International News Service v. Associated Press (1918)
The Birth of the Misappropriation Doctrine
In International News Service v. Associated Press, the Supreme Court confronted a competitive practice that, while not involving traditional trademark infringement or copyright violation, struck the Court as fundamentally unfair. INS and AP were rival news organizations. INS routinely copied news stories gathered and published by AP, rewrote them, and distributed them to its own subscribers as if the news were its own product. The underlying facts themselves were not copyrightable once published, yet INS’s conduct threatened to undermine AP’s investment in news gathering.
The Court framed the dispute not as a matter of copyright ownership, but as one of unfair competition. While acknowledging that the public was free to read and repeat the news, the Court held that a competitor could not systematically appropriate time-sensitive news gathered at great expense and sell it in direct competition with the originator. The Court described this conduct as misappropriation of “quasi-property” interests existing between competitors, even though no absolute property right existed as against the public at large.
The Quasi-Property Theory
Central to the Court’s reasoning was the notion that certain commercial interests deserve limited protection in competitive markets. The Court emphasized that the protection it recognized was narrow and temporal, lasting only so long as the news retained its commercial value. The misappropriation doctrine thus emerged as a judicial effort to balance free competition with fairness, preventing one party from reaping where it had not sown in circumstances where such conduct would destroy the incentive to invest.
Although controversial from the outset, INS v. AP became a cornerstone of unfair competition law and continues to influence state-law misappropriation claims, particularly in jurisdictions such as New York.
Dastar Corp. v. Twentieth Century Fox Film Corp. (2003)
The Supreme Court Draws a Line
More than eight decades later, the Supreme Court revisited similar themes in Dastar Corp. v. Twentieth Century Fox Film Corp., but reached a very different conclusion. In Dastar, the defendant copied and repackaged a television series originally produced by Fox, the copyright for which had expired, and sold it under its own name without attribution to Fox.
Fox argued that Dastar’s conduct constituted “reverse passing off” under Section 43(a) of the Lanham Act because consumers were misled as to the true origin of the creative work. The case squarely presented the question of whether trademark law could be used to police attribution and originality once copyright protection had lapsed.
The Meaning of “Origin of Goods” Under the Lanham Act
The Supreme Court rejected Fox’s theory. Writing for a unanimous Court, Justice Scalia held that the term “origin of goods” in the Lanham Act refers to the producer of the tangible goods sold in the marketplace, not the author of the underlying creative content. Allowing trademark law to require attribution for creative works would, in the Court’s view, create a species of perpetual copyright, undermining the carefully calibrated balance established by federal copyright law.
The Court explicitly cautioned against using trademark law as a backdoor to extend expired intellectual property rights. In doing so, it sharply limited the ability of plaintiffs to rely on unfair competition theories grounded in misappropriation when federal IP regimes already occupied the field.
INS and Dastar in Tension
From Expansion to Retrenchment
Viewed together, INS v. AP and Dastar represent two poles of judicial thinking. INS reflects an era in which courts were more willing to create common-law doctrines to address perceived unfairness in competitive markets. Dastar, by contrast, reflects modern judicial restraint and a strong emphasis on statutory boundaries, particularly where Congress has spoken comprehensively through copyright and trademark law.
While INS recognized quasi-property rights between competitors to protect investment and incentive, Dastar rejected the idea that trademark law could be used to protect creative attribution or originality once copyright protection ends. The latter decision signals a clear preference for bright-line rules that prevent overlap and conflict between distinct IP regimes.
Practical Implications for Businesses and Brand Owners
These decisions carry important lessons for modern businesses. Investment in information, content, or creativity does not automatically confer exclusive rights absent statutory protection. While state-law misappropriation claims may still exist in narrow circumstances, particularly for time-sensitive information, they operate in the shadow of federal preemption and judicial skepticism. Conversely, trademark law remains focused on source identification in commerce, not on rewarding creative effort or enforcing moral rights of attribution.
Companies seeking to protect competitive advantages must therefore rely on appropriate tools: contracts, trade secret law, timely copyright registration, and clear branding strategies, rather than expansive theories of unfair competition that courts are increasingly unwilling to endorse.
Defining the Limits of Unfair Competition
International News Service v. Associated Press and Dastar Corp. v. Twentieth Century Fox Film Corp. together define the rise and fall of judicially expansive misappropriation theories in U.S. law. Where INS sought to preserve fairness by recognizing quasi-property interests between competitors, Dastar reaffirmed that intellectual property rights are creatures of statute with defined limits that courts may not extend.
At Franco’s Law, we help clients navigate these boundaries with a clear understanding of how unfair competition, trademark law, and copyright law intersect — and where they must remain separate. Understanding these landmark cases is essential to building enforceable strategies that protect value without overreaching beyond the law’s limits.
This article is for informational purposes only and does not constitute legal advice.