COPYRIGHTS - R. Tushnet on misinterpretations of SCOTUS' Dastar opinion

Concerning the line between copyright protection and state and Lanham Act protections, section breaks added for clarity. Original post here.

...[T]he magistrate said that this case involved “reverse passing off,” which occurs when a “producer misrepresents someone else’s goods or services as his own.” Dastar.

Comment: No! No, this case does not involve that! Origin of designs (as in, copyrightable material) is not origin of goods or services, or Dastar would have come out the other way!   

The magistrate found that Fergon had properly pled that it was the “origin” of the home designs depicted in Oakley’s promotional materials, “because although it did not construct the homes, it conceived of the architectural designs and it owns the copyrights in the designs.”  (Aaaargh.  This is the exact same claim Fox had, that it was the “source” of the expression, even though Dastar made the copies at issue.)  Fergon also alleged that Oakley took credit for the designs by “touting its architectural and design prowess” and stating that it has “mastered the process of taking a custom home from idea to reality,” all while featuring homes designed by Fergon. And it alleged that consumers were likely to be confused, and that it was harmed.

 Previously:

USAA case. (W.D. Tex.)

"Worst misunderstanding of the year [2013]" case from E.D. Mich.

NIPPON Steel v. Posco (D. N.J.) here.