copyright fall 2008 formalities i. review of termination siegel v. warner bros. entertainment, inc....

COPYRIGHT FALL 2008

Formalities I

REVIEW OF TERMINATION

• Siegel v. Warner Bros. Entertainment, Inc. (C.D. Cal. 2008)

Formalities

• U.S. very stringent pre 1976 Act (effective 1/1/1978) and 1988 BCIA (came into effect 3/1/1989)

• What are the pros and cons of strict formalities such as notice, registration, and recordation?

Formalities• Publication with notice: dividing line between

common-law protection on the one hand, and either statutory or no protection on the other

• S. 10 1909 Act: “Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title.”

• Term of copyright measured from date of first publication s. 24

• divestive and investive publication – what is the difference?

1909 Act: PUBLICATION

• 1909 Act did not define publication• Case law determined when publication had

taken place. Many weirdly arbitrary distinctions emerged.

Ferris v. Frohman (1912)

• Pre-1909 statute – public performance of spoken drama was not a publication

• Applied by analogy to exhibition of motion picture, public performance of musical composition, oral delivery of lecture or address

1909 Act: PUBLICATION

• Was sale of records publication of a musical or literary work under old law?

1909 Act: PUBLICATION• Was sale of records publication of a musical or

literary work under old law? Until La Cienega Music v. ZZ Top (9th Cir. 1995) distribution of phonorecords (sale of records) was held not to be a divestive publication. La Cienega held otherwise. As a result of that ruling, Congress added section 303(b) to the 1976 Act by amendment to overrule La Cienega: “The distribution before Jan 1, 1978 of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein.”

Notice Requirement

• Section 10 1909 Act Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States.”

Form of Notice under 1909 Act

• What form did notice have to take under the 1909 Act.

Form of Notice under 1909 Act

• Section 19 1909 Act – the word “copyright” or abbreviation or the copyright symbol, the name of the copyright proprietor, and the year of publication. Also mandated location of the notice.

• What if the notice did not comply with form and location requirements?

• What if it was omitted altogether? Effect of s. 21

Estate of Martin Luther King, Jr. Inc. v. CBS, Inc. (11th Cir. 1999)

• Appeal against grant of CBS motion for summary judgment

• Did 11th Circuit agree with district court that the performance of Dr King’s I Have a Dream speech before a huge audience, where the speech was broadcast live and distributed to the news media who reported it widely, could only be seen as a divestive general publication?

• Why or why not?

ACADEMY OF MOTION PICTURE ARTS & SCIENCES V. CREATIVE

HOUSE PROMOTIONS, INC. (9th Cir. 1991

• Was distribution of Oscar statues without copyright notice prior to 1941 a general publication?

• Why or why not?• NOTE THE

COPYRIGHT NOTICE ON THIS MORE MODERN OSCAR!

PUBLICATION UNDER 1976 ACT

• NOW THERE IS A DEFINITION• Why do we still care about publication now

that copyright arises from “creation” of works?

• What does this say about distribution of photograph records after 1/1/78?

Publication: Section 101

• The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public performance or display of a work does not itself constitute publication.

WHY DOES PUBLICATION MATTER NOW?

WHY DOES PUBLICATION MATTER NOW?

• Examples: • Section 107 (fair use)• Section 108 (library exemptions)• Section 302(c) and (e) duration of protection for

anonymous/pseudonymous/works for hire• Section 303 (duration for unpublished works)• Section 407 (mandatory deposit for published

works)

CHANGES TO NOTICE REQUIREMENTS IN 1976 ACT

(PRE-BERNE)• Prior to Berne (ie copies distributed

between 1978 and February 1989) could you omit copyright notice and not lose copyright protection for the work?

• What provision(s) of the Copyright Act is relevant?

• What if you made mistakes in the notice?

EFFECT OF OMISSION • 405(a)(1) no divesting effect if notice omitted from a

relatively small number of copies or phonorecords• 405(a)(2) of the Copyright Act provides that an omission

of copyright notice is excused if: registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered ...(this probably doesn’t apply if deliberate omission)

BERNE CHANGES NOTICE REQUIREMENTS

• The Berne-implementation amendments changed the 1976 Act to eliminate copyright notice as a precondition to copyright protection.

• To what works do the Berne amendments apply?

BERNE CHANGES NOTICE REQUIREMENTS

• The Berne-implementation amendments changed the 1976 Act to eliminate copyright notice as a precondition to copyright protection.

• To what works do the Berne amendments apply? Works first published on or after March 1, 1989

NOTICE AFTER BERNE

• If you want to put a copyright notice on a work what must it consist of?

• Where should you put the notice?• Do you have to put notice on?• How about for phonorecords?• What incentives are there in the law to

include a copyright notice?