Dastar Corporation v. Twentieth Century Fox Film Corporation - Oral Argument - April 02, 2003

Dastar Corporation v. Twentieth Century Fox Film Corporation

Media for Dastar Corporation v. Twentieth Century Fox Film Corporation

Audio Transcription for Opinion Announcement - June 02, 2003 in Dastar Corporation v. Twentieth Century Fox Film Corporation

Audio Transcription for Oral Argument - April 02, 2003 in Dastar Corporation v. Twentieth Century Fox Film Corporation

William H. Rehnquist:

We'll hear argument now in Number 02-428, Dastar Corporation versus Twentieth Century Fox Film Corporation.

Mr. Gerber.

David A. Gerber:

Thank you, Mr. Chief Justice, and may it please the Court:

Dastar discovered that an old TV show made by Time Inc. was in the public domain because Fox neglected to renew the copyright.

Dastar adapted the public domain show at considerable expense to make it into a war narrative as opposed to Eisenhower's story.

Dastar's product did not refer to Time Inc. Dastar's product also did not refer to respondents who had their own competitive video of the same TV show.

William H. Rehnquist:

Of the same what?

David A. Gerber:

TV show.

Because of the latter, that is, the omission of credits to respondents, and the finding that Dastar acted willfully in omitting those credits, the lower court awarded $1.6 million, substantially in excess of the $850,000 total gross of Dastar, in order to deter it.

The lower courts departed from the Lanham Act in a very expansionary way in our view in six separate dimensions.

Ruth Bader Ginsburg:

Can we go back to your statement?

As I... as I understood it, it wasn't the omission of Fox, but the addition of your people.

In other words, it wasn't the failure to give credit to respondents, but it was petitioner's taking credit for it that was what the lower courts thought was wrong.

David A. Gerber:

Taking the lower courts in ascending order, on page 53a of the cert petition, the language is that the court finds that defendant's failure to identify the television series and the book is misleading to the public.

And then at the Ninth Circuit level, on page 3a of the petition, the language is that Dastar copied, et cetera, and marketed it without attribution to Fox.

Neither court, Justice Ginsburg, examined Dastar's credits, affirmative credits, for accuracy, for whether they registered with the consumers, for misleadingness or falsity in any way.

I would suggest that the record indeed is that it was the omission of credits for their competitors that was, in fact, the basis for the double award.

William H. Rehnquist:

This is a failure... this is a failure to attribute case then?

David A. Gerber:

Yes, it is, Your Honor.

Our first and most sweeping point--

John Paul Stevens:

But may I just point out on 3a, it... the quote... you left out the first clause I think.

They... they labeled the... the resulting product with a different name and marketed it without attribution.

David A. Gerber:

--Oh, yes.

That's a reference to changing the title of the work.

The entire phrase... and pardon my truncation of it... on page 3a is that Dastar copied substantially the entire Crusade in Europe series created by Twentieth Century Fox, labeled the resulting product with a different name, and marketed it without attribution.

The name Dastar put on it, instead of Crusade in Europe, was World War II Campaigns in Europe.

And you will, I believe, see that in neither opinion does either court take a look at the credits on Dastar's product and conclude that they were in any way misleading, nor does the court examine them at all.

Our first--

Sandra Day O'Connor:

Counsel, would... would the new Dastar video qualify as a derivative work that would deserve copyright protection on its own?

David A. Gerber:

--Yes, yes.