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Fox Loses Trademark Case Over WWII Series

4 Jun, 2003 By: Holly J. Wagner

20th Century Fox can't use trademark law to regain control of materials it allowed to lapse into the public domain, the U.S. Supreme Court has ruled.

The decision came in a lawsuit Fox filed in 1999 against Dastar Film Corp. over an abridged compilation video built with excerpts from the 1949 Time Inc. TV series “Crusade in Europe,” which was based on General Dwight D. Eisenhower's European campaign in World War II. The original series was compiled from films that various military and news agencies provided. Doubleday, which had rights to the book, renewed its copyrights in 1975, but Fox allowed the TV series copyrights Doubleday had assigned to it to lapse. The studio regained TV and video rights in 1988 and sublicensed the video rights to New Line Home Entertainment and SFM Entertainment. In 1995 Dastar released a much shorter – and lower-priced – Beta video set under the title “World War II Campaigns in Europe.” The product had no credits to the television series. The studio interests sued Dastar, alleging the company was trying to take credit for the series. The studios made their claim under the Lanham Act, claiming Dastar was “reverse passing off” the product as original.

The Supreme Court found that a rights holder may not use trademark law to bootstrap a claim that it neglected to assert under copyright law.

“The creative talent of the sort that lay behind the ‘Campaigns' videos is not left without protection,” Justice Antonin Scalia wrote in the court's majority opinion. “The original film footage used in the ‘Crusade' television series could have been copyrighted, [citation omitted] as was copyrighted the “Crusade” television series, even though it included material from the public domain. Had Fox renewed the copyright in the ‘Crusade' television series, it would have had an easy claim of copyright infringement.”

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