United States: Authorship Credit For Scholarly And Creative Works: The Elusive American Attribution Right

Last Updated: November 19 2015
Article by David A. Kluft

What if were to tell you that I jointly authored this article with a colleague, but that I'm not going to give her any credit or attribution because I don't feel like it? Can she sue me for copyright infringement? No, because we are joint authors, so I have as much a right to publish this article as she does. If we lived in  Europe, my colleague might have relied on her inherent right of attribution, a moral right (or droit moral) which would have required me to list her as an author. But U.S. copyright law does not provide a general attribution right. So am I off the hook?  Maybe.

When the United States entered into the Berne Convention in 1988, we represented to the world that we didn't need to provide a general attribution right because we had a whole bunch of other laws that in effect did the same thing. Most notably, we had Section 43(a) of the Lanham Act. The use of Section 43(a) as a kind of attribution right was perhaps most famously applied by the Ninth Circuit in Smith v. Montoro, in which an actor's name was removed from the credits of a film and replaced by another actor's name. The Court held that this situation was akin to reverse passing off, where the defendant takes a competitor's product and sells it as the defendant's product. For example, if the Coca-Cola Company removed the label from a Pepsi bottle and sold it as Coke, this could be actionable as reverse passing off because it is a "false designation of origin."

But in 2003, the United States Supreme Court effectively put an end to the use of Section 43(a) as a way to force the proper attribution of scholarly or creative works. In Dastar v. Twentieth Century Fox, the Court held that the "origin" of a product for trademark purposes meant the origin of the object consumers are purchasing, not the author or inventor whose ideas led to the product's creation. So, for example, the Lanham Act protects a consumer's right to know that the bottle of Coke he or she is purchasing isn't really a Pepsi, but it doesn't protect a consumer's right to know the name of the individuals who invented Coke or Pepsi. Moreover, even though the Court acknowledged that attribution was a legitimate concern, it held that this concern should be addressed by copyright law. The Lanham Act could not be used to supplement the Copyright Act, especially where trademark protection, unlike copyright, in theory has no expiration date. The Court's ruling appeared also to preclude parallel state unfair competition claims.

So where does this leave authors, scholars and artists who – for whatever reason – don't have a viable copyright infringement claim but still want credit for their work? Attribution can be an emotional tinderbox with real economic consequences, so this issue will always be with us. Here are the ways in which some authors, inventors and creators may still scratch out a limited form of attribution right under U.S. law:

VARA

In 1990, Congress passed the Visual Artist Rights Act (VARA). VARA provides that the creator of a work has the right "to claim authorship of that work" during his or her lifetime, unless expressly waived in writing. Even before VARA, New York, California, Massachusetts and a few other states had enacted similar legislation. However, VARA and these state statutes apply only to certain works of "visual art" or "fine art," including paintings, drawings, sculptures and exhibition-quality photographs of which there is only a single copy or a limited edition. In other words, the kind of stuff in museums and expensive galleries. They are not going to help my colleague force me to give her credit for this article.

Contract Law

If attribution was important to my colleague, she should have gotten it in writing. But beware: a bare written license of her work to me would not have been enough. A contract to license a copyright does not by operation of law automatically include or address the right of attribution. So, for example, if you license or transfer the copyright in a book to a publisher, the publisher could simply remove your name and sell copies of it, absent a contractual obligation not to do so.

There may be some instances in which an attribution right can be implied by past dealings between the parties or custom and usage within a particular industry. For example, what if my colleague and I had written many articles together before, and there was an understanding that I would give her credit? Or what if I had had sent her a draft for approval that included her name? That's what happened in the 1910 case of Clemens v. Press Publishing Co., in which the publisher's inclusion of the author's name on the galley proof served as evidence that both parties interpreted the contract to include an attribution right. However, relying on implied rights is never a best practice when it comes to contract formation. A contract containing a license to use a work should separately express a contractual right of the author to be credited (or not) for that work. Then, failure to provide the attribution promised may give rise to claims for breach of contract and copyright infringement.

Creative Commons Licenses

For those of us who don't make a living from our creative output, it is neither practical nor economically feasible to draft a contract every time we create and share something. But we still want attribution for our cat photos, right? For these circumstances, you can affix a pre-fab Creative Commons license to your work. An example is on the right. This license effectively lets you use my photo for any purpose, on the condition that you attribute it to me. Failure to attribute it to me will breach the terms of the license and may give rise to a copyright infringement suit by me against you. In this way, I have given my work the equivalent of an attribution right.  However, without the full panoply of other moral rights to accompany it (such as the right of disclosure, which would allow me to decide where you can publish my work) this broad license may not restrict your ability to use my picture in a manner to which I object, such as to promote the involuntary stuffing of cats into boxes. Since my cat is already in a box, I'm taking that chance.

DMCA

The Digital Millennium Copyright Act (DMCA) includes provisions designed to protect the "integrity" of the copyright management information (CMI) that is distributed along with works in digital form. CMI is defined to include, among other things, the name of the author, the name of the copyright owner, and in some cases the names of performers within a work. Removal or alteration of CMI without the permission of the copyright owner may give rise to DMCA liability. The practical effect of this provision is that copyright owners can create for themselves a digital attribution right of sorts by including their name as part of the CMI. So, if my name is part of a file containing a copyright-protected image, and you find it on the internet, best not remove it from the metadata, from a caption or even from the "gutter credit." Of course, because such liability is limited to the removal of CMI without permission, none of this counts with respect to the aforementioned image of my cat, because I just gave you a license which would allow you to alter the file, presumably including the removal of CMI, as long as you give me credit somehow.

Defamation

A species of attribution right may be available in some states by way of a claim for implied defamation. My failure to attribute this article to my colleague may harm her reputation, particularly if she told her clients in advance to expect this article to come out with her name on it. This was the fact pattern in Sharratt v. Housing Innovations, Inc., a case decided by the Massachusetts Supreme Judicial Court, in which an architect had been awarded a certain building project and publicized that fact to his other customers. The defendant, however, issued a brochure listing a different architect. The Court held that this omission could have damaged the architect's reputation, and could give rise to a claim for defamation. Of course, resort to defamation may seem like a good idea, but defamation law is mired in so many byzantine common law privileges and onerous constitutional restrictions that it is likely to be unavailing as a substitute for the right of attribution except in limited circumstances.

Invention Credit

The Federal Circuit recently construed Section 256 of the Patent Act to provide a species of attribution right, grounded in some of the same reputational concerns expressed in Sharratt. Section 256 provides that the Patent Office may add an inventor to an existing patent if that inventor's name was erroneously omitted. In Shuhk v. Seagate, a scientist and former employee of Seagate argued that, pursuant to Section 256, his name should be added to certain patents. He did not claim to own the patents or have a financial stake in the inventions; he just felt that that the omission of his name as an inventor was harming his reputation. Seagate objected, arguing that alleged reputational injury, by itself, did not give the scientist standing to correct patents he didn't claim to own.  The Court disagreed, holding for the first time that "concrete and particularized reputational injury can give rise to Article III standing," especially in fields where "being considered an inventor of important subject matter is a mark of success."

False Advertising

Because the focus of Dastar was on the false designation of origin pursuant to Section 43(a)(1)(A) of the Lanham Act, some courts have opined that the failure to attribute authorship might nevertheless fall under the false advertising prong of the statute, Section 43(a)(1)(B), because it would be a misrepresentation as to a "quality" or "characteristic" of a product. However, most Courts have held, on the contrary, that the logic of Dastar also precludes false advertising claims, and likely any other Section 43(a) relief, for uncredited authors.

Of course, that is not to say that consumers whose purchasing decisions are affected by attribution errors have no recourse. For example, in Rice v. Putnam, a New York court (before Dastar) refused to dismiss a false advertising claim by consumers who were disappointed to learn that a book, which they thought was a posthumously published novel by William Caunitz, was in fact largely authored by someone else, for whose work they ostensibly would have paid less. Professor Nimmer suggests that such causes of action, which don't tread on the territory of copyright law, survive Dastar.  This might mean that while my colleague can't sue me for lifting her work, you dear reader maybe can.

Right of Publicity

Traditionally, the right of attribution also includes the right not to be credited on works you didn't create, and sometimes on the works you did. Even after Dastar, relief for authors and creators in this situation is likely still available under various state statutes protecting the "right of publicity" or, where such statutes don't exist, the common law tort of misappropriation of a name or likeness.  These laws guard against the unauthorized commercial exploitation of the publicity value of someone else's persona.

For example, in 1992, the author Stephen King successfully enjoined the filmmakers of The Lawnmower Man, who were planning to call the film "Stephen King's The Lawnmower Man" and include a "based upon" credit for King. In fact, King didn't write the script or have anything to do with the film, but it arguably was modeled on a short story he had once written and sold.  The Second Circuit held that the proposed title of the film was misleading and an improper commercial exploitation of King's name, but that the less prominent "based upon" credit, if true, was fine. King relied principally on Section 43(a) of the Lanham Act, although he also brought state law claims which the Court held were meritorious but duplicative. King probably could have achieved the same result today with just his state law claims, including one pursuant to New York's "right of privacy" statute, which prohibits the use of someone's name or likeness for advertising or trade purposes without permission. Although it likely would not have impacted King's case, it should be noted that the right of publicity is somewhat narrower than an inherent attribution right, because it is limited to use in "advertising or trade," the definition of which may depend on the circumstances and vary among courts.

Plagiarism

Finally, plagiarism is an ethical breach in which one person copies the ideas or work of another and passes it off as his or her own, without attribution. As most readers of this article will already know, plagiarism is not a legal cause of action (although some plagiarism may also involve copyright infringement, for example, if the material is copied verbatim and republished).  Nevertheless, if plagiarism occurs within an institutional environment such as a university, extra-legal relief may be available through an internal disciplinary proceeding, the form of which will be dictated by the school's code(s) of conduct and similar documents. Whether an act qualifies as plagiarism — for example, my passing off this joint work as if I alone wrote it — will vary by institution.

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