A once-collaborative relationship between two researchers in the area of maternal-fetal medicine went sour, resulting in a lawsuit against one of the researchers and her employer. Romero, a federal employee working at Wayne State, claimed that he’d been wrongly denied authorship credit for an article Buhimschi submitted for publication, an allegation that led the first journal involved to decide not to publish it. A resulting Wayne State (where Buhimschi then was) investigation found that Buhimschi had committed misconduct on two counts, but found insufficient evidence on another count. Romero objected to the last finding and to the recommended remedy (oversight of Buhimschi’s publications for two years) and tried to get Buhimschi’s later employer, Yale, in on it, but that didn’t work.
Buhimschi appealed the findings too, and she also published a version of the initial paper elsewhere, with the journal stating that it would publish a correction if it was later determined that Romero deserved authorship credit. Immediately thereafter, Yale University issued a press release crediting Yale researchers and a Yale team with the results of the research. The press release did not mention Romero or researchers at Wayne State. This press release, along with the manuscript itself, formed the basis of Romero's Lanham Act claim. Romero also sued for breach of contract (to be coauthors) and defamation (based on various statements made and transmitted to relevant parties during the investigation).
There was no consideration for the alleged contract, since Romero’s job required him to collaborate with Buhimschi. And there was no defamation because there’s an absolute privilege for invited comment, and Romero invited the various statements at issue by filing his complaints and engaging with the journals at issue.
It’s the Dastar discussion that caught my eye. This is an easy case under §43(a)(1)(A): there is no cause of action for false designation of origin for failing to give proper credit to Romero. Some courts have also kicked out §43(a)(1)(B) authorship claims on various grounds; the one the court picked here was that authorship isn’t a component of the “nature, characteristics, [or] qualities” of the goods themselves.
Of all the reasons to reject a §43(a)(1)(B) claim, this is the worst. (“Commercial advertising and promotion” and materiality are the best.) Authorship is intimately tied to the nature, characteristics, and qualities of the goods. Consider the effect of the court’s rationale were a publisher to promote a book as a previously undiscovered play by William Shakespeare: an arrant fraud, but apparently not actionable in the Sixth Circuit. Artificially constraining “nature, characteristics, [or] qualities” by trying to figure out what “really” makes up the goods, without reference to what consumers care about, risks substantial consumer deception. Consider in this regard “dolphin-safe tuna.” The tuna is the same no matter how many, or how few, dolphins were killed to obtain it. But consumers care about, and will pay a premium for, how the tuna was caught, because they care about dolphins, and therefore how the tuna was caught is part of its nature, characteristics or qualities.
There is a strand of reasoning that says that the law shouldn’t assist consumers in making decisions based on conditions of production, because as consumers they only have legitimate interests in the physical qualities of the objects they buy. But this (paternalist, and really condescending) position is inconsistent with our general commitment to consumer protection/sovereignty. Douglas Kysar’s article on this topic is quite excellent.
All of which is to say that, if misattribution of authorship in commercial advertising and promotion that is material to consumers is not actionable, we should be clear that the reason is that we want to manage the copyright/trademark divide, not that there is some essence of a product of which authorship is not a part.
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