The Future of Music Trademarks under Dastar

Trademarks on recordings are routinely used to ensure the accuracy of identifying information that music consumers may care about. Yet under the U.S. Supreme Court’s 2003 decision in Dastar Corp. v. Twentieth Century Fox Film Corp., the federal trademark statute is not concerned with the source of intangible content such as music (or pictures, literature, etc.). The relevant statutory provision’s reference to “origin of . . . goods,” the Court held, extends only to physical products. Lower courts have tended to read this case expansively. The upshot of these readings is that physical objects, not intangible ones like expressive works, are the only goods whose source matters in trademark law. Though courts almost certainly don’t intend this result, their reasoning requires the conclusion that accuracy over expression’s source is something that trademark law can’t police. This chapter provides a descriptive account of the disruption that these cases would create for music trademarks if their legal reasoning were taken seriously. Dastar would prevent recording artists and labels from using trademark law to manage how they designate themselves as the source of their primary product: recorded music. Recordings are simply not a relevant good for which a mark could ever indicate legally cognizable source to begin with. The chapter concludes by arguing that false advertising claims should be available to musicians, labels, and publishers to do what trademark law cannot — prevent competitors from falsely attributing authorship either to themselves or to others — whenever such factual statements of authorship are material to consumers