COPYRIGHT LAW 2003 Columbus School of Law The Catholic University of America Prof. Fischer Class 13 (FEB. 24, 2003)

GOALS FOR THIS CLASS Discuss quiz (model answer on website) Finish up transfer unit To learn about formalities (publication, notice, deposit, registration)

COMPARING Cohen and Boosey In Cohen, the 9th Circuit invoked the purposes that it saw as underlying federal copyright law to justify a narrow interpretation in favor of the licensor. In Boosey, the Second Circuit cast doubt on the Cohen approach, applying ‘neutral principles of contract interpretation rather than solicitude for either party.” Boosey approach effectively puts burden on licensor to include new media in license

Comparing Cohen and Boosey Cohen takes the approach that the scope of a license only includes rights that lie “within the unambiguous core meaning of the term”. Effectively favors licensor/author due to policy of Copyright Act. Boosey takes the approach that the language of the license is controlling and that the law should not favor either party.

New York Times v. Tasini Recent Supreme Court decision concerning clash between copyright owner of collective work and freelance author of a contribution to that collective work. What was the issue for the Supreme Court to decide?

New York Times v. Tasini Does s. 201(c ) protect publishers from infringing freelancers’ copyrights where publishers entered into agreements with database services (such as LEXIS/NEXIS to include freelancers’ articles in the databases without freelancers’ consent?

SECTION 201(c) Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

A Revision? Was the reproduction/distribution of the articles in the databases a “revision of the collective work”? In the view of Justice Ginsburg, author of the majority opinion (and, perhaps notably for her decision, mother of Professor Jane Ginsburg, author of your casebook)? In the view of Justice Stevens, author of the dissent? What do you think?

Policy Justice Ginsburg noted that there might be policy concerns in finding for the freelancers, as the publishers argued. What were these concerns and how does Justice Ginsburg address them? What does Justice Stevens have to say about these policy concerns?

Did the Freelancers Win the Battle But Lose the War? In Tasini a pyrrhic victory? Will publishers just force the freelancers to enter into assignments or work for hire agreements?

FORMALITIES PUBLICATION NOTICE DEPOSIT REGISTRATION

PUBLICATION AND NOTICE: 1909 Act 1909 Act – VERY strict requirements Publication was a central concept under 1909 Act. Publication was a requirement for statutory copyright protection, but copyright protection was not automatic on publication. You had to also comply with notice requirements – if you failed, work fell into public domain (a DIVESTIVE PUBLICATION)

LIBERALIZATION: 1976, Act liberalizes notice requirements - could cure omissions U.S. ratification of Berne Convention and consequent amendments to Copyright Act (effective March 1, 1989) further liberalized notice requirements: notice no longer required - though this is not retroactive which is why you have to understand 1909 Act rules.

PUBLICATION under 1909 Act What is publication?

WHAT IS PUBLICATION? 1909 Act did not define publication, but generally the date of publication was the earliest date when copies of the first authorized edition of the work placed on sale or publicly distributed by copyright owner or under his authority Some rather weirdly arbitrary limitations, e.g. a public performance of a spoken drama was not a publication: Ferris v. Frohman (1912)

LIMITED PUBLICATION What is a limited publication? Public Affairs v. Rickover (D.C. Cir. 1960)

LIMITED PUBLICATION What is a limited publication? – a publication that does not divest common law copyright Public Affairs v. Rickover (D.C. Cir. 1960) general publication only where go beyond customary sources of press or broadcasting in distributing addresses to any interested individual

ESTATE OF MARTIN LUTHER KING, JR. V. CBS, INC. (11th Cir. 1999) Facts? Issue?

GENERAL PUBLICATION Only in 2 situations: A. If tangible copies of work are distributed to general public in such a way as allows public to exercise dominion and control over work B. If exhibited or displayed so as to permit unrestricted copying by general public