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High court rejects Fox’s argument in video case

Net failed to renew copyright in original series

WASHINGTON — The Supreme Court ruled Monday that 20th Century Fox could not use trademark law to bar a third party from distributing videos incorporating documentary footage from WWII that had fallen into the public domain.

The 8-0 ruling capped an obscure case involving Fox and Eugene, Ore.-based Dastar Corp. that began in 1995, when Dastar began distributing in Europe the video set “World War II Campaigns,” which drew on footage originally compiled for a 1949 TV series owned by Fox.

Although Fox acknowledged that it had failed to renew its copyright in the original series, allowing it to enter the public domain, it sued Dastar anyway after the vid company removed all references to Fox or series producer Time Inc. in the credits, replacing them with its own introductory material saying “Dastar Corp. presents” and an “Entertainment Distributing Production.”

In its suit, Fox accused Dastar of “reverse passing off,” under the Lanham Act, which generally prevents the unaccredited copying of a work.

Original doc was based on Gen. Dwight D. Eisenhower’s 1948 book for Doubleday, “Crusade in Europe,” recounting his years as supreme allied commander in WWII. Fox acquired TV rights to the book and assigned Time to produce the series.

In 1975, Doubleday renewed its copyright on the book, but Fox neglected to renew its claims to the footage.

In 1988, Fox reacquired the TV rights to Eisenhower’s book, including the exclusive right to distribute the original series on video. It sublicensed rights to New Line Home Video and SFM Entertainment.

Case has been watched by public domain advocates as an attempt by Fox to backdoor copyright law and lay exclusive claim to public domain material by using trademark and unfair competition laws.

Writing for the robes, Justice Antonin Scalia said Fox should have renewed its copyright to have a case. “Had Fox renewed the copyright in the (‘Crusade’) television series, it would have had an easy claim of copyright infringement,” Scalia said in a 15-page opinion.

The Lanham Act, he said, “is not designed to protect originality or creativity,” the traditional purview of copyright law. Instead, Congress meant it to apply only to “tangible goods for sale.”

Ruling overturns a $1.5 million judgment in Fox’s favor handed down last year by the Ninth Circuit Court of Appeals in San Francisco.

Scalia noted that there is still a live issue in the case concerning Doubleday’s copyright in the book, which may have been infringed by Dastar.

(Paul Sweeting is a reporter for Daily Variety sister publication Video Business.)

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