D.I.Y. After Dastar: Protecting Creators' Moral Rights Through Creative Lawyering, Individual Contracts and Collectively Bargained Agreements

Authors

Rick Mortensen

First Page

335

Abstract

Part I examines the scope of Dastar and argues that it is sufficiently narrow to permit some false attribution claims based on section 43(a) of the Lanham Act. As support, Part I examines district court cases after Dastar as well as pre-Dastar attribution cases that are still arguably good law. Part II examines the Second Circuit case of Gilliam v. ABC, Inc., in which the Monty Python comedy troupe successfully enjoined ABC from showing a mutilated copy of its work, as a model for pursuing right of integrity claims. Part II will show that this case is still good law, including its Lanham Act rulings and its explicit endorsement of moral rights.

Part III will highlight other avenues artists have to protect their moral rights, using the bundle of rights given in the Copyright Act. Acknowledging that unequal bargaining power and the realities of the marketplace often prevent artists from fully exploiting these rights, this section will suggest collectively bargained agreements as away to ensure those rights, using the Writers Guild of America Basic Agreement as an imperfect, but illustrative, model.

Part IV will examine the effect of VARA on works of art that it does not protect, using both the text of the statute and the Congressional record. It will emphasize Congress's intent to keep VARA separate from the rest of the Copyright Act and refute the argument that VARA's narrow protections show a Congressional intent to bar moral rights protection for works outside VARA's scope.

Recommended Citation

Rick Mortensen, D.I.Y. After Dastar: Protecting Creators' Moral Rights Through Creative Lawyering, Individual Contracts and Collectively Bargained Agreements, 8 Vanderbilt Journal of Entertainment and Technology Law 335 (2020)
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol8/iss2/3