we read—and later draw on for our own creative activity—are situated within a coherent literary structure.”
Thirdly, an attribution regime can also promote public respect for intellectual property law. It does so in at least two different ways. As Stephanie Plamondon Bair argues in her study of the role of fairness in copyright law, when we align copyright law more closely with public perceptions of equity, we heighten the regime’s legitimacy in the eyes of society. Given the strong popular support for the norm of attribution, a copyright system that protects crediting rights bolsters respect for the regime itself. Separately, the act of putting a real face (or, at least name) behind creative works humanizes them and can help buttress support for the intellectual property rights that protect them. As Catherine Fisk explains, such a task is particularly important “[i]n a world of corporate production, and in particular skepticism about corporate production.” After all, it is no secret why corporate interest groups bring relatable artists to the forefront when making pitches for greater protection and rights enforcement, especially in the war on piracy—even when those artists are not the real rightsholders. When the music industry sought to apply pressure to Google to provide more favorable use fees for the exploitation of music on YouTube, it had the likes of Taylor Swift and U2 sign off to an open letter that was used to drum up public support for the cause and to lobby Congress for reform. And when the Motion Picture Association (“MPA”) sought an alternative to an unpopular litigation campaign against piracy, it put together testimonial advertisements that highlighted the ways in which piracy hurt those people whom we only know as lines at the end of the credit roll. Thus, attribution promotes the very operation of the intellectual property regime by giving it a human face that legitimizes the sometimes impersonal and intangible rules it enforces. In an era where digital technology has made mass piracy on a global scale all too easy, this function is perhaps of greater value now than ever before.
All told, therefore, our common sense tells us that crediting is deeply important to authors, a position backed by the emerging social science literature on the subject. Meanwhile, a proper attribution regime also has critical benefits to the efficient functioning of the marketplace for creative works and thus has strong benefits for consumers and investors as well. Despite all of this, however, as we have alluded to, the law provides shockingly little protection for crediting rights. This state of affairs that has grown particularly dim in the past two decades in the wake of the Supreme Court’s decision in Dastar, a subject to which we now turn.
II. THE LAW’S SIZEABLE CREDITING GAP
A. Dastar and the Decline of Crediting Law
Although we have established the important value of attribution—to creators, investors, and the public as a whole—we are left with a strange conundrum: the law of crediting is surprisingly thin and underdeveloped. Indeed, it is counterintuitively so, as the wholesale absence of any broad law of attribution runs counter to the assumptions of many in the creative community. As Silbey reported for her survey of artists and authors, “Many interviewees were stunned to learn that copyright law does not require attribution or prohibit misattribution.”
That said, for a period of time in the recent past, rightsholders enjoyed one particular means of crediting protection: a direct vehicle for legal redress when their creative works were being used by others without proper attribution. Specifically, a line of case law had emerged that considered improper crediting of someone else’s work as one’s own to constitute a “false designation of origin . . . or false or misleading representation” actionable under section 43(a) of the Lanham Act. In these cases, courts found that, in the words of Thomas McCarthy, the Lanham Act “has progressed far beyond the old concept of fraudulent passing off, to encompass any form of competition or selling which contravenes society’s current concepts of ‘fairness.’ ” Such a capacious reading of the Lanham Act allowed for recognition of a cause of action for reverse passing off—when someone passes off the goods or services of another as their own—and, therefore, provided a viable claim for their failure to provide credit.
In 1981, this reading of the Lanham Act received the blessing of the Ninth Circuit for the first time, a move that propelled it to widespread acceptance. In Smith v. Montoro, the Ninth Circuit held that the failure to credit an actor for his role in the movie Convoy Buddies (and, in fact, the substitution of his name with that of another actor in both the film credits and advertising material), constituted reverse passing off under section 43(a). As a matter of public policy, the court opined, such conduct was “wrongful” in that “the originator of the misidentified product is involuntarily deprived of the advertising value of its name and of the goodwill that otherwise would stem from public knowledge of the true source of the satisfactory product.” The Montoro decision proved widely influential, and within a few short years, federal courts throughout the country were entertaining attribution-related claims under section 43(a) for reverse passing off. But all of that changed in 2003 when the Supreme Court announced its decision in Dastar.
It was in the shadow of Montoro and its progeny that the Dastar controversy began. To commemorate the fiftieth anniversary of the ending of World War II, Dastar Corporation had decided to put out a new video set titled World War II Campaigns in Europe. The collection made extensive, but unauthorized, use of a television series based on President Dwight Eisenhower’s book, Crusade in Europe. Twentieth Century Fox had owned the copyrights to this program until it had inadvertently forgotten to renew them and the show fell into the public domain. As a result, Fox could not sue Dastar for infringement of its Crusade in Europe television series to prevent publication and distribution of World War II Campaigns in Europe. So, like many other entities who have lost their erstwhile rights in one of our intellectual property regimes, Fox turned to a neighboring intellectual property regime upon which to rest its claims. It made a Lanham Act claim instead.
The procedural posture of the case was unusual and suggested something significant was afoot by the time it got to the Supreme Court. Both the district court and Ninth Circuit upheld the reverse passing off claim. Indeed, the Ninth Circuit thought so little of the issue’s weight overall significance that the decision was unpublished. The Supreme Court, of course, typically grants certiorari to only a tiny fraction of cases; so, it certainly raised eyebrows when the Supreme Court granted certiorari to a seemingly routine and mundane decision that the Ninth Circuit did not even bother to designate for publication. The action presaged the Court’s view that the unpublished decision from the Ninth Circuit missed something fundamental and significant, about which the Court appeared ready to opine.
In its decision, the Supreme Court unanimously reversed the Ninth Circuit and rejected Fox’s attempt to use a Lanham Act claim for false designation of origin as a means of preventing Dastar’s reproduction of an audiovisual work (to which Fox had previously owned the copyright) that had fallen into the public domain. In so holding, the Court warned against the risk of creating a “species of mutant” intellectual property protection that would impede the public’s right to make unfettered use of creative works that no longer enjoy copyright protection.
As the old saw goes, hard facts make bad law. Fox’s gambit to eschew the “limited times” requirement in copyright law by ginning up trademark claims against Dastar struck a nerve with the Court, and the case came before it at a particularly opportune time (as far as Dastar was concerned). As Justin Hughes points out, the close proximity of the Dastar decision to the holding in Eldred v. Ashcroft suggests that that the former may have intentionally served as a “2003 Term counterweight” to the latter, which rejected concerns about the public domain in declining to find a twenty-year extension of copyright terms unconstitutional. Indeed, concerns about aggrieved former rightsholders, like Fox, attempting to circumvent copyright’s careful calibrated balance between private protection and public access expressly animated the Dastar decision. Specifically, the Court sought to thwart future efforts by lapsed copyright holders to make disingenuous use of trademark law to assert monopolistic control over the exploitation of works that had fallen into the public domain, in contravention of the very intent of the copyright regime and its (constitutionally mandated) policy of allowing ownership over creative works to eventually expire so that the public may make free use of them.
Thus, under Dastar, the Supreme Court found that reference to “origins of goods” in the Lanham Act could not be read to mean the authorial origins of a work; instead, it referred only to the physical source of the embodiment of that work in tangible products. As the Court rationalized, the reference to “origin of goods” in section 43(a) was “incapable of connoting the person or entity that originated the ideas or communications that ‘goods’ embody or contain. Such an extension would not only stretch the text, but it would be out of accord with the history and purpose of the Lanham Act and inconsistent with precedent.” So, even if Dastar had failed to give proper credit to the intellectual source(s) of the materials contained in its video collection, this did not, and could not, constitute a violation under the Lanham Act. All that mattered for the purposes of the section 43(a) was that there was not false designation of the origin of the actual physical video collection. Since Dastar literally published and distributed the video collection, self-attribution was entirely proper as far as the Lanham Act was concerned. As such, Fox had no actionable claim for false designation of origin.
At the same time, however, the Court’s holding reached broader than necessary to achieve the laudable goal of protecting the public domain. By grounding its ruling in a reading of the Lanham Act that definitively excluded the intellectual wellspring of a product from the meaning of “origin,” the Court precluded attribution claims under section 43(a) for all creative works. Thus, in the past two decades, courts have generally rejected all such claims, whether they apply to public domain works (as in Dastar) or works still under copyright protection (unlike Dastar). In the process, therefore, Dastar eliminated relief for those seeking remediation of a harm quite distinct from unlawful reproduction, distribution, display, or performance of a creative work: the act of not giving credit to its original author. In one fell swoop, “the Court swept away close to twenty-five years of precedent that held that failure to give credit to an entertainment product such as a film or song, or providing misleading credit, was a violation of trademark law.”
In part, two other concerns can explain and warrant broader application of the holding to all creative works, not just ones in the public domain. First, the Court noted the difficult position that an attribution-related reverse passing off claim could put manufacturers of products containing creative works. “On the one hand,” notes the Court, “they would face Lanham Act liability for failing to credit the creator of a work on which their lawful copies are based; and on the other hand they could face Lanham Act liability for crediting the creator if that should be regarded as implying the creator’s ‘sponsorship or approval’ of the copy.” In other words, if Dastar had put out its video set and kept the original credits to Fox, Fox could have sued Dastar for violating the Lanham Act for direct passing off by suggesting that Fox sponsored or approved Dastar’s product. Meanwhile, because it had removed Fox’s name, Dastar now faced a claim for failure to attribute under a theory of reverse passing off. If the Court had affirmed the availability of an attribution-related passing off claims, the resulting quagmire could stifle the use of works—both those in the public domain (for which no licensing is required) and for those still under copyright protection (when lawful copyright clearance might leave a licensee subject to exposure for a Lanham Act violation).
Second, the Court raised its concern that an attribution requirement could leave distributors of copyright content with a duty to credit that might grow impossibly burdensome and impractical. The opinion put a fine point on the scope of crediting that a broader reading of section 43(a)’s “designation of origin” reference would compel by assessing the type of attribution that might be required to distribute the film Carmen Jones. As the Court posited, to avoid liability for reversing passing off under Montoroand its progeny, a distributor might have to give attribution “not just to MGM, but to Oscar Hammerstein II (who wrote the musical on which the film was based), to Georges Bizet (who wrote the opera on which the musical was based), and to Prosper Mérimée (who wrote the novel on which the opera was based).” Determining origin could amount to a complicated task. To illustrate this point, the Court turned no further than the case at hand, opining that
[w]hile Fox might have a claim to being in the line of origin, its involvement with the creation of the television series was limited at best. Time, Inc., was the principal, if not the exclusive, creator, albeit under arrangement with Fox. And of course it was neither Fox nor Time, Inc., that shot the film used in the Crusade television series. Rather, that footage came from the United States Army, Navy, and Coast Guard, the British Ministry of Information and War Office, the National Film Board of Canada, and unidentified ‘Newsreel Pool Cameramen.’ If anyone has a claim to being the original creator of the material used in both the Crusade television series and the Campaigns videotapes, it would be those groups, rather than Fox.
Interestingly, the Court’s language on this issue referred only to the context of uncopyrighted works, noting that “[w]ithout a copyrighted work as the basepoint, the word ‘origin’ has no discernable limits.” But unless the reference to uncopyrighted works meant works that had never enjoyed copyright protection in the first place, it is unclear why this problem would be greater with once-copyrighted works that have fallen out of the public domain as opposed to works still under copyright protection.
While these rationales offer substantive justification to eliminate attribution-related reverse passing off claims through the Lanham Act in all instances—not just claims relating to public domain works—the holding in Dastar was not without its significant problems. First, Dastar suffered a seemingly significant incongruity with the purpose of the federal trademark regime. If the goal of the Lanham Act is, indeed, consumer protection, the Supreme Court’s central holding in Dastar—that the Lanham Act’s reference to origin means the source of an actual physical product and not the wellspring of the idea or intellectual property embodied in a particular product—fails to reflect the reality of what factors animate consumer behavior, particularly with respect to intellectual property. Crediting is not just important to authors; it is vital the public’s decision-making process when it comes to consuming entertainment content. As Mary LaFrance has pointed out, contrary to the ultimate thrust of Dastar, which held that trademark law only protects against misidentification of the maker of the actual product rather than the ideas behind it,
in the case of literary works or entertainment works, the identity of the actual author, performer, or creative overseer may frequently be more crucial to the consumer’s purchasing decision, than the identity of the party that manufactured the physical embodiment [because] the identity of key creative participants is often viewed as a source indicator that is an important predictor of the quality or content of the goods.
Indeed, Dastar creates an unusual result for physical products containing intellectual property, as it provides protection to the designation of origin about which consumers arguably care the least. To put a finer point on it, consumers do not care if the movie they are watching was printed on Kodak film or released by Warner Brothers; they care about the fact that it was directed by Martin Scorsese or written by Charlie Kaufman. Readers do not care about whether Random House or Harper Collins was responsible for the paper and ink on which a book appears; they care about whether the book was written by J.K. Rowling or Thomas Pynchon. Music listeners do not care if the album was issued by SubPop or Merge Records; they care about whether it contains performances by Spoon or The Mountain Goats. The disconnect between the law’s protections and this reality could not be more stark or problematic.
Most importantly, for a large swath of creatives, Dastar all but eliminated hope for securing crediting rights through legal claims. Admittedly, the Supreme Court took pains to caution that its decision had not necessarily eliminated all means to vindicate attribution rights and that Dastar did not speak to alternative causes of action to enforce crediting under common, state, and federal law, including other theories (such as false advertising) available under the Lanham Act. But as one practitioner euphemistically noted in the wake of Dastar, the remaining options relied on “creative lawyering.” This turned out to be shorthand for shots in the dark that have little chance of working. For as we shall analyze in great detail infra, Dastar marked a significant inflection point in the state of attribution rights—significantly curtailing (if not altogether eliminating) the ability of most creators to receive credit under the law.
B. The State of Crediting Rights in the Two Decades Since Dastar
In his post-Dastar assessment of the state of attribution rights written in 2007, Justin Hughes argued that the crediting gap left by Dastar was not as wide as commonly believed. “[I]f we work through all the possibilities, the practical hole created by Dastar may be operatively modest,” he contended.
Dastar creates a gap in protection for those works and circumstances where there is a failure of appropriate attribution and no cause of action under VARA, under state moral rights laws, under 17 U.S.C. § 1202 for failure to include copyright management information, or under state unfair competition laws in states where the courts hold that Dastarshould not control, and where contract law does not establish a framework to protect attribution.
Hughes’s assessment has proven excessively sanguine, unfortunately. Although the legal theories to which he cited as alternative bases for protection may be numerous in quantity, they are qualitatively impoverished and provide scant (if any) relief in the vast majority of situations. Moreover, in the nearly two decades since Dastar, the significant size of the credit gap has become manifest as the jurisprudence of the intervening years has made clear how little bite these alternative legal theories provide for the vindication of crediting interests.
1. False Advertising Claims Under the Lanham Act
The very cause of action to which the Supreme Court cited as continuing to provide attribution protection post-Dastar—the Lanham Act’s prohibition on false advertising or misrepresentations of fact—has proven feeble in this regard. While Dastarexpressly foreclosed the possibility of attribution-related claims under section 43(a)(1)(A), it did not altogether eliminate the ability to vindicate crediting rights under the Lanham Act. Since the Dastar holding only opined as to the meaning of “origin” in the statute (which is invoked in section 43(a)(1)(A), referring to “confusion . . . as to the origin”), remaining provisions of the Lanham Act that did not employ that word could still have application to attribution-related issues. This was true for the Lanham Act’s cause of action for false advertising that, under section 43(a)(1)(B), created liability for anyone who “misrepresents the nature, characteristics [or] qualities . . . of . . . goods, services, or commercial activities.” In fact, Dastar expressly pointed to this provision as one ground for relief that may still be possible following the decision. As the Court noted,
If, moreover, the producer of a video that substantially copied the Crusade series were, in advertising or promotion, to give purchasers the impression that the video was quite different from that series, then one or more of the respondents might have a cause of action—not for reverse passing off under the “confusion . . . as to the origin” provision of § 43(a)(1)(A), but for misrepresentation under the “misrepresents the nature, characteristics [or] qualities” provision of § 43(a)(1)(B).
That said, such a path has proven less than promising and the Court’s supposition that such relief might be forthcoming has proven too optimistic, at best—or disingenuous, at worst. First, despite Dastar’s seemingly express exhortations to the contrary, subsequent courts have found that the holding in Dastar actually prevents both section 43(a)(1)(A) and section 43(a)(1)(B) claims on similar facts. Second, and more fundamentally, false advertising claims face additional hurdles not present in an attribution claim under section 43(a)(1)(A). These impediments would be difficult for most plaintiffs seeking vindication of an attribution right to clear. For example, many courts require competitor standing to bring a false advertising suit. Until the Supreme Court recently broke a circuit split, false advertising claims were, in many circuits, per se limited to commercial “actual” (direct?) competitors. Even now, standing remains a significant issue. As the Supreme Court noted in Lexmark International, Inc. v. Static Control Components, Inc., false advertising plaintiffs must show that they “fall within the zone of interests” protected by the statute and must have suffered a harm proximately caused as a result of the act of false advertising. But to fall within the zone of interests, the plaintiff must “allege an injury to a commercial interest in reputation or sales.” Since consumers typically do not lose sales or suffer an injury to reputation, the new standard makes it exceedingly unlikely that consumers can bring a false advertising claim. While plaintiffs need not be direct competitors anymore to bring a claim under section 43(a)(1)(B), they still generally need to be competitors of some sort.
Finally, false advertising is actionable under section 43(a)(1)(B) if and only if the statement is false on its face or the misrepresentation is material, that is, relied upon in consumers’ purchasing decision. This consumer reliance requirement makes eminent sense for false advertising claims, but it makes less sense when dealing with issues of attribution which should be, first and foremost, about vindicating the rights of authors to receive credit for their works rather than rights of the public from being deceived in material consumption decisions. Moreover, while the most famous and acclaimed of authors may survive such a materiality requirement, the vast majority will have a far more difficult time.
2. Attribution Claims Under the Visual Artists Rights Act
On the surface, VARA would appear to provide significant protection for the attribution rights of authors. Codified in section 106A of the Copyright Act, VARA offers creators an independent cause of action “to claim authorship of [their] work,” and “to prevent the use of his or her name as the author of any work of visual art which he or she did not create.” VARA claims are eligible for recovery of both statutory damages and attorneys’ fees and, to make matters even better for putative plaintiffs, unlike for infringement claims, an author does not even need to timely register the work in question as a condition for these remedies. Thus, a cursory examination of VARA might elicit hope for the vindication of crediting. But a closer look reveals just how profoundly limited the rights under VARA are.
First, as the very name of the legislation makes clear, VARA’s attribution rights only encompass works of visual art. As such, the Act fails to apply to large swaths of subject matter otherwise protectible under the Copyright Act, including writings, music, and other important works. But the limits do not end there, as the attribution right does not even attach to all forms of art that might be characterized as visual in nature. Rather, the statute covers only paintings, drawings, prints, sculptures, and photographs created for exhibition purposes only. It therefore excludes the most commercially important of visual art—film. It also does not apply to any “poster, map, globe, chart, technical drawing, diagram, model, applied art, . . . book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication” or any “merchandising item or advertising, promotional, descriptive, covering, or packaging material or container.” In addition, all works made for hire fall entirely outside of VARA’s protections. Finally, for the narrow category of visual art works to which VARA might apply, the attribution right only attaches to original versions of those works or limited editions thereof issued in sets of “200 copies or fewer that are signed and consecutively numbered by the author.” At the end of the day, therefore, VARA’s attribution right only applies to a limited set of visual art works that are not prepared as works made for hire. In short, VARA provides no crediting protection for the vast majority of authors.
3. Falsification and Removal/Alteration of Copyright Management Information Claims Under the Digital Millennium Copyright Act
Introduced into law with the passage of the Digital Millennium Copyright Act in 1998 (“DMCA”), the provisions of the Copyright Act that make it unlawful to falsify, alter, or remove copyright management information, which includes any authorship and copyright ownership data accompanying a work, would seemingly serve as a powerful vehicle to vindicate attribution rights. But while these provisions—codified in 17 U.S.C. § 1202 (“section 1202”)—constitute the sole protection granted to authorship information in all (rather than VARA’s narrow subset of) copyrighted works, their reach is deliberately constrained. Among other things, the structure of the two causes of action provided under section 1202—a claim for falsification of copyright management information (“CMI”) and a claim for removal or alteration of CMI—makes clear that the protections therein are subservient to the goal of fighting infringement and not any inherent value that may come from crediting. In other words, the guiding principle behind section 1202 is preventing further infringement, not vindicating an author’s very real, but potential separate, interest in crediting. As such, section 1202 fails to provide a meaningful right to crediting for authors.
Specifically, a claim for falsification of CMI requires that plaintiffs show that defendants “knowingly and with the intent to induce, enable, facilitate, or conceal infringement . . . provide[d] copyright management information that is false.” Similarly, a claim for removal/alteration of CMI requires that plaintiffs show that defendants “intentionally remove[d] or alter[ed] copyright management information . . . knowing, or . . . having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement.” Thus, both falsification and removal/alteration claims have a strict double scienter requirement that necessitates plaintiffs demonstrate that defendants acted with a particular mens rea—that is, knowingly and with intent to facilitate infringement.
This onerous scienter requirement is significant in at least three ways. First, it contrasts markedly from the complete absence of any scienter requirement in matters of direct copyright infringement. Specifically, infringement has always been a strict liability tort, where a defendant’s state of mind is wholly irrelevant to the issue of liability. By sharp distinction, to prevail on an attribution claim through section 1202, a plaintiff must meet not one but two (if not three) showings on the defendants’ state of mind.
Second, by conditioning attribution relief on an intent to facilitate infringement, section 1202 firmly grounds its protections in service of the fight against infringement rather than any broad vindication of crediting rights. This position is further buttressed by the fact that section 1202 only protects CMI that is “conveyed in connection with copies or phonorecords of a work or performances or displays of a work.” Furthermore, some courts have even read the legislative history and intent behind section 1202 to preclude application of falsification and removal/alternation claims to nondigital works. According to the logic of these courts, section 1202’s primary purpose—fighting the scourge of piracy in the online environment because of the unique ease of digital infringement—compels such a limitation on section 1202 claims. Such a position, however, leaves attribution rights outside of the digital environment unaddressed.
Third, and relatedly, the dual scienter requirement makes it extraordinarily difficult to prevail on a section 1202 claim. To state a cognizable removal/alteration claim, for example, a plaintiff must demonstrate that either a work “came into Defendant’s possession with CMI attached, and Defendant intentionally and improperly removed it” or a work “came into Defendant’s possession without CMI attached, but Defendant knew that CMI had been improperly removed, and Defendant used the [work] anyway.” A plaintiff may be unable to show how or in what form a work came into the defendant’s possession in the first place and, even if they can, it is rare to have sufficient evidence showing that the removal/alteration was specifically with the intent to facilitate infringement. For example, an erroneous belief about the copyright status of an image can preclude a finding of the knowledge required to state a claim under section 1202. Meanwhile, even intentionally cropping out a copyright notice from an image is insufficient to meet the intent to facilitate requirement.
Not surprisingly, therefore, CMI claims are frequently adjudicated as a matter of law based on the failure to adequately make even a threshold showing of knowledge and intent. Consider, for example, the difficulties that an author might face in bringing a section 1202 claim even against someone who both knowingly and intentionally crops an image to cut out the authorship information. Even assuming such authorship information qualifies as actionable CMI, there are myriad reasons (that may have nothing to do with the concealing of infringement) to crop out such authorship information. Among other things, the person making use of the image could claim to have cropped the images for aesthetic purposes, because of inherent space limitations for the usage, or without any idea that they were removing CMI. In all of these instances, authors may have legitimate, if not strong, interests in seeing uses of their work include attribution. Yet they would be unactionable under section 1202.
4. Attribution Rights Under State Unfair Competition Law and Other Common Law Theories.
Although there was initially some optimism about attribution rights remaining available under state law post-Dastar, such hopes have proven misplaced. First, in many states, such as California, courts have interpreted unfair competition protections as coextensive with the Lanham Act. Thus, if Dastar renders attribution claims no longer viable under the Lanham Act, such claims must necessarily also fail under state unfair competition law. Second, in the wake of Dastar, both Tom Bell and Michael Landau suggested that copyright preemption issues raised by the decision could preclude use of state or common law theories to protect attribution rights. These predictions turned out to be correct, as courts have regularly read Dastar in such a manner. In fact, even prior to Dastar, some courts viewed state unfair competition claims seeking credit as preempted.
The absence of clear legal protections for crediting has led some plaintiffs to rely (often futilely) on a veritable smorgasbord of common law theories in an attempt to cobble together some basis for relief. For example, when a Cornell graduate student (Antonia Demas) sued a member of her advisory committee (Professor David A. Levitsky of the School of Human Ecology) for improperly taking credit for research she had conducted into the nutritional habits of elementary schoolchildren, using that research to obtain a significant grant without her name, and then actively and publicly rebuffing her allegations of wrongdoing, she did not bring a claim under the Lanham Act for misattribution. Instead, she was left reciting the common law’s greatest hits in her complaint by claiming liability for misappropriation, fraud, breach of contract, breach of fiduciary duty, negligence, tortious interference with prospective economic advantage, defamation, and intentional infliction of emotional distress. While circumstances may make it possible to prevail on one of these theories, victims of crediting abuse face an uphill battle in meeting all of the required elements of such common law claims.
5. Private Contracting: The Promise and Perils
With false advertising, VARA, CMI falsification/removal/alteration and unfair competition claims providing little relief, creators are left with private contracting to do the work of crediting. There is no doubt that, in some industries, private contracting and even social norms have gone a long way toward ensuring proper crediting. But significant lacunae remain and, even where private contracting and norms do provide for crediting, it is not always reflective of authorial contributions. As such, reliance on private systems to govern crediting is insufficient to provide for appropriate attribution rights.
There are some fields where private contracting has given rise to deeply nuanced and vigorously patrolled crediting requirements. Two paradigmatic examples are Hollywood and academia. In the movie industry, collective bargaining has helped level the playing field between the studios and talent, and the operative guild agreements have insisted on getting even the most minute of credits done correctly. Though it is not without its flaws, the system has worked relatively well. And even if it might seem a tad onerous to any member of the public who has sat through the credits of a motion picture, those credits instill industry professionals with a sense of pride over their brief moment of acknowledgement on the silver screen. Just as importantly, by making the contributions of industry professional publicly legible in databases such as IMDb.com, the regime also ensures that those individuals can reap the reputational and economic benefits of their credits, or, to give a notable example, help avoid the ruin that might come from an unfair attribution. To wit, from 1968 through 2000, the Directors Guild of America allowed aggrieved directors who believed a studio or other producer had butchered their movie in unimaginable ways to petition to have their directorial credit replaced with the fictional “Alan Smithee” pseudonym, lest the final product sully the real director’s good name.
In the Academy of Motion Picture Arts and Sciences, strong attribution norms have given rise to anti-plagiarism codes, which have the bite of law and are frequently enforced against offenders in university disciplinary proceedings. Though not perfect, the carrot of the norm and the stick of disciplinary proceedings have served to ensure generally robust crediting practices.
But in other industries without collective bargaining or finely tuned attribution codes, where crediting is just as important and billions of dollars are on the line, there are no such formal crediting regimes. In such endeavors, crediting decisions are often left to general norms and individual negotiations. As a result, crediting often becomes more about power than actual contribution. As Catherine Fisk points out about most fields of entertainment, “Apart from the guild-controlled screen credit system, the credit system for other creative and technical people in entertainment seems to be more governed by norms, charity, and power than by law.” One notable example of this is producer credits, which are not governed by collective bargaining. As a result, producing credits are notoriously corrupt, and a veritable “prestige market” for production credits exists. Meanwhile, even in the guild crediting systems of the Screen Actors Guild-American Federation of Television and Radio Artists, the Writers Guild of America, and the Directors Guild of America, power relations frequently trump creative contributions in determining attribution rights. As Fisk notes,
Because the guild agreements limit the number of people who can be credited in some roles on any one film, power relations among various possible contenders for credit affect who is listed. Individual workers with significant bargaining power (actors, directors, writers, and producers) negotiate for specific treatment on each project, which may or may not reflect the same level of artistic contribution as compared to others who receive a similar type of credit on a different film or who receive the same credit (or no credit) on the same film.
The absence of legal protection for attribution rights outside of private contracting has profound consequences for distributive justice. When viewed through the prisms of race, gender, or socioeconomic disparities, crediting practices have a particularly troubling history. Simply put, those who are not white, male, or wealthy have far too often struggled to receive credit, even when they indisputably authored work. This is because crediting is as much (if not more) about power dynamics and contractual leverage as it is about origination. As K.J. Greene has poignantly noted,
Top directors, such as a Spike Lee or Steven Spielberg, will have no problem obtaining credit [by exercising their bargaining power in negotiations to contract for it], but anyone else dependent on a contract to secure credit will likely lose out. . . . [W]hile Dastar, on its face, seems completely neutral on the subordination issue, it actually promotes greater subordination; despite the Oprah’s and Denzel’s of the world, Blacks, women, and other minorities still occupy the bottom of the totem pole in entertainment hierarchies, making them the most vulnerable to misattribution abuses.
Greene’s concern is not speculative or hypothetical. Unfortunately, it is widely reflected in the history of scientific and creative enterprise.
Consider, for example, the systematic undervaluing and underrecognition of innovations by women. In the sciences, the phenomenon even has its own term—the Matilda effect—and it is no less prevalent in the world of arts and letters. To take a few illustrative examples, Margaret Keane was the actual painter of the “big-eyed waifs” long credited to her husband, Walter; Elizabeth Magie created the game of Monopoly, not Charles Darrow; and although attributed to Marcel Duchamp, The Fountain—the infamous urinal that rocked the art world at the 1913 Armory Show—was likely the work of Elsa von Freytag-Loringhoven. In short, crediting is often about who has the leverage (and, in the cases of some swindlers, the gall) to claim authorship, not who really created a work.
The dogged persistence of disparities in attribution has far-reaching consequences, exacerbating existing gender gaps in a number of professions, including the law. For example, Jordana Goodman’s empirical study of crediting practices for patent attorneys, which examined a set of over 200,000 patent applications and office action responses before the United States Patent and Trademark Office from 2016–2020, found an alarming divergence between “attribution and presence” for female patent attorneys, even when accounting for nongendered partner-associate power differentials, years of practice, and other relevant experience. In the field of computer software, for instance, Goodman estimates that female attorneys suffered a thirty-one percent shortfall in crediting. As she concludes, the “lack of equitable attribution perpetually disadvantages women, negatively impacts their career progression, and likely creates an insurmountable chasm between their capabilities and their prestige.” Ultimately, such practices “contribute to women’s systemic underrepresentation at top leadership levels throughout the United States,” a state of affairs presided over by current private ordering regimes such as the workflow structure of modern law firms.
The problematic dynamics in leaving crediting to private contracting are on full display in the music industry. As Fisk points out, “in music there is a not uncommon practice of people who do not contribute to the writing of a song being ‘cut in’ on songwriting credit.” The practice is not always nefarious, of course. Peter Jackson’s Beatlesdocumentary, The Beatles: Get Back, provides a notable example. As the film’s exhaustive studio footage capturing the crafting of the title song makes crystal clear, the work was the singular product of Paul McCartney’s musical ingenuity. But the song’s writing credits—“Lennon/McCartney”—tell a very different tale. In this case, a desire to keep an uneasy (though ultimately unsustainable) peace and to honor the duo’s (soon-to-be dissolved) songwriting partnership came at the expense of accuracy. Less innocuously, however, there are myriad instances where crediting practices reflect power more than creative contribution and cut along disturbing gender or racial fault lines. To take one example, Little Richard coauthored the classic Tutti Frutti with Creole songwriter Dorothy LaBostrie. However, as if it were not bad enough that handlers cajoled him into selling his publishing rights to his record company for a proverbial song (a meager fifty dollars), he also provided songwriting credit to a party that likely had nothing whatsoever to do with the authorship of the song—one that may have been the be pseudonym for the owner of Richard’s record label (who reaped the royalties, which continue to be earned on the song to this day). As Greene documents, Richard’s experience was no outlier; it was par for the course. And as he observes, “The fact that minority artists received less protection—or in many cases no protection—for their compositions undermines the incentive theory of intellectual property laws. Many Black artists received little no economic reward for their creations. Others certainly received less than what they should have.”
Even beyond issues of race, gender, and socioeconomic status, crediting often reflects relational and power dynamics that may have nothing whatsoever to do with real creative contributions, such as the tenured professor receiving sole authorial credit for a work that includes substantial contributions from graduate students, the law firm partner who has no problem enjoying attribution for the work of a junior associate, or the senator whose “words” are actually those of a speechwriter. Indeed, Spenser Clark’s deep dive into the crediting practices on Hold Up, one of the songs from Beyoncé’s acclaimed concept album Lemonade, illustrates this point in the world of pop music. As Clark explains, Hold Up’s title and some of its lyrics come from a line that Ezra Koenig, the lead singer of Vampire Weekend, had once tweeted (which, itself, was based on a lyrics from Maps, a song by indie rockers the Yeah Yeah Yeahs) and subsequent lyrics Koenig had developed in the studio with Beyoncé’s noted producer, Diplo, while they were working with a loop from an Andy Williams song. Beyoncé ultimately gave Koenig and the Yeah Yeah Yeahs songwriting credit on Hold Up and Diplo a producing credit, but, notably, Williams received no credit at all—either as a songwriter or producer. As Clark concludes,
Oftentimes [artist crediting] choices are not based in law, but rather more intangible considerations like the desire to maintain relationships with creators they wish to work with in the future. Andy Williams’ song, for example, was released in 1963, and therefore [Beyoncé] Knowles was probably less concerned with that relationship as she was with other, more relevant artists.
Notably, in the music industry (just as in some other creative fields), crediting is not only of reputational or ethical significance; it also determines payment of royalties related to the exploitation of sound recordings and musical compositions.
Finally, besides the power dynamics inherent in the private negotiation of credits, the fundamental constraints of contracting also limit how far it can go in ensuring proper attribution. Crediting claims that rest on negotiated obligations require privity for enforcement, and the realities of the marketplace dictate that not all uses of one’s work will be by individuals or entities with whom an author could or would contract. Indeed, this is precisely why we do not leave protection against unauthorized reproduction or other unlawful uses of copyrighted works to contracts and, instead, have infringement claims available that require only access and substantial similarity—no privity and, indeed, no knowledge. All told, therefore, while contracting, especially via collective bargaining, has enjoyed some success in certain industries, private law has not proven sufficiently robust to ensure that crediting rights are adequately protected in the many areas of the information economy where they matter vitally to authors, investors, and consumers.
A. Questioning Attribution Rights: Why Good Norms Do Not Necessarily Make Good Law
Our legal regime’s present crediting gap—the yawning chasm between the high value of attribution and the surprising absence of safeguards in our existing system to protect the practice—would seem to suggest a manifest need for reform. But before wholeheartedly embracing the adoption of some kind of credit-mandating legal regime, it is worth pausing to consider that best practices do not always translate into righteous laws. In other words, while giving credit might be the right thing to do, that does not necessarily mean we should legally require it, either broadly or in limited contexts. To put it bluntly, not all norms need the bite of law. For example, compliance with some norms—like thanking a gift giver—is more meaningful when it results from volition rather than compulsion. Moreover, to limit the scope of potential government intrusion into personal affairs, we do not want the law to microregulate every aspect of human existence. Thus, it is important to approach any effort to expand the law to regulate behavior that was previously not squarely within the aegis of our legal regime with a healthy amount of skepticism.
For example, despite moral entreaties against them, prevarications mostly lie outside of the scope of legal regulation—and with good reason. As Judge Alex Kozinski explained in one of the most mordant and entertaining paragraphs ever to appear in the Federal Reporter, such a societal choice honors the freedom of human expression, regardless of moral valence, and serves greater First Amendment interests. “Living means lying,” Kozinski famously posited (in words that are part of the public domain and thereby forgiving of extended quotation):
Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all. Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
. . . .
Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment. . . . If all untruthful speech is unprotected, as the dissenters claim, we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.
We not only insulate certain forms of morally suspect speech from legal liability, but also certain acts. So while we believe cheating on a spouse is repugnant to one’s martial vows, in most states no civil liability attaches to unfaithfulness, and it is largely irrelevant in most divorce proceedings. Thus, while we may have a broad societal consensus that some actions constitute moral wrongs, we do not necessarily criminalize, or impose civil liability on, all of those wrongs.
That said, crediting directly ties to a matter of significant public, rather than solely private or familial, interest. As we have detailed, attribution rights not only strike at the core of the utilitarian function of the copyright regime—advancing progress in the arts by incentivizing the production of creative work—but also other social benefits tied to economic and cultural interests. Indeed, in the conclusion to her exhaustive survey of crediting regimes in a wide variety of industries involved in scientific and cultural production, Fisk concludes that, while private law and norms have provided some protection for attribution rights, the current state of affairs warrants, if not compels, some type of legal intervention. But Fisk also cautions that any reform should supplement, but not supplant, existing practices. Since private ordering and norms have functioned with some success, there appears to be wisdom in approaching attribution rights with a disinclination to implement any new regime that is overly onerous or excessively undermines flexibility. With that caveat in mind, we turn to assess several proposals for reform.
B. The Problem with Overturning Dastar and Amending the Lanham Act
The most immediate and obvious reform measure for addressing the crediting gap created by Dastar and its progeny would involve overturning Dastar’s core holding. For example, as Justin Hughes has suggested, such an action could occur through legislation that amends the Lanham Act to define origin as including the intellectual source of creative works that have not yet fallen into the public domain. In other words, congressional action could restore the availability of attribution-related claims for reverse passing off for works still under copyright protection. But such legislation would also respect the Supreme Court’s rightful concern about limiting erstwhile rightsholders with expired copyrights from attempting to perpetuate their monopolistic stranglehold on the exploitation of creative works by turning the Lanham Act into a “species of mutant copyright law that limits the public’s ‘federal right to “copy and to use” ’ expired copyrights” However, even if the legislation is carefully crafted to apply the holding of Dastar only to works with expired copyrights, such a proposal might create more problems than it solves. Among other things, the Lanham Act is a poor fit for the vindication of attributive interests in creative works, and, even prior to Dastar, those inadequacies and fissures showed.
The ability of litigants to vindicate attribution rights through the vehicle of the Lanham Act has always been less than ideal—the Ninth Circuit’s Montoro decision and its progeny notwithstanding. Indeed, Bobbi Kwall argued this very point in 2002—just before the Dastar ruling—when she highlighted at least three ways in which the extant jurisprudence of the time stunted attribution claims, even under the Lanham Act. First, competing interpretations of section 43(a) by the federal courts in different jurisdictions had created a patchwork of inconsistent requirements that hampered the viability of reverse passing off claims for misattribution. Second, courts had sometimes even found such claims preempted under section 301 of the Copyright Act. Finally, and potentially most problematically, section 43(a)’s ultimate focus on consumer confusion and the prevention of deception led courts to “become preoccupied with different manifestations of ‘falsity’ at the expense of [protecting] an author’s personality and reputational interests.” Thus, dignitary injuries to an artist from a lack of attribution, or even speculative injuries as to the future harm that a lack of recognition may bring, are not cognizable under a section 43(a) claim. So, for example, in 1999, the Fifth Circuit affirmed summary judgment for a record label on a section 43(a) claim for reversing passing off based on the record label’s alleged failure to credit the authors of a digital sample of the authors’ work. Even though it acknowledged the lack of attribution, the Fifth Circuit still denied the claim on the basis that the plaintiffs could not demonstrate a genuine issue of likelihood of confusion. Read strictly, section 43(a)’s requirement of a showing of likelihood of consumer confusion would threaten most attribution claims, especially those that stem from smaller uncredited uses of a work and even larger uses of works by authors that are not sufficiently well-known so as to meet the threshold of consumer confusion necessary to sustain a claim under section 43(a). In other words, the Lanham Act’s conditionality of liability on consumer confusion inherently and significantly narrows the breadth of any protection for attribution it might otherwise provide. Overruling Dastar would do nothing to address this issue.
Meanwhile, although restoration of attribution-related reverse passing off claims for works still under copyright protection might address the Supreme Court’s concern about the potential private recapture of public domain works, it would not address another problem that undergirded the rationale of Dastar: the catch-22 of crediting. As the Dastar Court pointed out, attribution rights can mire users of copyrighted works in a damned if you do, damned if you don’t scenario. On one hand, if they do not provide credit, they might face claims for failure to attribute. On the other hand, if they do attribute, they might face accusations of a type of passing off—effectively engaging in a form unwanted attribution that the attribute regards as connoting sponsorship, endorsement, or affiliation with their product. This, in turn, can produce liability under the Lanham Act.
Meanwhile, though the anticompetitive implications of reverse passing off claims related to attribution are most pressing when a work is otherwise in the public domain, the ability of such a cause of action to stifle legitimate uses of works under copyright protection also bears consideration. Specifically, the Supreme Court’s anxieties about a mutant form of copyright law apply more broadly than the re-copyrighting of works that have fallen into the public domain; they apply with equal force to how a crediting regime could entangle and ensnare all sorts of unwitting users of copyrighted works, including properly licensed ones, for failure to make proper crediting. Attribution requirements can be onerous, particularly if we return to the pre-Dastar state of affairs under the Lanham Act, where it was unclear just how much crediting might be required to avert potential reverse passing off claims. Indeed, in the unanimous Dastar opinion, Justice Scalia cited the “serious practical problems” that would result from an attribution requirement without carefully circumscribed limits. After detailing the exhaustive list of potential credits that Dastar would have had to give if the Court had found that the Lanham Act’s reference to “origin” required attributions to all of the originators of “the ideas or communications that ‘goods’ embody or contain,” Scalia quipped that it made no sense to interpret the Lanham Act as requiring a search “for the source of the Nile and all its tributaries.”
A restoration of the pre-Dastar state of the law for works still in copyright could adversely impact the rights of legitimate users of copyrighted works and enable a similar type of result as Fox sought to achieve in pursuing its claims in Dastar. An example illustrates this point. If a producer-rightsholder grants a distributor rights to its work and then the distributor properly sublicenses those rights to an exhibitor, there is no issue of copyright infringement and, under our current regime, the exhibitor would feel secure in exploiting the work. But if attribution-related reverse passing off claims are restored under the Lanham Act, all manner of mischief could result in undermining the exhibitor’s properly granted exploitation rights if a purported “source” does not receive the attribution they believe they deserve in conjunction with the exploitation. The broad scope of who or what might constitute a “source”—as illustrated by Dastar’s infamous passage about the “Nile and all its tributaries”—makes this clear.
Thus, it may be with good reason that the period of time during which courts recognized an attribution-related claim for “reverse passing off” was relatively short. Although there were occasional outlier decisions in the distant past, “[w]idespread acceptance of [such] a cause of action began around 1980”—meaning that creators enjoyed access to such a claim for less than a quarter century and questions about the practice abounded during that era. Several theorists, for example, argued that use of the Lanham Act in this (admittedly sympathetic) context stood on shaky, if not wholly unjustifiable, legal grounds. Although he acknowledged that the right of attribution was “a commercially valuable right,” Randolph Stuart Sergent asserted that such a claim failed to serve the Lanham Act’s purported goals and was inappropriate under section 43(a). In presciently anticipating Dastar, he bemoaned the power of Montoro-like claims to serve as “a tool for controlling the sale of the underlying product [in a manner that would] reduc[e] marketplace competition . . . to the immediate detriment of consumers.” Meanwhile, John Cross argued that, although “[a]llowing [a] plaintiff to recover for reverse passing off certainly ‘feels’ right,” it is worth noting that “vague feelings of impropriety . . . are not enough to justify a cause of action.” In his analysis, imposing liability under the Lanham Act for reverse passing off failed “to prevent or cure any meaningful consumer deception” and undermined the delicate balance between encouraging innovation and promoting competition by allowing original sources to monopolize works that are either ceded to or eventually fall into the public domain by operation of copyright and patent law. These concerns remain for any effort to overturn Dastar.
In short, even before Dastar, the Lanham Act simply did not provide consistent protection for authorial crediting. As such, simply reforming Dastar does not really get us a proper fix for vindicating attribution rights. Although there is much to criticize about Dastar—the void it has created in the law of crediting and its shaky factual premise—there are also compelling reasons to leave the primary holding of Dastar undisturbed and to eschew reliance on the Lanham Act as a means to vindicate attribution rights. Indeed, if Dastar achieved any good, perhaps it was in taking the issue of authorial attribution out of the scope of the Lanham Act, where it represented a square peg being forced into the proverbial round hole.
C. The Challenges with Creating an Independent Attribution Claim Under the Copyright Act
Other scholars have considered whether it might make sense to amend the Copyright Act to provide for a general attribution right. Jane Ginsburg, for one, has advanced such a proposal. While the idea certainly has a great deal of merit, it also suffers from some significant shortcomings. On the positive side, Ginsburg’s proposal seeks to resolve this surprising lacuna in American intellectual property jurisprudence by finally granting creators a general right of attribution. Meanwhile, Ginsburg advocates the duration of the attribution right to match the copyright term—thereby averting instances of attribution liability for the use of public domain works. For reasons that we have also advocated, she also recognizes the importance of taking attribution rights outside of the Lanham Act given that attribution should be recognized regardless of proof of economic harm or consumer confusion. She also attempts to address potential issues regarding the unwieldy and uncertain scope of attribution obligations pre-Dastar by limiting the affirmative right of attribution to just legal authors and performers.
But Ginsburg’s proposal has some significant difficulties. While legal authorship is often singular, performers can number into the thousands. Thus, the inclusion of performers in the attribution requirement could create the specter of liability for the unwitting. More broadly, crediting of authors is not always practicable. Although Ginsburg addresses this concern by suggesting that the statute would be subject to a standard that incorporates a “reasonableness criterion,” such ambiguity is arguably the last thing that copyright law needs. After all, copyright users already have the remarkable illegibility of the fair use analysis with which to contend. Adding an additional crediting requirement that has no restraint other than “reasonableness” adds just another unfortunate layer to the copyright thicket of licensing and clearance requirements that already stifle creative activity.
Indeed, the very example that Ginsburg uses to tout the salutary and nimble nature of an attribution requirement grounded in the ambiguous notion of “reasonableness” demonstrates the very dangers of such a regime. As she writes,
[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 that available on a printed page.
Admittedly, with its relative dearth of spacing limitations, digital media makes it arguably reasonable (from a spacing point of view) to credit any number of authors and performers. But such a requirement can quickly become onerous. Consider a professor teaching a Russian history course who wants to screen excerpts from Alexander Sokurov’s acclaimed experimental drama Russian Ark, a ninety-six-minute film shot in just a single take one night at the Hermitage with a cast of more than two thousand actors and three orchestras. Though such an action would likely constitute fair use, meaning the professor could engage in the use without the hassle of payment and permission and without fear of infringement liability, Ginsburg’s proposal would place the professor in jeopardy of a different kind of liability: failure to attribute.
Ginsburg’s proposal also lacks any fair use defense, a point emphasized when she explains that “the test of reasonableness in this context is not the same as for fair use. The question is not whether the use should be prevented or paid for, as it is when fair use is at issue, but whether the use, even if free, should acknowledge the user’s sources.” While such a move is welcome from an equity point of view—for all too long, copyright law has devalued the creative contributions of performers—it bodes less favorably for those making use of copyrighted works. It is hard enough to prevail on a fair use claim; but now users will have to contend with a whole other issue: liability exposure under an independent and separate cause of action depending on the reasonableness of their crediting practices.
In addition, entitling creators to an affirmative right of attribution could have a surprisingly adverse impact on the functioning of intellectual property licensing markets. For example, while they acknowledge the critical importance of crediting and recognition to authors (a position backed up by their own empirical experiments), Sprigman, Buccafusco, and Burns have suggested that the indisputable value that creators place in attribution should not automatically lead to legislative enactment of an affirmative attribution right. As they caution, the operation of a default right of attribution, even if waivable, could result in significant inefficiencies in the licensing market. Most obviously, transaction costs would increase. But less obviously, the combined impact of the endowment and creator effects—which can cause irrational overvaluation of the intellectual property rights held by authors in their creative output—can make licensing transactions increasingly unlikely and more burdensome.
Grounded in the public interest and the efficient functioning of licensing markets, this argument warrants further examination and should give pause to any hasty enactment of attribution legislation. To understand why, an examination of the emerging literature in behavioral economics is in order. Specifically, in recent years, psychologists and economists have observed a phenomenon dubbed the “endowment effect,” wherein the subjective valuation an individual will give a particular object increases significantly when the individual possesses that object, even for a limited time. As a consequence of this effect, individuals will “demand much more to give up an object than they are willing to spend to acquire it.” Although not without its critics, this result appears to subvert neoclassical economic theory, which assumes that an individual’s willingness to pay (“WTP”) for a good should equal the willingness to accept (“WTA”) compensation for the loss of the good. In a now-classic experiment, Kahneman, Knetsch, and Thaler found that randomly assigned buyers valued a particular mug at three dollars, on average. By sharp contrast, randomly assigned owners of the very same mug required substantially more money (seven dollars, on average) to part with it. In short, the owners’ loss in divesting themselves of the mug was valued at more than twice the buyers’ gain in acquiring the exact same mug. Thus, under the endowment effect, most people appear to require a much higher price to part with a product to which they hold a legal entitlement (that is, through possession or ownership) than they would pay to purchase the very same product.
As it turns out, the endowment effect can be especially pronounced and dangerous in matters dealing with intangible property such as copyright. The tendency toward overvaluing endowed goods is amplified when measurements of value are more subjective, and the lack of fungibility for creative works can exacerbate holdout problems and make completion of licensing deals more difficult. This leads to what James Surowiecki and others have billed as the “permission problem.” And the impact is not merely the stifling of creative rights of scholars, critics, satirists, and others. Since the endowment effect raises the price otherwise demanded for access to a copyrighted work, “members of society do not enjoy the increased access to art that the copyright law is designed to provide.”
It is at this point that Sprigman, Buccafusco, and Burns’s findings become particularly salient. They found that that endowment effect was particularly extreme when creators engage in transactions involving their own work. This so-called “creativity effect”—what Sprigman, Buccasufsco, and Burns refer to as the “the tendency of creators of goods to assign higher value to their works not only compared to would-be purchasers of the goods, but relative also to mere owners (that is, subjects who had not created but merely been given the works, as in previous studies)”—can badly “magnify the valuation anomalies associated with the endowment effect. The creativity effect drives creators’ WTA even further away from buyers’ WTP, and in doing so it makes deals over creative goods more difficult to reach.” The data from Sprigman, Buccafusco, and Burns’s work therefore suggests that vesting an affirmative attribution right in creators could serve as a significant impediment on the licensing market and further complicate and stifle the ability of would-be licensees to reach deals for the use of creative content—a cost that impacts consumers of copyrighted works as well as the vast number of authors who draw upon preexisting content to create transformative works. As a result, they conclude that an affirmative attribution right would ultimately not serve the public weal and could have a disruptive effect on commerce.
But, perhaps most damningly, the biggest drawback against an independent claim for attribution under the Copyright Act is not whether it would make for good law but, rather, whether it would be feasible to pass such legislation in the first place. To illustrate this point, it is worth considering a few salient points about the history of copyright law in our country. It took almost 100 years for the United States to accede to the terms of the Berne Convention of 1886, which, since 1928 and per Article 6bis, requires member states to recognize a right of attribution. When the United States finally acceded to Berne in 1988, the House Report on its implementation concluded that a patchwork of existing laws in the United States already provided sufficient protection for attribution to meet Berne’s minimum standards. The availability of Lanham Act relief for reverse passing off in situations of misattribution was key to this conclusion. Nevertheless, Congress passed a narrow right of attribution under VARA shortly thereafter in 1990 which, as we have discussed, does not cover the vast majority of creative works and provides only scant protection. Furthermore, since Dastar, there has been no meaningful effort to undo its holding in Congress, making the path toward a legislative fix unlikely, at best. As this timeline illustrates, the odds of congressional intervention to add a broad attribution right to the Copyright Act—particularly given how constrained the attribution claim embedded in VARA ultimately became when it was finally passed in 1990—do not seem particularly good.
D. A Modest Proposal: Locating Attributive Use in Section 107
With this analysis in mind, we turn our attention to a modest proposal that I believe would not require legislation and, in fact, already reflects the jurisprudence on fair use: the recognition by courts of attributive use as an express subfactor in the application of the fair use defense to allegations of copyright infringement. This proposal advances the cause of attribution rights in an incremental, but significant, manner; provides flexibility for courts to adapt the concept to contexts and emerging technologies; and bolsters norms of crediting in a way that can lay the framework for future (and bolder) changes in the law.
Moreover, the proposal builds on the important work done by Pierre Leval with his article Toward a Fair Use Standard some three decades ago. Just as Leval argued that transformative use was already, and had good reason to be, playing an important role in fair use determinations, I argue the same with attributive use. In that spirit, as the title of this Article suggests, I advocate a move toward a new fair use standard. As our exegesis of the extant jurisprudence on fair use reveals, attributive use already has an implicit place in the fair use calculus. I argue that courts should lean into this reality and make attribution an explicit consideration in their factor one analysis on the purpose and character of the use. Just like transformative use, which advances the utilitarian aim of the copyright regime to promote progress (by enabling the creation of new work), attributive use serves a key role in the copyright regime by helping advance progress in the arts (by appealing to the incentivizing function of crediting). So, under this scheme, as part of their factor one analysis, future courts would consider: (1) whether a use is commercial; (2) whether a use is transformative; and (3) whether a use is attributive. In short, attributive use would take its place with commercial and transformative use as key factors in determining the purpose and character of a defendant’s unauthorized exploitation of someone’s copyrighted work.
Admittedly, leaving attribution rights to only function as an affirmative defense to infringement still leaves crediting as a tail, wagged by the infringement dog. But this solution avoids the numerous complications posed by either an affirmative attribution right in the Copyright Act or an undoing of the Dastar holding. Under such a proposal, works used with permission can continue to have exploitation governed by licensing terms that can call for proper attribution as appropriate and meaningful, thereby leaving existing crediting regimes in place and enabling further development of new ones. But for unlicensed works, an attributive use subfactor will provide significant encouragement of crediting while not requiring it in every instance and leaving some flexibility around the issue, so that courts can consider the context of a particular use to decide whether attribution is valuable, meaningful, or practicable under the circumstances. As a result, crediting will not become an absolute requirement, thereby addressing the significant concerns that would come from a broad attribution right. Meanwhile, for public domain works, there will be no concern about attribution because such works would not be subject to a fair use defense since their exploitation is, per se, noninfringing. As a result, the proposal averts rightful concern about erstwhile copyright holders using crediting requirements to achieve perpetual protection for works that fall into the public domain.
Moreover, to avoid making attribution overly onerous, the crediting at issue could be limited to legal authorship. As even Ginsburg admits, attribution requirements can be burdensome, potentially causing a problem that Ginsburg characterizes as the “most practical of all”: a regime that mandates “tiny print or endless film credits that no one will look at anyway.” To Ginsburg, criticisms about the potential burdens of crediting requirements are exaggerated. As she opines,
[D]ifficulties in determining whether a contributor at the fringes of a creative enterprise should be denominated an “author” or “co-author” should not obscure attribution claims where authorship is apparent. Moreover, where the creators are multiple, business practice may assist in identifying those entitled to authorship credit. That the resulting credits may not attract most readers’ or viewers’ attention does not warrant forgoing them altogether.
But there may also be a simpler refutation to these objections. Specifically, as Ginsburg herself admits, “Our caselaw has enough trouble, in the joint works context, identifying who is an author.” This is certainly true but it is also worth noting that, as a result of this difficulty, courts have shown themselves extraordinarily loathe to recognize joint authorship. Indeed, numerous doctrines, such as the strict reading of the mutual intent requirement, have emerged from courts to avert recognition of joint authorship. So, on a practical level, the problem of endless attribution seems quite solvable by considering crediting not of all creative contributors, but of the legal authors—a designation that courts have gone out of their way to make singular and, consequently, quite knowable (despite the many flaws in the way courts define legal authorship). In other words, given that courts already carefully circumscribe the notion of legal authorship in order to avoid the messiness of joint authorship and the accompanying headache it may cause in the fracturing of rights, attribution rights that are limited to recognition of legalauthorship are not quite as complex as objectors may suggest.
All told, this solution draws and expands upon, with some important alterations, a proposal once presented briefly by the late Greg Lastowka at the end of his article considering the (morbid) state of attribution rights post-Dastar. After bemoaning the extant law’s lack of protection for crediting, Lastowka proposed a corrective step: congressional amendment of section 107 to incorporate attribution as an explicit fifth factor in the fair use analysis. I tweak Lastowka’s proposal for two reasons. First, the addition of an express fifth factor would require legislative amendment, making change less likely (as I have documented with the difficulty in passing any affirmative attribution right in the Copyright Act). Indeed, as the influence of Leval’s 1990 article has suggested, change through the common law is both swifter and more likely. Leval, of course, achieved a dramatic change in the way courts have approached the fair use analysis in the past three decades by emphasizing the importance of a factor that had received scant explicit consideration before: transformation. Secondly, analytically speaking, I argue that attribution already resides in the existing four factors without the need to add a fifth. Most significantly, as I shall detail, courts have both explicitly and implicitly considered attribution in the fair use calculus in the past, often as part of assessing the purpose and character of the use (factor one). Building on the occasional, but unpredictable, judicial solicitude to attribution as a part of the fair use balancing test, I argue that, normatively, such a move makes a great deal of sense.
1. Attributive Use and the Existing Fair Use Calculus
As Lastowka argued, courts have occasionally drawn on attribution as a factor in the fair use calculus. But, as he cautioned,
[w]hat these cases demonstrate is not that attribution is regularly considered by courts as a factor in the fair use analysis. This is most certainly not the case. The cases merely illustrate that in certain cases, plaintiffs and defendants have been successful in persuading courts to incorporate evidence about attribution into a fair use analysis.
Lastowka may have understated matters, however. Indeed, a careful exegesis of the relevant jurisprudence—including noted decisions from the two circuits (the Second and the Ninth) that most prominently opine on copyright law, as well as consideration of the broad attributive practices in clearance norms—strongly suggests that attribution is already a guiding factor in the fair use calculus and, either explicitly or implicitly, is playing a (rightful) role in fair use determinations. As such, the proposal advanced here calls for overt recognition of attribution as a key subfactor in how courts weigh the purpose and character of a use.
The fair use doctrine finds its origins in Justice Joseph Story’s influential 1841 opinion in Folsom v. Marsh. Eventually codified in section 107 of the 1976 Copyright Act, fair use typically involves the weighing of a four-part balancing test to determine whether an unauthorized use of a copyrighted work is excused from infringement liability. These factors include:
(1) the purpose and character of the use, including whether such use is of a commercial nature . . . ; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
However, with its use of open-ended language, the text of section 107 suggests that the four listed factors are not exhaustive of the considerations a court may undertake. As a result, courts have always had the freedom to introduce other relevant factors to their fair use analysis. Indeed, some have accepted the invitation, including many that have made attribution and crediting practices a consideration.
2. The Role of Attribution in the First, Fourth, and “Fifth” Fair Use Factors
In Haberman v. Hustler Magazine, Inc., for example, a Massachusetts district court drew on “equitable considerations” as a fifth factor and found that the defendant’s attribution practices supported a fair use defense against infringement claims for unauthorized reproduction of two fine art photographs in a magazine. Specifically, the defendant’s fair use claim was substantially aided by the fact that it made “no effort . . . to palm [the photos] off as anything other than [the photographer’s] creations.” Thus, in some cases, attribution can and has become a part of the fair use calculus through an unofficial “fifth factor.”
That said, courts do not necessarily have to resort to the introduction of a fifth factor to make room for crediting. In fact, numerous decisions have integrated attributive use into their analysis of the existing four factors. This body of case law suggests that attribution already has a place (and voice) in the existing four fair use factors—particularly the first (“purchase and character of the use”) and fourth (“market harm”).
Melville and David Nimmer, for example, have argued that attribution can and should be a proper consideration in the first factor, as it speaks to nature and character of the use being made by a defendant. Numerous courts have subscribed to this view, whose application is illustrated in Williamson v. Pearson Education, Inc. In the suit, Pearson Education offered up a fair use defense to infringement claims stemming from its publication of a book featuring unauthorized quotation of a number of passages from a prior work on General Patton’s leadership principles. Drawing on Harper & Row, Publishers, Inc. v. Nation Enterprises’s instruction to consider the “propriety of the defendant’s conduct” as part of the nature and character of a defendant’s use of a copyrighted work, the Court found that the first fair use factor favored defendants because, among other things, they were “not attempting to pass [the] fact-gathering off as their own. Rather they are crediting [the plaintiff] as the source of the factual information that defendants use to construct some of the arguments in their book.” Similarly, in Rubin v. Brooks/Cole Publishing Co., a court identified the propriety of the defendant’s conduct as one of three subfactors under the “purpose and character of the use” consideration and found this factor favored the defendant since the defendant had “credited [the plaintiff] clearly and favorably in the text.” In another infringement case—one involving unauthorized use of a portion of a report about a hydropower facility—a federal court deemed that the defendants’ acknowledgement of the source of the original work helped the first fair use factor “weigh heavily in favor of a finding of fair use.”
It is not just the first factor that makes room for attribution. While “good faith” is the most common doctrinal vehicle through which crediting finds a voice in the first factor, economic factors form the doctrinal vehicle through which crediting finds a voice in the fourth factor. Meanwhile, the market harm factor also leaves room for consideration of attribution. Specifically, as Rebecca Tushnet has argued in the context of fan fiction, giving attribution attenuates the possibility of market harm. As she reasons, “Correct attribution helps prevent confusion and preserves the market for the official product and bears an indirect relation to the fourth fair use factor.” Tushnet’s view is not merely aspirational; it is also already reflected in some cases. In Richard Feiner & Co. v. H.R. Industries, Inc., for instance, a New York federal district court declined to grant a fair use defense to The Hollywood Reporter/HRI for its unauthorized use of a photograph of Laurel and Hardy in a feature spread on special effects and stunts. The failure to attribute the photograph to its author played an important role in the court’s calculus. “HRI’s use of the photograph without attribution to Feiner represents to the world that the photograph is in public domain,” the court concluded, “thus potentially impairing Feiner’s future revenue both in income and in the costs of protecting its rights.” Based on this logic, the court found significant market harm in HRI’s actions and found the fourth fair use factor militated against the defendant. Indeed, the Feiner case stands in contrast to Nuñez v. Caribbean International News Corp., in which a different member of the media—a Puerto Rican newspaper named El Vocero—also published an article making unauthorized use of a photograph—an image from the modeling portfolio of the former Miss Puerto Rico Universe 1997. In Nuñez, crediting played a role in the fair use analysis under both factors one and four. On the first factor, the court considered good faith, which favored El Vocero since it had “attributed the photographs to Núñez.” On the fourth factor, the court pointed to the fact that “the only discernible effect of the publication in El Vocero was to increase demand for the photograph”—a consequence doubtlessly buttressed by the credit that El Vocero provided to Nuñez, which enabled future licensees to know whom to approach for permissions to use the image.
3. Harper & Row’s Good Faith Admonition
With all of this said, it is important to acknowledge that the consideration of “good faith,” which courts have often used to raise attributive concerns, has come under fire in recent years. On the surface, this might suggest increasing judicial resistance to the factoring of crediting in the fair use calculus. But a closer examination of this trend says otherwise.
The clearest expression of the invitation to consider good faith in fair use determinations (and the basis upon which some courts have invoked attribution) came in Harper & Row, in which the Supreme Court dictated, in seemingly absolutist terms, that “fair use presupposes ‘good faith.’ ” Despite the blusterous verbiage, the exhortation remained inchoate, as the case gave little guidance as to just constituted “good faith.” In that particular instance, the Court was referring to how The Nation’s knowing exploitation of a purloined manuscript that remained unpublished demonstrated bad faith because the magazine had usurped the copyright holder’s valuable commercial rights of first publication. The Court then grafted this assessment of propriety to its consideration of the first, second and fourth fair use factors in finding that The Nation’s actions had no refuge in the defense. Notably, the matter of attribution (as a form of good faith or otherwise) had nothing whatsoever to do with that case.
In the intervening years, the Supreme Court has walked back on Harper & Row’s language about good faith. In both of its two most recent fair use pronouncements—Campbell in 1994 and Oracle in 2021—the Court has expressly downplayed the consideration. In Campbell, the Supreme Court acknowledged a split in persuasive authorities as to whether fair use must necessarily presuppose good faith. In Oracle’s dicta, the Court cited to Leval’s work to express its skepticism as to whether good faith should ever be a factor in fair use determinations.Ultimately, however, the Oracle Court eschewed taking a definitive position on the issue, leaving the weight (if any) given to good faith squarely to lower courts to determine. As the Court mused, “We have no occasion here to say whether good faith is as a general matter a helpful inquiry.” Nevertheless, it would not be stretch for lower courts to view the commentary in Campbell and Oracle as dampening enthusiasm for further use of a general good faith consideration in the fair use calculus.
The evolving concern about consideration of “good faith” as dictated in Harper & Row is compelling—at least in the manner in which the Harper & Row, Campbell, and Oracle Courts used the term, where they considered if an alleged infringer had engaged in related wrongdoing, such as exploiting a purloined manuscript or proceeding with making use of a work despite being denied permission. After all, if someone asks for, and is denied, permission but proceeds with a use anyway, it is worth considering whether that demonstrates good faith or bad faith, or does not necessarily suggest anything at all. As Elina Lae points out, courts have gone both ways on this issue—a fact that speaks to the unworkability of the factor. Or if a defendant genuinely believes that their actions constitute fair use and does not ask for permission, it is hard to understand why that factor should be held against them in the very determination of whether something is fair use. Indeed, while conceding the potential the utility of a good faith consideration in the fair use calculus, the Ninth Circuit long ago pointed out that “to consider [a defendant] blameworthy because he asked permission [and went ahead with the use after not receiving it] would penalize him for this modest show of consideration. Even though such gestures are predictably futile, we refuse to discourage them.”
More pointedly, reading the Copyright Act holistically, the introduction of considerations of propriety into the fair use calculus would appear unbalanced, particularly when one acknowledges that courts do not typically weigh such factors in determining putative rightsholders’ entitlement to copyright protection. As Leval has forcefully argued,
Copyright seeks to maximize the creation and publication of socially useful material. Copyright is not a privilege reserved for the well-behaved. Copyright protection is not withheld from authors who lie, cheat, or steal to obtain their information. If they have stolen information, they may be prosecuted or sued civilly, but this has no bearing on the applicability of the copyright. Copyright is not a reward for goodness but a protection for the profits of activity that is useful to the public education. The same considerations govern fair use.
In the end, therefore, when viewing fair use as an integral part of the utilitarian goal of our copyright regime, the ultimate focus on progress in the arts would appear to preclude consideration of the subjective mental state of a defendant or a defendant’s general intentions.
But, quite critically for our purposes, the discussion about good faith in Harper & Row, Campbell, and Oracle has never once touched on the issue of attribution. And although both Campbell and Oracle cited to Leval’s admonition to decouple fair use from good behavior, his entreaty also had nothing to with attributive practices. Indeed, as Leval reasons, fair use should be focused on progress in the arts. As we have detailed, that is precisely the reason why attribution should be considered, while other good faith factors, such as a defendant’s state of mind or general intentions, should not. Thus, despite the concern about good faith expressed in Campbell and Oracle and by Leval, these contemplations do not speak to the issue of crediting. And, if anything, the case law’s continued emphasis on promoting a vision of fair use dominated by the utilitarian goals of the copyright regime favors the consideration of attribution (though perhaps not general good faith) in the fair use calculus.
4. The Existing Role of Attribution in Second and Ninth Circuit Jurisprudence
All the while, attribution has and continues to play a role in the existing body of fair use jurisprudence in the influential Second and Ninth Circuits—from which the plurality, if not majority, of copyright caselaw stems. While these decisions that explicitly invoke attribution do not take the next step of formally mandating a role for crediting in the enumerated factors, when read together they suggest that such a role—much like the transformative use element identified by Leval in Toward a Fair Use Standard—would be consistent with the existing fair use rubric. Indeed, if district courts in these circuits hewed more closely to this extant jurisprudence, attribution would enjoy more overt recognition as a fair use factor.
The precedent of the Second Circuit is replete with cases where attribution has played a key, if not decisive, role in the fair use calculus. Weissmann v. Freeman is a particularly instructive case because it stemmed from an academic dispute where credits and notoriety, rather than significant profits, were at stake. In the suit, a professor at the Albert Einstein School of Medicine, Heidi S. Weissmann, took legal action against her colleague and erstwhile collaborator, Leonard Freeman, for copyright infringement, claiming that Freeman had unlawfully reproduced fifty copies of one of her articles for use in a special review course he was giving at the Mount Sinai School of Medicine. Ordinarily, such a relatively de minimis and educational use of a work would not give rise to infringement litigation. But one key fact made this case atypical: Freeman had deleted Weissmann’s name from the paper and, after adding three additional words to the title, put his own name on it. Although Weissmann might have pursued a claim for reverse passing off (albeit with some potential hurdles), she focused on a copyright infringement claim. Though the lower court had held Freeman’s use was a fair one, the Second Circuit reversed.
Despite claims that Freeman’s use was noncommercial and for academic purposes, his failure to credit Weissmann (and his substitution of his own name as the author) proved outcome determinative in the Second Circuit, and the court cited the crediting issue in its analysis on the first, second, and fourth fair use factors. On the first factor, the court determined that, in wresting credit from Weissmann, Freeman’s motivations were commercial in nature as he profited from the use, which enhanced his professional reputation. As the court noted, “Particularly in an academic setting, profit is ill-measured in dollars. Instead, what is valuable is recognition because it so often influences professional advancement and academic tenure.” On the second factor, the court noted the importance of weighing the incentives for continued creation of scholarly work and thereby linked attribution and progress in the arts. As it reasoned, crediting provided the likes of Weissmann “with an incentive to continue research—an endeavor that, if successful, would and has led to professional and monetary benefits [and that courts] need to uphold those incentives necessary to the creation of works such as [the article].” Finally, on the fourth factor, the court saw clear market harm because “[i]n scholarly circles such as, for example, the small community of nuclear medicine specialists involved in this suit, recognition of one’s scientific achievements is a vital part of one’s professional life.” In short, the issue of crediting permeated the entire fair use analysis in Weissmann. In the end, the court also emphasized that “[n]o case was cited—and [they] found none—that sustained [a fair use] defense under circumstances where copying involved total deletion of the original author’s name and substitution of the copier’s.” This observation alone suggests the implicit role of attribution (and the disfavor with which misattribution is viewed) in the extant fair use jurisprudence.
Rogers v. Koons, one of the most well-known copyright decisions from the Second Circuit, also emphasizes the role of attribution in fair use determinations. The Rogers controversy started when prominent modern artist Jeff Koons found inspiration in a cheap tourist postcard featuring Art Rogers’s Puppies, a photograph of a couple and their dogs posing in Rockwellian tranquility. Koons appropriated the depiction without Rogers’s permission and accentuated various elements to create a sculptural work, String of Puppies, that satirized suburban American aesthetic sensibilities. Rogers, unamused by Koons actions, sued for copyright infringement and Koons claimed fair use. The district court rejected Koons’s defense, holding that, among other things, his activities were not sufficiently transformative because they did not criticize or comment upon Rogers’s original photograph. On appeal, the Second Circuit affirmed, noting that, “though the satire need not be only of the copied work and may . . . also be a parody of modern society, the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work.” Because Koons purportedly did not “need” the original work to make his expressive point, there could be no fair use. The result of the case was a debacle for Koons. In addition to damages, he was ordered to pay the plaintiff’s attorneys’ fees.
To critics of the decision—which came down before Campbell, the trumpeting of Leval’s Toward a Fair Use Standard, and its advocacy for the primacy of an expansive notion of transformative use—the court gave short shrift to the transformative use that Koons had arguably made of Rogers’s original work. Indeed, one could argue that the Second Circuit implicitly reversed itself in its next case involving Jeff Koons and appropriationist art, in which it reached an exact opposite conclusion.
That said, the absence of proper crediting served as a critical factor in justifying the court’s rejection of Koons’s fair use defense. Specifically, in considering the first factor—the purpose and character of the use—the court drew on notions of attribution in two separate ways to weigh against a finding of fair use. First, employing the “good faith” criteria, the court pointed to Koons’s decision to remove a copyright notice from one of Rogers’s notecards that he sent to Italian artisans when he commissioned fabrication of his statue based on the Rogers photograph. As the court concluded, this action “suggests bad faith in defendant’s use of plaintiff’s work, and militates against a finding of fair use.” Second, the court concluded that the failure to credit supported its finding that Koons’s work was not commenting sufficiently on the original work to qualify for the heightened protection usually given to parody. As the court argued, Koons’s use failed to make the public aware of the original work and the resulting lack of proper crediting undermined a key reason why certain types of commentary—attributive ones—get fair use protection. “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use—without insuring public awareness of the original work—there would be no practicable boundary to the fair use defense,” noted the court.
Koons’ claim that his infringement of Rogers’ work is fair use solely because he is acting within an artistic tradition of commenting upon the commonplace thus cannot be accepted. The rule’s function is to insure that credit is given where credit is due. By requiring that the copied work be an object of the parody, we merely insist that the audience be aware that underlying the parody there is an original and separate expression, attributable to a different artist. This awareness may come from the fact that the copied work is publicly known or because its existence is in some manner acknowledged by the parodist in connection with the parody.
Courts within the Second Circuit continue to pick up this language from Rogers to emphasize the importance of crediting in the fair use calculus. For example, in a recent published decision, the Southern District of New York drew upon Rogers’s bad faith analysis to find this subfactor within the “purpose and character of use” weighed in favor of the plaintiff when the defendant removed the copyright mark, thereby robbing the use of attribution. All the while, at least one Second Circuit decision, NXIVM Corp. v. Ross Institute, has mandated that good faith be considered by any court conducting a fair use analysis.
The Ninth Circuit has also cited the failure to provide authorial attribution as an important factor weighing against fair use. In Marcus v. Rowley, the court hewed to Harper & Row’s good faith edict in making attribution a part of the first fair use factor. Thus, the defendant’s failure to provide credit weighed against a finding of fair use. As in Weissmann, the complete absence of any pecuniary harm and the use of the work in an academic setting did not trump the failure to credit. Meanwhile, in Narell v. Freeman, the author of a best-selling novel, Cynthia Freeman, was caught having lifted, word-for-word, portions of her work from a previously published book by Irena Narell about the history of Jewish migration to San Francisco. Although the Ninth Circuit ultimately found that the misappropriated sections were largely factual in nature and not protectible expression, it nevertheless addressed the issue of fair use. And while it ultimately found Freeman’s actions protected by the fair use doctrine, it held that the first factor “weigh[ed] heavily against Freeman because she did not acknowledge in her work that she had consulted Our City in writing Illusions.”
The Narell court cautioned that acknowledgment would not, by itself, excuse infringement. And that has certainly proven true in other cases. For example, when a luxury fashion designer pushed back against claims that it had infringed a photograph of a model wearing its clothing, it advanced its fair use defense by pointing out that it had credited the photographer. The court demurred, noting that
Defendant has not pointed to any precedent supporting its theories that because Defendant credited the photographer in the caption of the Photograph or because Plaintiff hired the model to wear Defendant’s clothing, Defendant has a right to use the Photograph. Simply put, attribution is not a defense against copyright infringement.
Even there, however, the court reaffirmed the value of attribution in the fair use calculus by citing to Narell favorably and noting that, while “acknowledgement does not itself excuse infringement,” a “finding [of] failure to properly attribute copyrighted material weighs against fair use.”
5. The Implicit Role of Attribution in Transpurposive Use Cases
Beyond the case law from the Second and Ninth Circuits explicitly embracing attribution as a factor, there are instances where crediting has played an implicit role in fair use determinations. This is particularly true in a body of recent cases involving technology-related transpurposive uses excused by courts under the defense. So, for example, in Kelly v. Arriba Soft Corp., the Ninth Circuit blessed the unauthorized creation of thumbnail versions of online images to facilitate search engine functionality. This judgment was famously reaffirmed in Perfect 10, Inc. v. Amazon.com, Inc., when the Ninth Circuit found that Google’s creation of thumbnails for its search engine was also protected.
The Kelly suit resulted from Arriba’s practice of crawling websites and indexing them by creating thumbnail versions of images that it found on those sites. Arriba would then provide these thumbnails to its users, as relevant, in results on its search engine. Photographer Leslie Kelly, a chronicler of the American West in her images, objected and sued for infringement. The Ninth Circuit, however, held that Arriba’s activities constituted fair use and the attributive nature of Arriba’s use helped propel both the first and fourth factors.
On the first factor, the court placed great weight on the fact that the use of the photographs was both transformative and attributive. Unlike the original images, which were intended to inform and provide visual enjoyment, Arriba’s thumbnails served no aesthetic purpose and, instead, functioned solely as “a tool to help index and improve access to images on the internet and their related web sites.” Here, the attributive characteristics of Arriba’s thumbnails become important, as they were instrumental to the transformative functionality they embodied. As the court noted, clicking on thumbnails would produce an “Images Attributes” page that would provide a link back to the original page, which was the photographer’s home page, where sourcing information and attribution would naturally follow. If the thumbnails did not produce sourcing and attribution, they would not serve a true indexing purpose and, consequently, they would not promote the locational function of search engines.
As for the fourth fair use factor, the court found no market harm precisely because of the link-back attribution feature: “By showing the thumbnails on its results page when users entered terms related to Kelly’s images, the search engine would guide users to Kelly’s web site rather than away from it.” Steering users to the home webpage for the original source of the photographs would then provide them with crediting and attribution information and, if they were interested, the ability to license. Although the Kelly court never invoked the language of crediting, attribution played an implicit role in permitting its creation and use of thumbnails under the fair use doctrine. If the thumbnails were created without an ability to link back to the original source (where attribution would be given), they would be neither “transpurposive” nor without market harm.
Similarly, when evaluating whether Google’s creation of cached copies of websites and the images of them for its search engine would be excused from infringement liability, the court in Field v. Google Inc., drew on prior Ninth Circuit authority and the open-ended language of the Copyright Act to find authority to weigh as a fifth factor in the fair use calculus “a comparison of the equities.” Notably, the equities and good faith that mattered to the court revolved around Google’s decision to provide a link back to cached websites—a key mechanism for digital attribution.
6. Attribution and Copyright Clearance Norms
Finally, the copyright norms we hold most dear as a society also support attribution as a mitigating factor in practices that might otherwise constitute infringement. For example, although the practice of quotation literally reproduces and distributes copyrighted material without permission, notwithstanding the antics of the James Joyce Estate, it is universally viewed as per se fair use. Indeed, the decision that gave rise to the fair use defense in the first place, Folsom v. Marsh, announced the obviousness of this proposition when Justice Story wrote that “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism.”Quotation inherently involves attribution. The use of inverted commas around a sentence directly indicates that the sentence’s origins lie with a third party and not with the author of the text that one is reading. Critically, those inverted commas are then accompanied by some form of attribution. Admittedly, the attribution is part of the transformative function of quoting. After all, criticism or commentary about someone else’s work cannot occur unless that other work is identified. But the equitable nature of a quotation—giving attribution—distinguishes it from the act of taking someone else’s words without permission in the exact same way but without attribution—an act that can amount to infringement. Or, to put it in the form of a Zen-like koan:
Q: What is a quotation without quotation marks?
A: An infringement.
When using portions of someone else’s work, a key differentiator between infringement and fair use is the act of attribution.
Common beliefs about copyright law reflect our mores (even when they do not entirely match up with the law), and these popular notions have also long viewed attribution as a factor in what actions should or should not constitute infringement. As any copyright practitioner knows, popular misconceptions about fair use abound. Members of the public will often cite a particular bright-line threshold of use (no more than five percent of a work, for example) as providing insulation from infringement liability; they will claim that, so long as one does not profit from unauthorized exploitation of a copyrighted work, it constitutes fair use; or they will contend that any educational use automatically constitutes fair use. Of course, each of these absolute statements is wrong. But the beliefs are all based on a kernel of truth: the less one uses of a work, the less one profits from an unauthorized exploitation, and the more academic a use, the more likely it is to constitute fair use. The same dynamic is at play with another popular myth: that giving proper credit can insulate you from infringement liability for the unauthorized exploitation of someone else’s work. While this notion is obviously incorrect, it is not entirely without basis. Although it may be infringing just the same, a credited use is indubitably more fair than an uncredited use, as the former better complies with societal norms against plagiarism and advances authorial interests in attribution. As such, the former is more likely (even if marginally so) than the latter to enjoy a viable fair use defense.
For example, consider a recent controversy at the intersection of intellectual property and cultural appropriation. In 2021, Addison Rae Easterling, a popular social media influencer, appeared on The Tonight Show to “teach” Jimmy Fallon eight of the most popular dances trending on TikTok and other social media sites. Although the dances can enjoy copyright protection as choreographic works, the routines were not licensed from their creators, and, to make matters worse, Easterling and Fallon originally failed to give any credit at all to the originators of the dances. As Kamilah Moore, an entertainment attorney and the chairperson of the California Assembly’s Reparations Task Force, has noted, this misstep was particularly pernicious because of its racial valence: it “received major backlash” because white TikTok superstars “have often gained notoriety and received millions of views by parroting dance routines primarily created by Black creators and other creators of color” while failing to provide “proper attribution in the marketplace.” Easterling and Fallon’s unauthorized recreation of the dances could well constitute fair use, but there is a vast difference between an unlicensed use that is also uncredited versus one that is at least attributive. Recognizing this and responding to public pressure, Fallon subsequently attempted to make amends by hosting the dance creators in a later broadcast of his show. Given the importance of correcting for persistent gaps in crediting that troublingly fall along racial, gender, and socioeconomic lines as well acknowledging the economic value of proper attribution, a fair use regime that incorporates attribution as a factor would incentivize users of intellectual property to at least recognize the cultural influencers from whom they draw.
As this survey of the fair use landscape and extant jurisprudence has shown, acknowledged or not, crediting is already an implicit fair use factor. The only remaining question is to what degree it is or should be. That query provides rife fodder for future scholarship, as the weight accorded to attributive use, just like the other fair use factors in section 107, would be something left firmly to the discretion of judges who can consider the particular context in an adaptive and holistic manner.
The Supreme Court decided Dastar almost twenty years ago. Since that time, the sky has admittedly not fallen. As such, it would be hyperbole to suggest there is some kind of pressing emergency to address the absence of attribution rights. Nevertheless, as we have detailed, the lack of substantive legal protection for crediting in the post-Dastar era has impoverished the responsiveness of our intellectual property regime to the interests and motivations of authors. With this in mind, change through legislation would face difficult odds. After all, it took almost a century for the United States to accede to the Berne Convention and, when it did, that only sparked the most minimal of efforts to comply with Berne’s attribution requirements through the relatively limited scope of VARA. The most significant legislative efforts on attribution in the past generation came through the falsification, removal, and alteration of CMI provisions passed as part of the DMCA. But even there, facilitation of infringement, rather than vindication of crediting interests, drove the statute—a fact made clearly by the claims’ onerous double-scienter requirements. As such, it would be disingenuous to fail to recognize that the prospects for legislative action for broader crediting protection are dim, at best. Moreover, there are good reasons to doubt whether the benefits of providing affirmative attribution rights either by overruling Dastar or by providing an independent cause of action for crediting under the Copyright Act would outweigh the risks. Instead, change can come in another, more incremental fashion—one that averts key dangers of an affirmative cause of action for crediting, has grounding in the existing jurisprudence, and could occur without legislation action.
A generation ago, Pierre Leval’s Toward a Fair Use Standard forced a first major change in fair use jurisprudence. I argue for a second. Like the implementation of transformative use, attributive use fits comfortably into the existing jurisprudence on fair use, speaks to the purpose and character of the use and even market harm factors, and ultimately supports the underlying purpose of the overall copyright regime: promotion of progress in the arts. Since fair use only represents a defense to infringement, such an admittedly restrained approach still tethers attribution to infringement and, as such, it does not represent a complete victory for the independent value of crediting. Nevertheless, as the success of Leval’s appeal to transformative use shows, such an entreaty for change can have an impact. Moreover, if implemented, recognition of attributive use would promote further development of a culture of crediting, a particularly important move at the dawn of the digital age, when all individuals make daily (infringing) use of copyrighted works thousands of times per day. Ultimately, therefore, the attributive use doctrine could not only enable fair use to operate in a way that is more consistent with the utilitarian design of our copyright regime, but it can also help build support for further recognition of attribution rights in the future.