08A foreign works
Where to Look in the Law
1909 Act: §§8, 21, 22, 31
1947 Act: §§9, 22, 23, 107
1976 Act: §§104(b), 104A, 304, 902(a)(1)(A), 914, 1311
CFR: § 202.12 Restored copyrights;
§ 201.31 Procedures for copyright restoration in the United States for certain motion pictures and their contents in accordance with the North American Free Trade Agreement;
§ 201.33 Procedures for filing Notices of Intent to Enforce a restored copyright under the Uruguay Round Agreements Act;
§ 201.34 Procedures for filing Correction Notices of Intent to Enforce a Copyright Restored under the Uruguay Round Agreements Act
Copyright Office Publications for Laymen
Circular 38b “Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA-GATT)”
“December 8, 1994[:] Uruguay Round Agreements Act restored copyright to certain foreign works under protection in the source country but in the public domain in the United States.” (Information Circular 1a)
“Copyrights in certain foreign works whose U.S. copyright protection had been lost because of noncompliance with formalities of U.S. law were restored as of January 1, 1996, under the provisions of the Uruguay Round Agreements Act (URAA). Such works may be registered using Form GATT.” (Information Circular 15a)
“The Uruguay Round Agreements Act of 1994 (URAA) (PL 103-465) modified the effect of publication without notice for certain foreign works. Under this Act, copyright is automatically restored, effective January 1, 1996, for certain foreign works placed into the public domain because of lack of proper notice or noncompliance with other legal requirements. Although restoration is automatic, if the copyright owner wishes to enforce rights against reliance parties (those who, relying on the public domain status of a work, were already using the work before the URAA was enacted), he/she must either file with the Copyright Office a Notice of Intent to Enforce the restored copyright or serve such a notice on the reliance party.” (Information Circular 3)
“Copyright in eligible works was restored [sic] January 1, 1996. To be eligible, the work must meet all the following requirements:
“* At the time the work was created, at least one author (or rightholder in the case of a sound recording) must have been a national or domiciliary of an eligible country. An eligible country is a country, other than the United States, that is a member of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), is a member of the World Trade Organization (WTO), or is subject to a presidential proclamation that extends restored copyright protection to that country on the basis of reciprocal treatment to the works of U.S. nationals or domiciliaries;
“* The work is not in the public domain in its source country through expiration of the term of protection;
“* The work is in the public domain in the United States because the work did not comply with formalities imposed at any time by the U.S. law, the work lacked subject matter protection in the United States in the case of sound recordings fixed before February 15, 1972, or the work lacked national eligibility in the United States; and
“* If published, the work must have first been published in an eligible country and must not have been published in the United States during the 30-day period following its first publication in that eligible country.” (Information Circular 38b)
Reliance parties: “Subsection (d)(3) of the amended section 104A of the Copyright Act contains special rules with respect to certain derivative works created before December 8,1994, based on underlying restored works, such as the translation of a restored work or a motion picture based on a restored book or a play. Such derivative works may continue to be exploited by a reliance party, if the reliance party pays the owner of the restored copyright reasonable compensation.” (Information Circular 38b)
What the Courts Ruled
Wall vs Gordon and others
N.Y.Com.Pl. (March 1872) ¤ Abb.Prac.,N.S. 349
Wall and Hunt, both of London, composed a song called “When the Band Begins to Play” in February 1870. Hunt transferred his interest to Wall on May 19, 1870. Prior to August 9, 1871, sheet music was printed. Instructions were given dealers not to sell any before September 11, 1871, so that Wall could secure a U.S. copyright, which he did September 9, 1871. An unauthorized U.S. publication occurred early September 1871 from copies which had been sold (or otherwise entered circulation) in London.
Failure of the claimants to prevent early U.K. distribution “constituted a complete dedication to the public”, according to the U.S. court which heard the case of the unauthorized U.S. publication. The court noted that Wall hadn’t revoked his sale authorizations in London and that he still expected an accounting.
Italian Book Co. vs Cardilli
D.C.,S.D.N.Y. (9-28-1918) ¤ 273 F. 619
Song lyrics were written in Italy, and another Italian furnished the music. The work was published in Naples, Italy, in 1913, and copyrighted according to the laws of Italy. The Italian proprietor sold the song to an American (the plaintiff) in 1917, and he (the plaintiff) copyrighted the words and music December 10, 1917, giving the date of original publication as September 1, 1913. The defendant copied the words and music thereafter. The U.S. law was silent on whether publication in Italy prevented an American copyright four years after the Italian registration. The American proprietor was not prohibited from filing, yet as there had been no U.S. publication prior to 1917, this was not a case of “publication without copyrighting destroy[ing] the rights of subsequent copyright.”
American Code Co. vs Bensinger et al
C.C.A.,N.Y. (6-23-1922) ¤ 282 F. 829.
“[A]n American publisher of the piratical production [his reproduction of a work copyrighted in a foreign country] can not secure the fruits of his piracy by taking out a [second, American] copyright”.
A summary of this case is under new and derivative versions of a work in the public domain.
Tamas vs Twentieth Century-Fox Film Corporation
NY Supreme Court (2-10-1941) ¤ 48 USPQ 573
“[T]he failure of plaintiff to secure copyright protection in the United States is conclusive evidence of his abandonment of his common-law rights, and makes his story public property in this country, even though he had obtained a copyright in Yugoslavia.”
The case as a whole was decided against the plaintiff because he sought a judgment for plagiarism although his idea for a movie about a “Stowaway” (which was his title) had mere “accidental similarity” to the same-titled movie made by Twentieth Century-Fox starring Shirley Temple.
Shostakovich et al vs Twentieth Century-Fox Film Corporation
Supreme Court, N.Y. Co. (6-7-1948) ¤ 80 N.Y.S. 2d 575
Fox’s movie The Iron Curtain credits the music in it to Dmitry Shostakovich, Serge Prokofieff, Aram Khachaturian, Nicholai Miashovsky, all of whom were Soviet citizens. “All the music, it is conceded, for the purposes of this motion, is in the public domain and enjoys no copyright protection whatever.” The United States at the time did not recognize copyrights taken out in the Soviet Union. Composer Shostakovich sought to enjoin “the use of their names and music in the picture and in any advertising or publicity matter relating to it.” The Court found precedent to deny his request: “The lack of copyright protection has long been held to permit others to use the names of authors in copying, publishing or compiling their works. Clemens v. Belford Clark & Co., C.C., 14 F. 728.” (The decision went on to discuss the issue of the composers’ moral rights and the composers’ disagreement with the ideology of the movie, which concerns Soviet espionage.)
Bela George Lugosi, et al vs Universal Pictures
Supreme Court of Calif. (12-3-1979) ¤ 603 F.2d 425
“Bram Stoker’s 1897 novel Dracula has always been in the public domain in the United States. [footnote:] Stoker failed to comply with the United States deposit requirements in effect in 1897. In England and other countries adhering to the Berne Convention the novel passed into the public domain in April 1962.”
(The above remark is made in passing within a decision on whether the son of the well-known actor who made his reputation playing “Dracula,” could assert rights in his father’s likeness which were already being exploited by the studio for whom the actor had appeared as “Dracula.” (read more) The quoted passage has no bearing on the outcome of the case.)
Cases Summarized in Other Sections |
| International Film Exchange, Ltd., et al. [including Brandon Films and Films Incorporated] vs Corinth Films, Inc., et al. [including Richard Feiner and Company, Inc.] (launch this) decided complications over American rights to the classic Italian film The Bicycle Thief (1948) resulting from an authorized derivative version and the standard version being licensed to different firms. Twin Books Corporation vs The Walt Disney Company, Buena Vista Home Video, Inc., and Buena Vista Pictures Distribution, Inc. (launch this) ruled on Bambi, which was first published in Germany in 1923 without a copyright notice, but not registered for American copyright in 1927, with itsfirst publication with copyright notice occurring in 1926; the parties of the lawsuit disputed whether copyright renewal based on the 1926 was valid. United Dictionary Co. vs G & C Merriam Co. (launch this) reached the Supreme Court, which decided whether the omission of notice of American copyright of a British book on copies sold in England destroyed the American copyright. Norden vs Oliver Ditson Co. (launch this) concerns an adaptation by an American of Russian music not protected by copyright. Ferris vs Frohman (launch this) concerned a British play that would be regarded as abandoned under British law but not under American law. American Code Co. vs Bensinger et al (launch this) was a suit between two American publishers who each offered a version of the same British book. George Barris vs Richard Hamilton [et al] (launch this) concerns photographs of Marilyn Monroe shot by an American but first published in England; copyright status in the United States depended on whether the term of American copyright is measured from the first British publication (1962) or the first American publication (1986). |
