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Monday, December 15, 2008

Ninth Circuit Affirms Lower Court In Copyright Decision Involving Sculptures

The Ninth Circuit has affirmed a lower court ruling finding that defendants infringed plaintiffs' copyright in sculptures created in the early part of the twentieth century.

Whether the sculptures are protected by copyright turns on analyses of both the 1909 and the 1976 Copyright Acts.
...

The 1909 Act provided that an author was entitled to twenty-eight years of protection from the date he secured a copyright on a work, and that the copyright could, before the first twenty-eight-year period expired, be renewed for another twenty-eight-year term....
The Copyright Act of 1976 changed the basis of copyright protection from publication of a work to creation of a work....That change applies to works "created on or after January 1, 1978."... In making that change, Congress also provided copyright protection terms for works created before 1978. Currently, copyright law protects four types of works: (1) works created on or after January 1, 1978, ...(2) works copyrighted as of January 1, 1978,... (3) works "created before January 1, 1978, but not theretofore in the public domain or copyrighted,"...and (4) foreign works not in the public domain in their country but in the public domain, for enumerated reasons, in the United States....
Section 302 does not apply because the sculptures were created between 1913 and 1917. Neither does § 304, because the works were not copyrighted until 1984. Whether the sculptures are protected by §§ 303(a) or 104A turns on whether the sculptures passed into the public domain in the United States.
...
The copyright statute does not define the phrase "public domain." ... Under the 1909 Copyright Act, a work enters the public domain when it is published in the United States without copyright protection....
Publication in a foreign country affects whether the work is published without copyright protection, and thereby affects whether the work is in the public domain in the U.S. In Twin Books, this court held "that publication without a copyright notice in a foreign country [does] not put the work in the public domain in the United States."...
Although the Twin Books court found that the public domain question was "heatedly debated," ... the court held that "publication without a copyright notice in a foreign country did not put the work in the public domain in the United States."... In support of its conclusion, the court cited Supreme Court decisions holding "that United States copyright law should not be given extraterritorial effect." ...The court also adopted the holding in Heim v. Universal Pictures Co., 154 F.2d 480 (2d Cir. 1946), reading Heim to hold that "publication without a copyright notice in a foreign country did not put the work in the public domain in the United States." ...
The court then addressed whether the 1923 publication without notice in Germany commenced the term of U.S. copyright protection. Id. The court looked to the language of the 1909 Act to reject "the proposition that publication abroad without notice of copyright secures protection under the 1909 Copyright Act." ..As a result, between 1923 and 1926, the book was neither in the public domain, nor protected by copyright.... The court found that the copyright term commenced in 1926, when the book was republished in Germany with notice of copyright, and the 1954 renewal was timely. ...

Applying Twin Books, the sculptures in this case were not in the public domain. The sculptures were published in France as Renoir works in 1917. The sculptures were published as Renoir-Guino works in 1974, in an exhibition held in Paris. Neither party asserts that the sculptures were published with notice of U.S. copyright either in 1917 or 1974. Because those publications were in a foreign country and without notice of United States copyright, they "did not put the work in the public domain in the United States." ...

Furthermore, because the sculptures were never published with copyright notice, under Twin Books, the sculptures were not protected by copyright under the 1909 Act. ...For the years between 1917 and 1978, therefore, the sculptures were neither protected by copyright nor injected into the public domain....

An analysis under the 1976 Act is required to determine Societe's rights in the sculptures between 1978 and the time of its claim in 2003. The Copyright Restoration Act, 17 U.S.C. § 104A, permits restoration of copyright protection for foreign works that are not in the public domain in their home country but are in the public domain in the United States because of noncompliance with formalities imposed at any time by United States copyright law, including lack of proper notice. The sculptures would not be entitled to protection under this section because, pursuant to Twin Books, the sculptures have not passed into the public domain as required by § 104A(h)(6)(c) as they were published abroad without copyright notice. ...
Section 303(a) of the 1976 Act applies because the sculptures were "created before January 1, 1978, but not theretofore in the public domain or copyrighted." ...The sculptures were created between 1913 and 1917. Pursuant to Twin Books, the sculptures have not passed into the public domain, 83 F.3d at 1167, and were not protected by copyright after foreign publication without notice.... The sculptures were not copyrighted until 1984. Section 303(a) provides protection for the term provided by § 302, which is a term seventy years after the death of the last surviving author. Because Guino passed away in 1973, the sculptures are entitled to protection until 2043, which the district court properly held.

...

Defendants offer three reasons for their contention that Twin Books is distinguishable and therefore should not apply. None is persuasive.

First, Defendants argue that Twin Books should not apply here because there was no foreign publication with notice within a few years or while the 1909 Act was in effect. This distinction does not warrant a limited application of Twin Books. Nothing in Twin Books suggests that the republication of the work with notice was essential to its holding that foreign publication without notice did not trigger copyright protection.

...

Second, Defendants argue that Twin Books should not apply because of a possible conflict between certain Twin Books language and the copyright protection accorded to the sculptures. In Twin Books, the court stated:

the clear language of section 10 of the 1909 Act provides that an author  [*15] 'may secure copyright for his work by publication thereof with the notice of copyright required by this title.' There is absolutely no way to interpret that language to mean that an author may secure copyright protection for his work by publishing it without any notice of copyright.

83 F.3d at 1168. From this, Defendants conclude that Twin Books "does not stand for the proposition that works, which have never been published with a copyright notice, are protected by U.S. copyright law."

The language at issue, however, is not inconsistent with the application of Twin Books in this case. The district court did not grant copyright protection to a work that had only been published abroad without copyright notice. Instead, the district court's holding was entirely consistent with Twin Books because it held that from 1917 to 1978 (before the 1976 Act granted protection), the sculptures were neither protected by copyright nor placed in the public domain.

...

Third, Defendants argue that Twin Books should not be applied to this case because the sculptures were published before 1923, and the Bambi book was published in 1923.... Thus, their argument goes, this court should hold that pre-1923 publications abroad without notice triggered copyright protection, while constraining the Twin Books holding that publication abroad without notice did not trigger copyright protection to only post-1923 publications.

The year 1923 is significant because the 1976 Act, which became effective on January 1, 1978, and the 1998 Copyright Extension Act, operate together to create a bright line rule for which works are now in the public domain: works published before January 1, 1923, are generally in the public domain....However, a series of interim extensions passed before the 1976 Act extended a renewal term that would have expired between September 19, 1962, and December 31, 1976, to December 31, 1976.... Consequently, the 1976 Act grants works subject to the above interim extensions a nineteen-year extension of the renewal term from the time the twenty-eight year term would have expired, for a total of seventy-five years of protection....And although the 1998 Sonny Bono Copyright Term Extension Act extended the copyright in all subsisting works for another twenty years...it did not rescue any work from the public domain or recapture protection for that work... Thus, a work published before January 1, 1923, received, at most, protection for seventy-five years, such that after December 31, 1997, any work published before January 1, 1923, was in the public domain....Therefore, the argument goes, by the time of Defendants' alleged infringing activity in 2003, the sculptures had already entered the public domain in 1992, seventy-five years after the 1917 publication, and there could be no copyright infringement.

This difference in the dates of publication, however, is not enough to distinguish Twin Books on a principled basis. The Twin Books court did not raise the significance of the 1923 date. Nor did it cite the 1976 Act or its effect on works originally governed by the 1909 Act. The significance of the year 1923 in copyright is such that if the Twin Books court wanted to draw a distinction, it would have. The absence of such citations indicates that the Twin Books court did not intend to draw a line between works published before and after January 1, 1923. Whether the Twin Books court should have drawn a distinction is a matter more appropriately addressed en banc.

Furthermore, if this court were to agree with Defendants and distinguish Twin Books from this case, the court would be creating questionable law just to contain another arguably questionable law. By following Defendants' argument, this court would create a rule that treats works published abroad without notice before 1923 differently from those published after 1923, by finding that the former's copyright term began with publication, while the latter's, per Twin Books, did not....As explained above, it is true that, by operation of the 1976 and 1998 Acts, the copyright terms of a work published before 1923 and one published after 1923 may be different. But there is no basis to treat a work published abroad without notice in 1923 differently from one published in 1922 for purposes of when copyright protection begins.

The case is Societe Civile Succession Richard Guino v. Renoir, 2008 U.S. App. LEXIS 24755. Read the entire ruling here.

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