2
Jan/07

Samuel Clemens May Claim To Be Mark Twain Under Lanham Act


But Samuel Clemens can’t claim to be Mark Twain in my business dealings with him (if it matters to me that he is in fact Mark Twain).
Antidote International Films, Inc. v. Bloomsbury Publishing, PLC, — F.Supp.2d –, 2006 WL 3822484 (S.D.N.Y.): Defendant author wrote a fiction work as under a pseudonym, and in promoting the work, created a persona for the pseudonym (that of the protagonist of the fiction work, a 12 year old boy). In negotiating a sale of film rights with plaintiff, defendant (in the guise of the boy’s representative), represented that the boy was real (to the point of fabricating documents to prove the existence of the boy). Defendant’s ruse was uncovered in the popular press, and the film rights’ value dropped to nothing. Plaintiff sued defendant for fraud and under several theories under Lanham Act 43(a), including false designation of origin. Defendant moves to dismiss.
Plaintiff’s fraud claim stands (as the existence of the boy was of material importance to plaintiff’s plans for a film).
The 43(a) claims however, are barred by Dastar for the reasons explained here by 43(B)log. And I cannot recommend Prof Tushnet’s post (and cites therein) highly enough.
In short, Dastar, intended to prevent authors of public domain works from using trademark law to re-claim such PD works (or even forcing attribution), holds that ‘origin’, as used by the Lanham Act, doesn’t refer to the source of ideas, concepts or communications. Thus defendant did not misrepresent the origin of the novel. As Prof Tushnet notes, the practice of anonymous and pseudonymous authorship of novels seems to weigh heavily against holding otherwise.
On a related note, Lemony Snicket may not be his real name.