Dastar Corp. v. Twentieth Century Fox Film Corp.

OCTOBER TERM, 2002

															Syllabus

															DASTAR CORP. v. TWENTIETH CENTURY FOX FILM CORP. ET
AL.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT

															No. 02-428. Argued April 2, 2003-Decided June 2, 2003

															General Dwight D. Eisenhower's World War II book, Crusade in
Europe, was published by Doubleday, which registered the work's
copyright and granted exclusive television rights to an affiliate
of respondent Twentieth Century Fox Film Corporation (Fox). Fox, in
turn, arranged for Time, Inc., to produce a Crusade in Europe
television series based on the book, and Time assigned its
copyright in the series to Fox. The series was first broadcast in
1949. In 1975, Doubleday renewed the book's copyright, but Fox
never renewed the copyright on the television series, which expired
in 1977, leaving the series in the public domain. In 1988, Fox
reacquired the television rights in the book, including the
exclusive right to distribute the Crusade television series on
video and to sublicense others to do so. Respondents SFM
Entertainment and New Line Home Video, Inc., acquired from Fox the
exclusive rights to manufacture and distribute Crusade on video. In
1995, petitioner Dastar released a video set, World War II
Campaigns in Europe, which it made from tapes of the original
version of the Crusade television series and sold as its own
product for substantially less than New Line's video set. Fox, SFM,
and New Line brought this action alleging, inter alia, that
Dastar's sale of Campaigns without proper credit to the Crusade
television series constitutes "reverse passing off" in violation of
§ 43(a) of the Lanham Act. The District Court granted respondents
summary judgment. The Ninth Circuit affirmed in relevant part,
holding, among other things, that because Dastar copied
substantially the entire Crusade series, labeled the resulting
product with a different name, and marketed it without attribution
to Fox, Dastar had committed a "bodily appropriation" of Fox's
series, which was sufficient to establish the reverse passing
off. Held: Section 43(a) of the Lanham Act does not prevent
the unaccredited copying of an uncopyrighted work. Pp. 28-38.

															(a) Respondents' claim that Dastar has made a "false designation
of origin, false or misleading description of fact, or false or
misleading representation of fact, which ... is likely to cause
confusion ... as to the origin ... of [its] goods" in violation of
§ 43(a) of the Lanham Act, 15 U. S. C. § 1125(a), would undoubtedly
be sustained if Dastar had bought 24 Syllabus

															some of New Line's Crusade videotapes and merely repackaged them
as its own. However, Dastar has instead taken a creative work in
the public domain, copied it, made modifications (arguably minor),
and produced its very own series of videotapes. If "origin" refers
only to the manufacturer or producer of the physical "good" that is
made available to the public (here, the videotapes), Dastar was the
origin. If, however, "origin" includes the creator of the
underlying work that Dastar copied, then someone else (perhaps Fox)
was the origin of Dastar's product. At bottom, the Court must
decide what § 43(a) means by the "origin" of "goods." Pp.28-31.

															(b) Because Dastar was the "origin" of the physical products it
sold as its own, respondents cannot prevail on their Lanham Act
claim. As dictionary definitions affirm, the most natural
understanding of the "origin" of "goods"-the source of wares-is the
producer of the tangible product sold in the marketplace, here
Dastar's Campaigns videotape. The phrase "origin of goods" in the
Lanham Act is incapable of connoting the person or entity that
originated the ideas that "goods" embody or contain. The consumer
typically does not care about such origination, and § 43(a) should
not be stretched to cover matters that are of no consequence to
purchasers. Although purchasers do care about ideas or
communications contained or embodied in a communicative product
such as a video, giving the Lanham Act special application to such
products would cause it to conflict with copyright law, which is
precisely directed to that subject, and which grants the public the
right to copy without attribution once a copyright has expired, e. g., Sears, Roebuck & Co. v. Stiffel
Co., 376 U. S.
225 , 230. Recognizing a § 43(a) cause of action here would
render superfluous the provisions of the Visual Artists Rights Act
that grant an artistic work's author "the right ... to claim
authorship," 17 U. S. C. § 106A(a)(1)(A), but carefully limit and
focus that right, §§ 101, 106A(b), (d)(l), and (e). It would also
pose serious practical problems. Finally, reading § 43(a) as
creating a cause of action for, in effect, plagiarism would be hard
to reconcile with, e. g., Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205 , 211.
Pp.31-38.

															34 Fed. Appx. 312, reversed and remanded.

															SCALIA, J., delivered the opinion of the Court, in which all
other Members joined, except BREYER, J., who took no part in the
consideration or decision of the case.

															David A. Gerber argued the cause for petitioner. him on the
briefs were Stewart A. Baker, Bennett Cooper, and David Nimmer.

															With Evan 25 Gregory G. Garre argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Solicitor
General Olson, Assistant Attorney General McCallum, Deputy
Solicitor General Clement, Anthony J. Steinmeyer, and Mark S.
Davies.

															Dale M. Cendali argued the cause for respondents. With her on
the briefs were Walter E. Dellinger, Pamela A. Harris, Jonathan D.
Hacker, Jeremy Maltby, Pammela Quinn, and Gary D. Roberts. *

															JUSTICE SCALIA delivered the opinion of the Court.

															In this case, we are asked to decide whether § 43(a) of the
Lanham Act, 15 U. S. C. § 1125(a), prevents the unaccredited
copying of a work, and if so, whether a court may double a profit
award under § 1117(a), in order to deter future infringing
conduct.

															I

															In 1948, three and a half years after the German surrender at
Reims, General Dwight D. Eisenhower completed Crusade in Europe,
his written account of the allied campaign in Europe during World
War II. Doubleday published the book, registered it with the
Copyright Office in 1948, and granted exclusive television rights
to an affiliate of respondent Twentieth Century Fox Film
Corporation (Fox). Fox, in turn, arranged for Time, Inc., to
produce a television series, also

															*Briefs of amici curiae urging reversal were filed for
the International Trademark Association by Bruce R. Ewing; and for MalIa Pollack et al. by Ms. Pollack, pro se. Briefs of amici curiae urging affirmance were filed for
the Association for Competitive Technology et al. by Paul
Bender and Michael R. Klipper; and for the Directors
Guild of America et al. by Richard P. Bress. Briefs of amici curiae were filed for the American
Intellectual Property Law Association by William G. Barber, Louis T. Pirkey, and Ronald E. Myrick; for
the American Library Association et al. by Jonathan Band and Peter Jaszi; and for Intellectual Property Law Professors by Tyler T. Ochoa. 26 called Crusade in Europe, based on the book, and Time assigned
its copyright in the series to Fox. The television series,
consisting of 26 episodes, was first broadcast in 1949. It combined
a soundtrack based on a narration of the book with film footage
from the United States Army, Navy, and Coast Guard, the British
Ministry of Information and War Office, the National Film Board of
Canada, and unidentified "Newsreel Pool Cameramen." In 1975,
Doubleday renewed the copyright on the book as the" 'proprietor of
copyright in a work made for hire.'" App. to Pet. for Cert. 9a.
Fox, however, did not renew the copyright on the Crusade television
series, which expired in 1977, leaving the television series in the
public domain.

															In 1988, Fox reacquired the television rights in General
Eisenhower's book, including the exclusive right to distribute the
Crusade television series on video and to sublicense others to do
so. Respondents SFM Entertainment and New Line Home Video, Inc., in
turn, acquired from Fox the exclusive rights to distribute Crusade
on video. SFM obtained the negatives of the original television
series, restored them, and repackaged the series on videotape; New
Line distributed the videotapes.

															Enter petitioner Dastar. In 1995, Dastar decided to expand its
product line from music compact discs to videos. Anticipating
renewed interest in World War II on the 50th anniversary of the
war's end, Dastar released a video set entitled World War II
Campaigns in Europe. To make Campaigns, Dastar purchased eight beta
cam tapes of the origi nal version of the Crusade television
series, which is in the public domain, copied them, and then edited
the series. Dastar's Campaigns series is slightly more than half as
long as the original Crusade television series. Dastar substituted
a new opening sequence, credit page, and final closing for those of
the Crusade television series; inserted new chapter-title sequences
and narrated chapter introductions; moved the "recap" in the
Crusade television series to the 27 beginning and retitled it as a "preview"; and removed references
to and images of the book. Dastar created new packaging for its
Campaigns series and (as already noted) a new title.

															Dastar manufactured and sold the Campaigns video set as its own
product. The advertising states: "Produced and Distributed by: Entertainment Distributing" (which is owned by Dastar), and
makes no reference to the Crusade television series. Similarly, the
screen credits state "DASTAR CORP presents" and "an ENTERTAINMENT
DISTRIBUTING Production," and list as executive producer, producer,
and associate producer employees of Dastar. Supp. App. 2-3, 30. The
Campaigns videos themselves also make no reference to the Crusade
television series, New Line's Crusade videotapes, or the book.
Dastar sells its Campaigns videos to Sam's Club, Costco, Best Buy,
and other retailers and mail-order companies for $25 per set,
substantially less than New Line's video set.

															In 1998, respondents Fox, SFM, and New Line brought this action
alleging that Dastar's sale of its Campaigns video set infringes
Doubleday's copyright in General Eisenhower's book and, thus, their
exclusive television rights in the book. Respondents later amended
their complaint to add claims that Dastar's sale of Campaigns
"without proper credit" to the Crusade television series
constitutes "reverse passing off" 1 in violation of § 43(a) of the
Lanham Act, 60 Stat. 441, 15 U. S. C. § 1125(a), and in violation
of state unfaircompetition law. App. to Pet. for Cert. 31a. On
crossmotions for summary judgment, the District Court found for
respondents on all three counts, id., at 54a-55a, treating its

															1 Passing off (or palming off, as it is sometimes called) occurs
when a producer misrepresents his own goods or services as someone
else's. See, e. g., O. & W Thum Co. v. Dickinson, 245 F.6d
9 , 621 (CA6 1917). "Reverse passing off," as its name
implies, is the opposite: The producer misrepresents someone else's
goods or services as his own. See, e. g., Williams v. Curtiss-Wright Corp., 691 F.2d
168 , 172 (CA3 1982). 28 resolution of the Lanham Act claim as controlling on the
state-law unfair-competition claim because "the ultimate test under
both is whether the public is likely to be deceived or confused,"
id., at 54a. The court awarded Dastar's profits to respondents and
doubled them pursuant to § 35 of the Lanham Act, 15 U. s. C. §
1117(a), to deter future infringing conduct by petitioner.

															The Court of Appeals for the Ninth Circuit affirmed the judgment
for respondents on the Lanham Act claim, but reversed as to the
copyright claim and remanded. 34 Fed. Appx. 312, 316 (2002). (It
said nothing with regard to the state-law claim.) With respect to
the Lanham Act claim, the Court of Appeals reasoned 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 to Fox[,
and] therefore committed a 'bodily appropriation' of Fox's series." Id., at 314. It concluded that "Dastar's 'bodily
appropriation' of Fox's original [television] series is sufficient
to establish the reverse passing off." Ibid. 2 The court also
affirmed the District Court's award under the Lanham Act of twice
Dastar's profits. We granted certiorari. 537 U. s. 1099 (2003).

															II

															The Lanham Act was intended to make "actionable the deceptive
and misleading use of marks," and "to protect persons engaged in
... commerce against unfair competition." 15 U. s. C. § 1127. While
much of the Lanham Act addresses

															2 As for the copyright claim, the Ninth Circuit held that the
tax treatment General Eisenhower sought for his manuscript of the
book created a triable issue as to whether he intended the book to
be a work for hire, and thus as to whether Doubleday properly
renewed the copyright in 1976. See 34 Fed. Appx., at 314. The
copyright issue is still the subject of litigation, but is not
before us. We express no opinion as to whether petitioner's product
would infringe a valid copyright in General Eisenhower's book. 29 the registration, use, and infringement of trademarks and
related marks, § 43(a), 15 U. S. C. § 1125(a) is one of the few
provisions that goes beyond trademark protection. As originally
enacted, § 43(a) created a federal remedy against a person who used
in commerce either "a false designation of origin, or any false
description or representation" in connection with "any goods or
services." 60 Stat. 441. As the Second Circuit accurately observed
with regard to the original enactment, however-and as remains true
after the 1988 revision-§ 43(a) "does not have boundless
application as a remedy for unfair trade practices," Alfred
Dunhill, Ltd. v. Interstate Cigar Co., 499 F.2d
232 , 237 (1974). "[B]ecause of its inherently limited wording,
§ 43(a) can never be a federal 'codification' of the overall law of
'unfair competition,'" 4 J. McCarthy, Trademarks and Unfair
Competition § 27:7, p. 27-14 (4th ed. 2002) (McCarthy), but can
apply only to certain unfair trade practices prohibited by its
text.

															Although a case can be made that a proper reading of § 43(a), as
originally enacted, would treat the word "origin" as referring only
"to the geographic location in which the goods originated," Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763 , 777 (1992)
(STEVENS, J., concurring in judgment),3 the Courts of Appeals
considering the issue, begin-

															3 In the original provision, the cause of action for false
designation of origin was arguably "available only to a person
doing business in the locality falsely indicated as that of
origin," 505 U. S., at 778, n. 3. As adopted in 1946, § 43(a)
provided in full:

															"Any person who shall affix, apply, or annex, or use in
connection with any goods or services, or any container or
containers for goods, a false designation of origin, or any false
description or representation, including words or other symbols
tending falsely to describe or represent the same, and shall cause
such goods or services to enter into commerce, and any person who
shall with knowledge of the falsity of such designation of origin
or description or representation cause or procure the same to be
transported or used in commerce or deliver the same to any carrier
to be transported or used, shall be liable to a civil action by any
person doing business in the locality falsely indicated as that of
origin or the region in which said locality is situated, or by any
person who believes that he is or is 30 ning with the Sixth Circuit, unanimously concluded that it "does
not merely refer to geographical origin, but also to origin of
source or manufacture," Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d
405 , 408 (1963), thereby creating a federal cause of action for
traditional trademark infringement of unregistered marks. See 4
McCarthy § 27:14; Two Pesos, supra, at 768. Moreover, every
Circuit to consider the issue found § 43(a) broad enough to
encompass reverse passing off. See, e. g., Williams v. CurtissWright Corp., 691 F.2d
168 , 172 (CA3 1982); Arrow United Indus., Inc. v. Hugh Richards, Inc., 678 F.2d
410 , 415 (CA2 1982); F. E. L. Publications, Ltd. v. Catholic Bishop of Chicago, 214 USPQ 409, 416 (CA7 1982); Smith v. Montoro, 648 F. 2d 602, 603 (CA9 1981); Bangor Punta Operations, Inc. v. Universal Marine Co., 543 F.2d
1107 , 1109 (CA5 1976). The Trademark Law Revision Act of
1988 made clear that § 43(a) covers origin of production as well as
geographic origin.4 Its language is amply inclusive, moreover, of
reverse passing off-if indeed it does not implicitly adopt the
unanimous court-of-appeals jurisprudence on that subject. See, e. g.,

															likely to be damaged by the use of any such false description or
representation." 60 Stat. 441.

															4 Section 43(a) of the Lanham Act now provides:

															"Any person who, on or in connection with any goods or services,
or any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or
false or misleading representation of fact, which-

															"(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such
person with another person, or as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities by
another person, or

															"(E) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic origin of his or
her or another person's goods, services, or commercial
activities,

															"shall be liable in a civil action by any person who believes
that he or she is or is likely to be damaged by such act." 15 U. S.
C. § 1125(a)(I). 31 Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d
958 , 963-964, n. 6 (CADC 1990) (Thomas, J.).

															Thus, as it comes to us, the gravamen of respondents' claim is
that, in marketing and selling Campaigns as its own product without
acknowledging its nearly wholesale reliance on the Crusade
television series, Dastar has made a "false designation of origin,
false or misleading description of fact, or false or misleading
representation of fact, which ... is likely to cause confusion ...
as to the origin ... of his or her goods." § 43(a). See, e. g., Brief for Respondents 8, 11. That claim would undoubtedly be
sustained if Dastar had bought some of New Line's Crusade
videotapes and merely repackaged them as its own. Dastar's alleged
wrongdoing, however, is vastly different: It took a creative work
in the public domain-the Crusade television series-copied it, made
modifications (arguably minor), and produced its very own series of
videotapes. If "origin" refers only to the manufacturer or producer
of the physical "goods" that are made available to the public (in
this case the videotapes), Dastar was the origin. If, however,
"origin" includes the creator of the underlying work that Dastar
copied, then someone else (perhaps Fox) was the origin of Dastar's
product. At bottom, we must decide what § 43(a)(1)(A) of the Lanham
Act means by the "origin" of "goods."

															III

															The dictionary definition of "origin" is "[t]he fact or process
of coming into being from a source," and "[t]hat from which
anything primarily proceeds; source." Webster's New International
Dictionary 1720-1721 (2d ed. 1949). And the dictionary definition
of "goods" (as relevant here) is "[w]ares; merchandise." Id., at 1079. We think the most natural understanding of the
"origin" of "goods"-the source of wares-is the producer of the
tangible product sold in the marketplace, in this case the physical
Campaigns videotape sold by Dastar. The concept might be stretched
(as it was 32 under the original version of § 43(a)) 5 to include not only the
actual producer, but also the trademark owner who commissioned or
assumed responsibility for ("stood behind") production of the
physical product. But as used in the Lanham Act, the phrase "origin
of goods" is in our view incapable of connoting the person or
entity that originated the ideas or communications that "goods"
embody or contain. Such an extension would not only stretch the
text, but it would be out of accord with the history and purpose of
the Lanham Act and inconsistent with precedent.

															Section 43(a) of the Lanham Act prohibits actions like trademark
infringement that deceive consumers and impair a producer's
goodwill. It forbids, for example, the Coca-Cola Company's passing
off its product as Pepsi-Cola or reverse passing off Pepsi-Cola as
its product. But the brand-loyal consumer who prefers the drink
that the Coca-Cola Company or PepsiCo sells, while he believes that
that company produced (or at least stands behind the production of)
that product, surely does not necessarily believe that that company
was the "origin" of the drink in the sense that it was the very
first to devise the formula. The consumer who buys a branded
product does not automatically assume that the brand-name company
is the same entity that came up with the idea for the product, or
designed the product-and typically does not care whether it is. The
words of the Lan-

															5 Under the 1946 version of the Act, § 43(a) was read as
providing a cause of action for trademark infringement even where
the trademark owner had not itself produced the goods sold under
its mark, but had licensed others to sell under its name goods
produced by them-the typical franchise arrangement. See, e. g., My Pie Int'l, Inc. v. Debould, Inc., 687 F.2d
919 (CA7 1982). This stretching of the concept "origin of
goods" is seemingly no longer needed: The 1988 amendments to §
43(a) now expressly prohibit the use of any "word, term, name,
symbol, or device," or "false or misleading description of fact"
that is likely to cause confusion as to "affiliation, connection,
or association ... with another person," or as to "sponsorship, or
approval" of goods. 15 U. S. C. § 1125(a). 33 ham Act should not be stretched to cover matters that are
typically of no consequence to purchasers.

															It could be argued, perhaps, that the reality of purchaser
concern is different for what might be called a communicative
product-one that is valued not primarily for its physical
qualities, such as a hammer, but for the intellectual content that
it conveys, such as a book or, as here, a video. The purchaser of a
novel is interested not merely, if at all, in the identity of the
producer of the physical tome (the publisher), but also, and indeed
primarily, in the identity of the creator of the story it conveys
(the author). And the author, of course, has at least as much
interest in avoiding passing off (or reverse passing off) of his
creation as does the publisher. For such a communicative product
(the argument goes) "origin of goods" in § 43(a) must be deemed to
include not merely the producer of the physical item (the
publishing house Farrar, Straus and Giroux, or the video producer
Dastar) but also the creator of the content that the physical item
conveys (the author Tom Wolfe, or-assertedly-respondents).

															The problem with this argument according special treatment to
communicative products is that it causes the Lanham Act to conflict
with the law of copyright, which addresses that subject
specifically. The right to copy, and to copy without attribution,
once a copyright has expired, like "the right to make [an article
whose patent has expired]including the right to make it in
precisely the shape it carried when patented-passes to the public." Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 , 230
(1964); see also Kellogg Co. v. National Biscuit Co., 305 U. S. 111 ,
121-122 (1938). "In general, unless an intellectual property right
such as a patent or copyright protects an item, it will be subject
to copying." TrafFix Devices, Inc. v. Marketing Displays,
Inc., 532 U. S.
23 , 29 (2001). The rights of a patentee or copyright holder are
part of a "carefully crafted bargain," Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141 , 150-151
(1989), under which, once the patent or copy- 34 right monopoly has expired, the public may use the invention or
work at will and without attribution. Thus, in construing the
Lanham Act, we have been "careful to caution against misuse or
over-extension" of trademark and related protections into areas
traditionally occupied by patent or copyright. TrafFix, 532
U. S., at 29. "The Lanham Act," we have said, "does not exist to
reward manufacturers for their innovation in creating a particular
device; that is the purpose of the patent law and its period of
exclusivity." Id., at 34. Federal trademark law "has no
necessary relation to invention or discovery," Trade-Mark
Cases, 100 U. S.
82 , 94 (1879), but rather, by preventing competitors from
copying "a source-identifying mark," "reduce[s] the customer's
costs of shopping and making purchasing decisions," and "helps
assure a producer that it (and not an imitating competitor) will
reap the financial, reputation-related rewards associated with a
desirable product," Qualitex Co. v. Jacobson Products Co., 514 U. S.
159 , 163-164 (1995) (internal quotation marks and citation
omitted). Assuming for the sake of argument that Dastar's
representation of itself as the "Producer" of its videos amounted
to a representation that it originated the creative work conveyed
by the videos, allowing a cause of action under § 43(a) for that
representation would create a species of mutant copyright law that
limits the public's "federal right to 'copy and to use'" expired
copyrights, Bonito Boats, supra, at 165.

															When Congress has wished to create such an addition to the law
of copyright, it has done so with much more specificity than the
Lanham Act's ambiguous use of "origin." The Visual Artists Rights
Act of 1990, § 603(a), 104 Stat. 5128, provides that the author of
an artistic work "shall have the right ... to claim authorship of
that work." 17 U. S. C. § 106A(a)(1)(A). That express right of
attribution is carefully limited and focused: It attaches only to
specified "work[s] of visual art," § 101, is personal to the
artist, §§ 106A(b) and (e), and endures only for "the life of the
au- 35 thor," § 106A(d)(1). Recognizing in § 43(a) a cause of action
for misrepresentation of authorship of noncopyrighted works (visual
or otherwise) would render these limitations superfluous. A
statutory interpretation that renders another statute superfluous
is of course to be avoided. E. g., Mackey v. Lanier
Collection Agency & Service, Inc., 486 U. S. 825 , 837, and
n. 11 (1988).

															Reading "origin" in § 43(a) to require attribution of
uncopyrighted materials would pose serious practical problems.
Without a copyrighted work as the basepoint, the word "origin" has
no discernable limits. A video of the MGM film Carmen Jones, after
its copyright has expired, would presumably require attribution not
just to MGM, but to Oscar Hammerstein II (who wrote the musical on
which the film was based), to Georges Bizet (who wrote the opera on
which the musical was based), and to Prosper Merimee (who wrote the
novel on which the opera was based). In many cases, figuring out
who is in the line of "origin" would be no simple task. Indeed, in
the present case it is far from clear that respondents have that
status. Neither SFM nor New Line had anything to do with the
production of the Crusade television series-they merely were
licensed to distribute the video version. While Fox might have a
claim to being in the line of origin, its involvement with the
creation of the television series was limited at best. Time, Inc.,
was the principal, if not the exclusive, creator, albeit under
arrangement with Fox. And of course it was neither Fox nor Time,
Inc., that shot the film used in the Crusade television series.
Rather, that footage came from the United States Army, Navy, and
Coast Guard, the British Ministry of Information and War Office,
the National Film Board of Canada, and unidentified "Newsreel Pool
Cameramen." If anyone has a claim to being the original creator of the material used in both the Crusade television series
and the Campaigns videotapes, it would be those groups, rather than
Fox. We do not 36 think the Lanham Act requires this search for the source of the
Nile and all its tributaries.

															Another practical difficulty of adopting a special definition of
"origin" for communicative products is that it places the
manufacturers of those products in a difficult position. On the one
hand, they would face Lanham Act liability for failing to
credit the creator of a work on which their lawful copies are
based; and on the other hand they could face Lanham Act liability
for crediting the creator if that should be regarded as
implying the creator's "sponsorship or approval" of the copy, 15 U.
S. C. § 1125(a)(1)(A). In this case, for example, if Dastar had
simply "copied [the television series] as Crusade in Europe and
sold it as Crusade in Europe," without changing the title or
packaging (including the original credits to Fox), it is hard to
have confidence in respondents' assurance that they "would not be
here on a Lanham Act cause of action," Tr. of Oral Arg. 35.

															Finally, reading § 43(a) of the Lanham Act as creating a cause
of action for, in effect, plagiarism-the use of otherwise
unprotected works and inventions without attribution-would be hard
to reconcile with our previous decisions. For example, in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U. S. 205 (2000), we considered whether productdesign trade dress can ever be
inherently distinctive. WalMart produced "knockoffs" of children's
clothes designed and manufactured by Samara Brothers, containing
only "minor modifications" of the original designs. Id., at
208. We concluded that the designs could not be protected under §
43(a) without a showing that they had acquired "secondary meaning,"
id., at 214, so that they" 'identify the source of the product
rather than the product itself,'" id., at 211 (quoting Inwood
Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S.
844, 851, n. 11 (1982)). This carefully considered limitation would
be entirely pointless if the "original" producer could turn around
and pursue a reverse-pas sing-off claim under exactly the same
provision of the Lanham Act. Sa- 37 mara would merely have had to argue that it was the "origin" of
the designs that Wal-Mart was selling as its own line. It was not,
because "origin of goods" in the Lanham Act referred to the
producer of the clothes, and not the producer of the (potentially)
copyrightable or patentable designs that the clothes embodied.

															Similarly under respondents' theory, the "origin of goods"
provision of § 43(a) would have supported the suit that we rejected
in Bonito Boats, 489 U. S. 141 , where the
defendants had used molds to duplicate the plaintiff's unpatented
boat hulls (apparently without crediting the plaintiff). And it
would have supported the suit we rejected in TrafFix, 532 U. S. 23 : The
plaintiff, whose patents on flexible road signs had expired, and
who could not prevail on a trade-dress claim under § 43(a) because
the features of the signs were functional, would have had a
reverse-pas sing-off claim for unattributed copying of his
design.

															In sum, reading the phrase "origin of goods" in the Lanham Act
in accordance with the Act's common-law foundations (which were not designed to protect originality or creativity), and in
light of the copyright and patent laws (which were), we
conclude that the phrase refers to the producer of the tangible
goods that are offered for sale, and not to the author of any idea,
concept, or communication embodied in those goods. Cf. 17 U. S. C.
§ 202 (distinguishing between a copyrighted work and "any material
object in which the work is embodied"). To hold otherwise would be
akin to finding that § 43(a) created a species of perpetual patent
and copyright, which Congress may not do. See Eldred v. Ash croft, 537
U. S. 186 , 208 (2003).

															The creative talent of the sort that lay behind the Campaigns
videos is not left without protection. The original film footage
used in the Crusade television series could have been copyrighted,
see 17 U. S. C. § 102(a)(6), as was copyrighted (as a compilation)
the Crusade television series, even though it included material
from the public domain, see 38 § l03(a). Had Fox renewed the copyright in the Crusade
television series, it would have had an easy claim of copyright
infringement. And respondents' contention that Campaigns infringes
Doubleday's copyright in General Eisenhower's book is still a live
question on remand. If, moreover, the producer of a video that
substantially copied the Crusade series were, in advertising or
promotion, to give purchasers the impression that the video was
quite different from that series, then one or more of the
respondents might have a cause of action-not for reverse passing
off under the "confusion ... as to the origin" provision of §
43(a)(1)(A), but for misrepresentation under the "misrepresents the
nature, characteristics [or] qualities" provision of § 43(a)(1)(B).
For merely saying it is the producer of the video, however, no
Lanham Act liability attaches to Dastar.

															***

															Because we conclude that Dastar was the "origin" of the products
it sold as its own, respondents cannot prevail on their Lanham Act
claim. We thus have no occasion to consider whether the Lanham Act
permitted an award of double petitioner's profits. The judgment of
the Court of Appeals for the Ninth Circuit is reversed, and the
case is remanded for further proceedings consistent with this
opinion.

															It is so ordered.

															JUSTICE BREYER took no part in the consideration or decision of
this case.

Summary: The Supreme Court ruled that Dastar Corp. did not violate the Lanham Act by selling copied versions of a television series that had entered the public domain, as the Lanham Act does not prevent the unaccredited copying of an uncopyrighted work. The Court held that the phrase "origin of goods" in the Lanham Act refers to the producer of tangible goods offered for sale, not the author or creator of the underlying work.