Failure erases protection cases classed under “spiritual interest” which cause legally codified discriminatory infringement suits.

As is true of judicial applications of copyright law, courts render section 43(a) determinations quite apart from any consideration of the authorial interests at stake when the right of attribution is at issue. Indeed, one court has expressly declared that the Lanham Act does not create a duty of attribution. [FN200] The foregoing discussion demonstrates that plaintiffs attempting to obtain a remedy for reverse passing off are disserved through their forced reliance on section 43(a) to redress violations that should properly be addressed within the scope of an independent right of attribution. Because the requirements for proving a case under section 43(a) are shaped largely by that doctrine's focus on preventing consumer deception, [FN201] courts become preoccupied with different manifestations of "falsity" at the expense of an author's personality and reputational interests. [FN202] An attribution violation harms the author's spirit, and the damage to the author's spiritual interest is the primary focus of the right of attribution. [FN203] As the law currently stands, this spiritual interest is capable of protection only when damage to consumers is present. [FN204] Even those courts that do find in favor of a plaintiff author based on a section 43(a) *1021 violation recognize and safeguard the underlying damage to the author's spirit as a secondary concern--the primary focus always is on whether consumers are deceived through the defendant's false representations. [FN205] As a result of this flawed doctrinal fit between section 43(a) and reverse passing off, only those plaintiffs who are successful in demonstrating a certain type of misrepresentation [FN206] or consumer confusion [FN207] will prevail. [FN208] It is possible to unpack even more completely the ways in which section 43(a)'s requirements of misrepresentation or consumer confusion effectively preclude the assertion of a right of attribution in many instances. Part I.B of this Article discussed four scenarios in which authors were left with inadequate protection for their attribution interests under copyright law. [FN209] By virtue of the theoretical disconnect between the right of attribution and section 43(a), certain situations also arise in which a plaintiff author will not be able to invoke section 43(a) to protect her attribution interest. Initially, it is important to note that a finding of consumer confusion requires the existence of distinct, recognizable subject matter. Although the Lanham Act is clear that section 43(a) does not require a registered trademark, courts invoke the same standards in determining consumer confusion under section 43(a) that they do for determining whether consumers are confused by a defendant's infringement of a plaintiff's federally registered trademark. [FN210] Nevertheless, section 43(a) protects only "qualifying unregistered" subject matter, and "the general principles *1022 qualifying a mark for registration under section 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under section 43(a)." [FN211] To "qualify" for such protection, a mark must be either "inherently distinctive" or have acquired distinctiveness through secondary meaning. [FN212] If a plaintiff author's work is not sufficiently well-known to trigger public recognition, it is questionable whether a plaintiff's act of "reverse passing off" will spark the necessary confusion on the part of the consuming public to support relief under section 43(a). Some courts have alleviated this particular concern by refusing to apply the requirements of "distinctiveness" or "secondary meaning" in reverse passing off cases. [FN213] The theory underlying these decisions appears to be that in a reverse passing off case, the very existence of the reverse passing off precludes the true author from developing the consumer association between herself and her work. [FN214] As these cases illustrate, courts applying section 43(a) to protect an attribution interest are forced to manipulate the existing commercially based section 43(a) doctrine so that it can be applied to remedy situations where a significant harm to the plaintiff is personal rather than economic. [FN215] Partial designations of attribution also can preclude an author from successfully relying on section 43(a) to protect her attribution interest. The situation in Qimron v. Shanks is illustrative of this problem. As discussed in Part IA, in that case the defendant Shanks published the deciphered reconstructed text of one of the Dead Sea Scrolls and attributed authorship to a particular professor working "with a *1023 colleague." [FN216] Technically, this situation does not give rise to a "false designation of origin" under section 43(a) because the defendant's representation was not untrue. [FN217] According to one commentator, the essence of a section 43(a) offense is absent under these circumstances because Shanks "fooled no one into thinking that one individual deserved full credit for a work in fact authored by two." [FN218] Instead, Shanks "honestly apprised the world that [the work] . . . had two fathers, although he listed only one by name." [FN219] Moreover, the argument has been made that Shanks' omission of plaintiff's name would not give rise to consumer confusion because most purchasers of Shanks' work would have been aware of Professor Qimron's role, and therefore the defendant's omission would not have subjected him to any "sensible diminution of his publicity or notoriety." [FN220] The facts of Qimron illustrate the disconnect between the attribution interest and section 43(a). Had the case been litigated under American law, it is probable that the plaintiff would have invoked section 43(a) in light of the absence of other alternatives upon which to base an attribution violation. Precedent does exist in this country for concluding that the failure to mention all joint authors to a project can give rise to liability under section 43(a), although those cases involve a complete omission rather than a partially oblique reference to an author's identity. [FN221] Nevertheless, regardless of whether the oblique reference to Professor Qimron was a sufficient mentioning to escape liability under *1024 section 43(a), the critical point is that both complete omissions, as well as oblique partial references, violate the inherent right of an author to be recognized as the source of her works. Whether the defendant's incomplete representations are technically true, or whether they will foster consumer confusion in the marketplace, is irrelevant to whether the defendant has failed to recognize the plaintiff's attribution interest. [FN222] The interface between section 43(a) and contract law raises yet another obstacle for authors attempting to vindicate their attribution interests through reliance on section 43(a). Cleary v. News Corp. [FN223] is illustrative of this conflict. In that case, the plaintiff author sued the publisher of Robert' s Rules of Order for omitting his name on the title page of a revised edition. In arguing that the publisher's conduct constituted reverse passing off under section 43(a), the plaintiff advanced the argument that "the Lanham Act protects an author against an inaccurate designation of authorship despite the fact that the author expressly contracted away the right of attribution" through a work for hire agreement. [FN224] Ultimately, the court did not decide this particular issue in light of its holding that even if the plaintiff did not relinquish his right to attribution, his right was not violated under the facts of the case. [FN225] Although Cleary illustrates the problem, rather than the solution, to the conflict between section 43(a) and contract law, district courts in other circuits have concluded that actions under section 43(a) cannot be brought when a contractual provision authorizes the defendant's conduct. [FN226] This interface between section 43(a) and contract law underscores the need for an explicit and non-waivable right of attribution, a point discussed further in the next part. [FN227]