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10E underlying copyright: unpublished work

Where to Look in the Law

1909 Act: §2
1947 Act: §2
1976 Act: §408(e)

“Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version.”  (1976 Act, §408(e))

What the Courts Ruled


Bartlett vs Crittenden

C.C.Ohio (Nov. term 1849) ¤ Fed.Cas.No.1,076.

Bartlett wrote an unpublished manuscript of 207 pages on his own bookkeeping system, and used the manuscript for twelve years of teaching, “with the view of rendering it more perfect, and with the intention of publishing it.”  Crittenden copied 92 pages “with only colorable alterations.”  Crittenden entered school ignorant of book-keeping, took the course, then “took charge of the writing Department for a short time.”  In Bartlett’s class, students “were required to copy certain parts of it [Bartlett’s manuscript], and were at liberty to copy the whole.”  “The manuscript… was used… for the purpose of imparting instruction to the pupils, and it does not appear, from the evidence that copies were required or permitted to be taken of it for any other purpose.  There is nothing in the testimony from which an implication can arise, that Bartlett consented to the publication of his manuscript by the defendant, or that he ever abandoned it.”  Injunction granted.


Grandma Moses Properties, Inc. vs This Week Magazine et al

USDC SDNY (11-30-1953) ¤ 117 F.Supp. 348, 90 USPQ 455

Anna Mary R. T. Moses painted two paintings which she called “Over the River to Grandma’s House.”  One was painted February 28, 1944, and the other on March 22, 1944.  On the first of these, Galerie St. Etienne obtained a statutory copyright May 24, 1948.  The second painting was sold the day it was painted, and on February 11, 1953. William I. Nichols, editor of “This Week Magazine,” bought it at a New York art gallery and transferred it to the magazine, which published it in its October 25, 1953, issue.  The two paintings had “some minor variations in details.”  “Mrs. Moses avoids stating that when she sold [the second painting] to the now unknown vendee she reserved the right of reproductions and limited the sale to the physical picture itself.”  (She had entered a contract October 18, 1945, assigning all of her copyrights in prior paintings [except where copyright was already assigned] to Otto Kallir [of the Galerie St. Etienne] and Mrs. Story.)  No copyright was ever secured on the second painting.  The court concluded that “the unrestricted sale of that copy [the second painting]… simultaneously ended Mrs. Moses’ ‘common-law copyright’ of the original”.  Given that the first painting was not copyrighted until “years after” the sale of the second painting, “the statutory copyright on [the first] was a nullity.”


Classic Film Museum, Inc. vs Warner Bros. Inc.

USDC, D.Maine, N.D. (7-17-1978) ¤ 453 F.Supp. 852
StrBrn37.jpg (19438 bytes)

David O. Selznick’s production company acquired “statutory copyright” to A Star is Born when this first film by that title was copyrighted June 7, 1937. In 1953, Warner Bros. acquired from Selznick all rights in the film, story, screenplay, and score, and in 1954 Warner Bros. released the second film by that title.  The copyright in the 1937 version “was not renewed and expired in 1965.”  Had there been an underlying copyright to the 1937 film, a statutory copyright in the underlying works (assuming such had not been allowed to expire) would continue to protect those portions copyrighted.  The Court noted: “Prior to the production of the [1937] film, Selznick had caused to be written by its employees for hire … a story, screenplay and musical score … but did not obtain a statutory copyright in them.”  Although the story, screenplay and score had been protected by common-law copyright while not published, “A common-law copyright is lost upon the copyright proprietor’s publication of the matter so protected.”  The decision notes that there had been no separate publication of the story, screenplay or score of any version of “A Star is Born,” which at the time of the decision comprised 1937, 1954 and 1976 versions.

“The court holds that the expiration of [WB’s] statutory copyright in the 1937 version of the motion picture film A Star is Born dedicated the film in its entirety to the public use, and [WB’s] common-law copyright in the derivative, script and musical score of the film afford no basis for its claim to the exclusive right to exhibit, distribute or other use the film.”

EDITOR’S NOTE: The Judge assumed that any next version would be the “fourth” version.  (The assumption appears herein: “Plaintiff concedes, for present purposes at least, that… no one not authorized by defendant can produce a fourth film version of A Star is Born based on these materials.”)  Actually, any next version would be the fourth version by that title.  Selznick had knowingly remade the 1932 film What Price Hollywood? as his 1937 Star is Born, thus the 1937, 1954 and 1976 versions were the second, third and fourth versions, and any subsequent version would be fifth.


C. Brian Burke, M.D. vs National Broadcasting Company, Inc.

USDC, D.NewHampshire (12-28-1978) ¤ 462 F.Supp. 267
reversed by USCA 1st Cir. (5-17-1979) ¤ 598 F.2d 688, reversed

Dr. Burke filmed zebra and lioness in East Africa, but did not copyright his film.  Because of the unusual nature facts documented in the film, the film made the rounds of experts.  Dr. Burke, as the holder of a common-law copyright, gave the film to a professor at a German university, without placing any restrictions on persons who could view the film nor upon the purpose for which it could be shown.  Survival Anglica Limited, “a British company specializing in nature films,” bought it from the professor to use in a one-hour TV special titled “The Parenthood Game.”  The special was shown on NBC January 27, 1977, 8-9pm, prompting Dr. Burke to bring suit.  The lower court decided that Burke, knowing that the film would be copied and used on German television, had allowed “general publication” to occur, which divested him of common-law protection. 

The appeals court disagreed.  The photographer had merely sent his film to one person in response to a request, with the understanding that the copy would be used personally in lectures and on an educational television program in Germany.  Even without explicit knowledge about the recipient’s subsequent distribution, what occurred wasn’t “general publication” of the work, thus there remained a common-law copyright and he was entitled to recover from others who obtained a copy of the film not authorized by him.

ASIDE: You might be curious about “the unusual nature facts” so I will report what it was: a zebra mare whose foal was killed by a lioness returned (after the zebra herd had scattered) and attacked the lioness.  Previous to this film being circulated among scholars, experts had believed that such actions never occurred.


Batjac Productions Inc. vs GoodTimes Home Video Corp.; Marybeth Peters, Register of Copyrights

USCA 9th Cir. (11-5-1998) ¤ 160 F.3d 1223, CCH 27,825
McLintock_sign.gif (12128 bytes)

“In 1993, respondent GoodTimes began distributing video cassettes of McLintock!.  Three years later, in 1996, petitioner attempted to register a claim to unlimited copyright in the screenplay for McLintock!, but the Copyright Office refused to register the claim. All relevant copyrightable interests in the screenplay, the Copyright Office determined, had fallen into the public domain when the copyright in the motion picture of McLintock! expired.

“Petitioner then brought this action against GoodTimes, alleging that GoodTimes’ distribution of video cassettes of the movie McLintock! infringed petitioner’s copyright in the screenplay… . Petitioner contended that, under Section 7 of the 1909 Act, (1) the public distribution of the movie McLintock! did not extinguish its common law right of first publication in the screenplay; (2) the Copyright Act of 1976 subsequently transformed the common law right into a statutory copyright; and (3) the resulting statutory copyright in the screenplay permits petitioner to control the movie McLintock!, even though the motion picture itself has fallen into the public domain. The Copyright Office intervened as defendant to defend its refusal to register petitioner’s copyright claim.

“The district court granted summary judgment to the defendants, holding that petitioner’s original common law right to first publication did not permit it to control the copying and use of a motion picture that had fallen into the public domain… . The court held that the screenplay, as a component of the motion picture, had been published by the general publication of the motion picture, and that the screenplay had been protected by the motion picture’s copyright.  Accordingly, when the copyright on the motion picture expired and the movie fell into the public domain, the district court held, all elements of the screenplay that had been incorporated into the motion picture fell into the public domain as well.

“The court of appeals affirmed.”  (Quotation from a petition to the Supreme Court, 1999.  The Supreme Court did not accept the case.  The editor of this web site has checked these facts for accuracy against the longer opinion issued by the Court of Appeals.)

The judgment of the U.S. Court of Appeals indicates that the court did consider various possible interpretations of the law and the rights that would derive from them:

“If the screenplay remained unpublished during the period 1963 to 1978 as Batjac contends, then it would have gained statutory protection in 1978 under the Copyright Act of 1976, and would still be protected today.  If, however, publication of the movie also published the incorporated portions of the screenplay, then those portions of the screenplay entered the public domain in 1991 along with the motion picture.”  In that screenwriter Grant died 1966, the 1976 Act (if interpreted in this way) would protect the screenplay until 2016.

Batjac had argued that “a motion picture is in no sense a ‘copy’ of a screenplay.  Rather a motion picture is an interpretation of a screenplay, a performance.  We disagree… .”

“Batjac’s common law right of first publication does not entail multiple first publication rights in every available medium.  As holder of the common law rights in the screenplay and motion picture, Batjac chose to exercise its right to first publish in the medium of film.  Batjac had the opportunity to secure copyright in the screenplay separate from the movie but chose not to do so.  It cannot now attempt to regain its first publication rights 35 years after it produced the screenplay within the motion picture… .”

“While Batjac disputes that a screenplay is a component part of a motion picture, any other result under the 1909 Act would grant an author multiple rights to first publication and would allow an author to publish in one medium with a statutory copyright but leave the work unpublished in a separate medium to extend copyright protection in perpetuity.”

The certiorari to the Supreme Court would amplify these ideas when writing that Bajac’s argument amounts to the view that “the publication of the movie McLintock! had no effect on its ‘common law’ copyright in the unpublished screenplay for McLintock!, because the screenplay itself was not published. Furthermore, petitioner [Batjac] claims that (even though its statutory copyright in the movie McLintock! has expired) its rights in the screenplay for McLintock! give it the right to control the movie McLintock!, since the movie incorporates protected elements from the screenplay. The district court and court of appeals properly rejected that argument… .

“Under petitioner’s construction, any work published under the 1909 Act and which is now thought to be in the public domain would suddenly be the subject of a statutory copyright, so long as the author or owner can find an earlier unpublished draft from which the published draft was derived.”

(Might there be still other derivative versions in the public domain?  In passing, the USCA opinion mentions that in 1963 Batjac “published a book and a comic book based on the screenplay.  Both were registered for copyright.”  GoodTimes contended that these derivative versions entered the public domain with the movie “when not renewed in 1991.  However, since GoodTimes failed to introduce evidence that these publications were not renewed, we do not rely on this argument to affirm the district court.”)


Shoptalk vs Concorde-New Horizons

C.A. 2d Cir. (2-3-1999) ¤ 168 F.3d 586

Concorde-New Horizons co-owns what it contends amounts to an unpublished 1959 screenplay, although it was made into a 1960 motion picture, The Little Shop of Horrors.  Shoptalk, Ltd. and composer Alan Menken own the 1983 musical of the same name, adapted from the movie.  Originally, the owners of the musical paid royalties to Concorde-New Horizons.  Concorde-New Horizon filed suit for payment of royalties for the underlying work of the musical, no royalties having been paid since 1991.  The United States District Court for the Southern District of New York, ordered Shoptalk to pay Concorde-New Horizons $75,592.65 and ordered Menken to pay Concorde $56,843.84.  That court had ruled that the screenplay enjoyed copyright protection upon being registered in 1982.

“On appeal, Shoptalk and Menken, supported by the United States Copyright Office as amicus curiae, argue that the district court erred in ruling that publication of the motion picture did not constitute publication of its underlying screenplay… . [W]e agree with plaintiffs and the Copyright Office that, under the Copyright Act of 1909…, the publication of the motion picture in 1960 published so much of the screenplay as was disclosed in the film.”

(EDITOR’S NOTE: The decision says “the 1960 publication of a motion picture (whose copyright has now expired)”.  At the end of this item, there is further discussion on why that wording is not exactly correct.  As the verdict is not affected by the differences raised, the reader can continue reading without absorbing any further misunderstanding.)

The 1983 contract between the musical’s producers and New World (successors to any rights in the movie) indicated that should New World “fail or neglect to execute or record any document required to renew or extend such copyright,” the musical’s producers could take remedies.  “The motion picture itself was registered for copyright protection in 1985, and its registration stated the film’s date of first publication as January 5, 1960. The copyright in the motion picture was assigned to Millennium.  Concorde is a successor-in-interest to Millennium.”  In 1988, that copyright was not renewed.  “Sometime prior to 1991, Shoptalk and Menken learned of the failure to renew, and they thereafter ceased making royalty payments to Concorde.  (They continued, however, to pay royalties to [Charles Byron] Griffith [the screenwriter].)…  Concorde contended that its nonrenewal of the motion picture copyright gave [Shoptalk and Menken] the right to renew the copyright but gave them no other rights.”  The court found that the crucial fact was the absence of a subsisting copyright in the underlying work.  The judgment was in favor of the producers of the musical.

EDITOR’S NOTES: Every print I’ve ever seen of the 1960 film Little Shop of Horrors has lacked a copyright notice.  My understanding is that the film never had one.  This is supposedly why there were many unauthorized reproductions sold on Super 8, 16mm and homevideo beginning in the mid-1970s, during what would have been the first term of copyright.  Without a copyright notice, the film was in the public domain before 1988.  This difference as to time would not change the verdict in the case, because the dispute was over royalties due after 1988 and the verdict was decided on the basis of whether the film was in the public domain beyond that year.

The payment by the producers of the musical to screenwriter Griffith might be looked upon as a courtesy.  The uncopyrighted, unpublished screenplay no longer had any copyright status once the published motion picture in which it was subsumed entered the public domain.  This principle would be the basis of a verdict soon thereafter (Batjac Productions Inc v. GoodTimes Home Video Corp.; Marybeth Peters, Register of Copyrights (1998)) when a court ruled against Batjac’s attempt to claim an underlying copyright in the screenplay of McLintock!.  (See separate summary under underlying copyright: unpublished work.)

Other Information


“[I]f a previously unpublished screenplay is embodied in a motion picture, so much of the screenplay as is disclosed in the motion picture is published when the motion picture is published.”   (Quotation from Certiorari to Supreme Court (1998) regarding Batjac v. Goodtimes (9th Cir., 1998), reporting that this Appeals Court resolved the issue in the same way as had occurred in Shoptalk, Ltd. v. Concorde-New Horizons Corp., 168 F.3d 586 (2d Cir. 1999).  The former case involved the unpublished screenplay of McLintock! (1963), the latter that of Little Shop of Horrors (1960).  The Supreme Court chose not to schedule an appeal.)

The “Compendium of Copyright Office Practices under the 1976 Act” is an in-house document used in the Copyright Office to guide employees in their work.   This document, at § 910.04 (1984 edition), states: “The inclusion of an unpublished work in another work that is later published results in the publication of the first work to the extent that it is disclosed in the published work.”
    As Example 1, the Compendium states: “Where a preexisting unpublished screenplay is embodied in a motion picture, those elements of the screenplay disclosed in the motion picture are considered to be published at the same time as the motion picture is published.”
     The “Compendium of Copyright Office Practices under the 1909 Act” (1977 edition), at § 3.1.1 IV.a., states: “Publication of a portion of a work does not necessarily mean that the work as a whole has been published”.


Cases Summarized in Other Sections

Folsom vs March (launch this) concerned unauthorized quotation from letters by George Washington which the author of another work had obtained exclusive rights to.

Shapiro, Bernstein & Co. vs Jerry Vogel Music Co. (launch this) judged the copyright status of a song that had been copyrighted in 1911, 1912 and 1914 in different versions by different collaborators.




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