Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.
This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both § 43 of the Lanham Act and the right of publicity. Finally, it will hail the Supreme Court's decision in Dastar as a hopeful sign that the Court will reject the approach of the more expansive cases that have hampered the free use of works in the public domain.
Thoughts on Dastar from a Copyright Perspective: A Welcome Step toward Respite for the Public Domain, 11 U. Balt. Intell. Prop. L.J. 71 (2002-2003)