Attribution blocks the counterplan.

THE CASE FOR AN INDEPENDENT RIGHT OF ATTRIBUTION The discussion in the foregoing parts of this Article focuses on the applicable case law in the areas of both copyright and section 43(a), and demonstrates the inherent difficulties with applying both the copyright and section 43(a) models to safeguard the interests protected by the right of attribution. An author can be deprived of attribution in a variety of circumstances even though no copyright or section 43(a) violations exist. Based on the foregoing analysis, it is clear that the authorial interests that are the focus of the right of attribution are protected only coincidentally through the invocation of alternate legal theories. Thus, if the United States truly is concerned with protecting authorial interests, it must contemplate enacting an explicit right of attribution. In many of the cases discussed in the foregoing parts, plaintiffs asserted both copyright infringement and section 43(a) causes of action. Batiste v. Island Records, Inc., [FN228] discussed in Part IB, is illustrative. There, the plaintiff songwriters could not prevail on their copyright claim because of the existence of a valid copyright assignment, and the defendant had secured the permission of the assignee prior to the release of the infringing album. [FN229] The plaintiffs in that case also raised a section 43(a) claim, based on the defendant's conduct of digitally sampling the plaintiffs' song and including it in the album, without attributing co-authorship of the defendant's song to all three plaintiffs. [FN230] The Fifth Circuit denied the application of section 43(a) as a means of enforcing the attribution interest in this instance because there was no evidence that consumers were confused or deceived by either the *1026 defendant's use of plaintiff's work or the incomplete authorship attribution. [FN231] The court further observed that the plaintiffs' claim that two of the brothers were improperly excluded from the liner notes accompanying the defendant's album also failed to suggest consumer confusion, especially because the liner notes did credit the band in which the omitted brothers performed. [FN232] The law's failure to provide authors with a right of attribution independent of both copyright infringement and section 43(a) is tellingly illustrated by the facts of Batiste. Copyright law in this country safeguards economic interests, rather than the authorial interests protected by the right of attribution. Section 43(a) of the Lanham Act can be used to safeguard the right of attribution in reverse passing off cases only where the court is satisfied that consumer confusion exists. Yet, consumer confusion is a concept totally unrelated to the authorial interests violated by a defendant's failure to attribute authorship. The Batiste court frames the attribution inquiry improperly because it is forced to determine attribution rights within legal frameworks ill-suited for the application of this important right. Whether consumers are confused by the defendant's actions, or whether the defendant has violated the plaintiff's economically based copyrights, are separate inquiries from whether the defendant has failed to attribute authorship of a work to someone entitled to such attribution. Moreover, the question whether the defendant's actual attribution in the liner notes would satisfy an independent right of attribution is a separate issue relating to the appropriate scope of the right of attribution. [FN233] In light of the current status of the law, this is not an issue the Batiste court even could address. Clearly, the crafting and application of an independent right of attribution can only be tackled by Congress or the judiciary, once the need for such an explicit right is accepted. Legal commentators often manifest skepticism regarding the benefits for the American legal system of adopting moral rights. [FN234] Of particular concern is the perceived conflict between adequate moral rights protection and the first amendment freedoms of authors desiring to build *1027 upon, and interpret, the creative works of others. [FN235] Moreover, powerful entertainment and publishing industries fear that their commercial practices may be disturbed if the United States were to adopt legislation more protective of authorial interests. [FN236] Notwithstanding these concerns, I have argued elsewhere that the United States' legal system is woefully inadequate in its protections of authors' interests, and that a comprehensive moral rights package is necessary to validate and safeguard authors' personality and spiritually based interests. [FN237]