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17B Copyright Office publications are not definitive
The decision reached by the lower case which heard this case (which concerned whether classical-music composer Bela Bartok’s Concerto for Orchestra was a posthumous work given that the composer contracted to publish the work during his lifetime although he did not live to see its publication) was reversed by the Appeals Court owing to the different interpretations of the word “posthumous” applied by the two courts.
The Appeals Court decision notes that the lower-court judge had relied on the definition of “posthumous” on the Register of Copyrights Form (Circular 1B), “yet the Copyright Office has no authority to give opinions or define legal terms and its interpretation on an issue never before decided should not be given controlling weight.”
(A thorough summary of this case is under renewal term: rights of widows, widowers and next-of-kin.)
Cases Summarized in Other Sections
|Palladium Music, Inc vs EatSleepMusic, Inc. (launch this) had an appellant arguing that he was not an infringer on the basis of legal information given in a Copyright Office circular. Not only don’t Copyright Office laymen publications have priority in law, but the appellant misinterpreted the circular!|
“The circulars provided by the Copyright Office are intended simply to aid the public in understanding copyright law. See Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1242 n.38 (3d Cir. 1986) (‘Copyright Office circulars are not technical documents, but are “intended to present simple explanations of the law,” for lay persons.’).”
— Statement made (unrelated to the matter being decided) in the decision for Palladium Music, Inc v. EatSleepMusic, Inc., USCA, 10th Cir. (2-14-2005), 398 F.3d 1193; 73 U.S.P.Q.2D (BNA) 1743; CCH 28,955
As an indication of how the Copyright Office publications can be suspect, consider the following quotation, which details an aspect of the deposit and registrations procedures of Title 17, sections 407 and 408: “To satisfy requirements for both, the following must be sent in one package to the Register of Copyrights: (1) mandatory deposit copies, (2) a completed application for registration, and (3) a $30 nonrefundable filing fee payable to the Register of Copyrights.” (Information Circular 7d) EDITOR’S NOTE: If the above is taken literally, those of us who walk into the Copyright Office building with our copyright applications, payments and deposits, and who then personally hand these to the clerk, have failed the “must” in the above quotation. Title 17 itself makes no such restriction on how the items are to be brought to the Copyright Office staff.
Despite the above gaffe, I continue to believe that Copyright Office circulars for the layman are worthy sources of information for people who don’t care to wade through the technical writing in the statutes. I have not knowingly placed any excerpts within the yellow “Copyright Office Publications for Laymen” boxes that I know to contain errors.
The Copyright Registration and Renewal Information Chart and Web Site
© 2007 David P. Hayes