Stepmother, May I?: Moral Rights, Dastar,and the False Advertising Prong ofLanham Act Section 43(a)

I. Introduction[A] divorced mother . . . is raising her two daughters alone after her husband . . . left her for [a] fashion model . . . and is doing quite well, thank you. But not five minutes into the film, her abdominal pains are diagnosed as a fast-growing cancer, and she's told she only has a few months to live. What choice does she have but to take [the model] under her wing and teach her how to be a real mom? . . . [A]fter a rocky start, the two women learn to love and respect each other. The girls learn to love and respect their stepmom. Everyone hugs and cries a lot.1Many of the millions of viewers who contributed to the $160 million grossed by the movie Stepmom2 might readily identify the foregoing as a plot summary of that 1998 Julia Roberts vehicle.3 But they would be wrong. In fact, the quoted summary describes a 1995 made-for-TV movie entitled The Other Woman.4 The confusion, however, would be understandable, at least to Nancey Silvers, screenwriter of The Other Woman, who believed the two films were so similar that she sued the producers of Stepmom for copyright infringement.5Before filing suit, however, Silvers faced a hurdle that stands in the way of many authors who might wish to protect their interests in their work: Under U.S. copyright law, she had no legal interest in The Other Woman.6 Although Silvers created the film's entire story, the "author" of The Other Woman, according to the Copyright Act of 1976, was the production company that hired her to write the screenplay, Frank & Bob Films II (Frank & Bob Films).7 And because the legal interests-the "exclusive rights"-protected by U.S. copyright law accrue only to statutory authors and their assigns, Silvers owned no infringeable right.8 If Stepmom was infringing, the rights affected belonged to Frank & Bob Films.To remedy this deficiency, caused by her screenplay's status as a "work-for-hire," Silvers sought and obtained an unusual assignment from Frank & Bob Films:Frank & Bob Films retained ownership of the underlying copyright to The Other Woman script, but assigned to Silvers "all right, title and interest in and to any claims and causes of action against Sony Pictures Entertainment, Inc. . . . and any other appropriate persons or entities, with respect to the screenplay The Other Woman ... and the motion picture Siepmom."9Thus, Silvers procured ownership, not of the underlying copyright or any of its exclusive rights, but rather of Frank & Bob Films's right to sue for Stepmom's infringement of The Other Woman. In Silvers v. Sony Pictures Entertainment, Inc.,10 Silvers exercised this right by suing Sony for copyright infringement, "alleging that the movie Stepmom was substantially similar to the script for The Other Woman."11Sony responded to Silvers's lawsuit with a motion to dismiss, arguing that, without any ownership in the underlying copyright, Silvers lacked standing to sue for infringement of the copyright.12 Sony grounded its argument in the language of section 501(b) of the Copyright Act, which provides that "[t]he legal or beneficial owner of an exclusive right under a copyright is entitled. . . to institute an action for any infringement of that particular right committed while he or she is the owner of it."13 Under Sony's narrow interpretation of this provision, which would limit standing to sue for infringement to only the owners of exclusive rights, Silvers would not have standing because the right to sue for infringement is not one of the Act's exclusive rights.14Silvers argued for a more inclusive reading of Section 501(b), citing the Fifth Circuit's decision in Prather v. Neva Paperbacks, Inc.15 as recognizing "the effectiveness of an assignment of accrued causes of action for copyright infringement."16 In support, Silvers pointed out that Nimmer on Copyright relied on Prather for the proposition that an "assignee of an accrued infringement cause of action has standing to sue . …