Wednesday, July 06, 2005

Is Copyright A Gift You Can't Refuse?

Last week, a reader asked me to do a posting on whether one may disclaim an interest in copyright; in other words, is copyright a gift you can't refuse? The answer is yes you can disclaim an interest in an original work of authorship you have created. The issue only arises under a system of automatic copyright; that is, a system like ours where you don't have to satisfy a formality in order for copyright to vest. You create an original work of authorship, presto, you've got yourself a copyright.

OK, but what if you don't want the copyright? Given the millions of copyrighted works created every day in the United States and the fact that only about 600,000 claims to copyright are registered a year, clearly there are a lot of folks who aren't interested in vigorously protecting their copyrights (since registration is a prerequisite to important relief). But there are people who are interested in using works people don't care about (in a copyright sense). And it does happen sometimes that people who didn't care before, all of a sudden do care when someone else is using the work and making money off it, or is simply using it in a public way.

The problem is a relatively recent one. Until January 1, 1978 (the effective date of the 1976 Act), there were formalities placed on the existence of copyright. In the 1790 Act this entailed publishing a notice of a claim to copyright in newspapers (all the better to inform those who might not know of your claim), and registration with the clerk of your federal district court. In the 1909 Act, you merely had to place a proper notice in the book (or other published work), and eventually provide the Library of Congress with deposit copies. Additionally, however, failure to comply with the renewal requirement led to a vast amount of works falling into the public domain.

The 1976 Act went to a system of automatic copyright (Section 102(a)), but there was a mandatory notice requirement; not on the existence, but on the exercise of copyright. This distinction was played out in Section 405 which provided ways to cure the absence of, or an incorrect notice, thereby preventing a work from falling into the public domain.

Finally, until 1986, there was a manufacturing clause requirement (Section 601 of the 1976 Act). The nature of the requirement changed substantially over time (it began in 1891), but the short statement of it is that works covered by the requirement which were not printed and bound in the United States had no protection. Under the 1909 Act, the Customs Service would seize books coming into the country with a copyright notice but without being printed here or qualifying for an exemption. This requirement led some publishers to effectively abandon copyright by leaving the notice off, but there was also a procedure before the Copyright Office where one could actually record a notice of abandonment, so people could search the Office's records for such notices.

In short, one could deliberately inject a work into the public domain by consciously failing to comply with the requisite formality, or, the work could fall into the public domain through an inadvertent failure to comply. There is no question that the existence of formalities weeded out a very large number of works that authors had no copyright interest in. It is also true that copyright owners lost copyright inadvertently or through a genuine but failed effort to comply.

Formalities under the 1909 Act were extremely rigid and technical. Those who didn't practice under that Act tend to underestimate the difficulty of good faith efforts to comply, even by lawyers. For non-lawyers it was much worse.

I am a firm believer that we did the right thing by doing away with formalities, having seen first hand the tragic loss of copyright in works authors or their estates deeply cared about, but this doesn't mean the abolition of formalities hasn't led to its own set of problems. It has, and we have yet to solve those problems or to even try. The extension of term in 1998 has made the problem of "orphan works" (those works authors aren't interested in) even more important, perhaps critical. (One can of course, still disclaim copyright via a statement to that effect put on copies of the work, or you can file such a statement with the Copyright Office, or however else you want to publicize the fact).

Judge Posner and I wrote an article about the problem of orphan works and fair use, "Fair Use and Statutory Reform in the Wake of Eldred," 62 California Law Review 1639 (Dec. 2004). The Copyright Office on January 26, 2005 published a Notice of Inquiry requesting comments on the problem of orphan works. A number of comments have been submitted and they make good reading. Congress has indicate some receptivity to the problem and this may be a way, small as it is, to ameliorate some of the problems.


Joe Gratz said...

It's clear that a copyright owner who publicly disclaims or waives his rights is unlikely to be successful in a later infringement action. But it's not entirely clear on what theory the action would be barred.

The relevant hypo is this. Charlie has written a poem; his rights arose upon fixation. Charlie hands out his poem to passers-by on the street, saying to each one, "Here, this is my poem. I have dedicated it to the public domain and claim no proprietary rights in it." (A bit of a mouthful, but he wants to be sure.)

Charlie gives a copy to Lou on the street, orally disclaiming his copyright. Lou gives the copy to Peter, saying nothing about the disclaimer. Peter loves the poem and publishes it in his magazine.

Charlie, meanwhile, has changed his mind. He applies for a copyright registration. Since nothing on the face of the work indicates that Charlie has disclaimed rights in it, the registration issues. Charlie then files a copyright infringement lawsuit against Peter.

Charlie loses, pretty clearly. But why?

Peter cannot raise the defense of license, since he is not a licensee.

Charlie might be estopped from asserting his rights because he has publicly disclaimed them.

But -- while this may be a semantic distinction -- even if the entire world could assert an estoppel defense, that doesn't mean his copyright doesn't exist. The Copyright Office probably could cancel the registration under 37 CFR 201.7(c)(4)(i) or (c)(4)(vi), but the regulations don't explicitly contemplate dedications to the public domain. And while Charlie could have recorded a document disclaiming his rights (since you can record any document affecting the legal status of a copyright), the recordation provisions of the regs don't contemplate public domain dedications either, and charging copyright holders $80 for the privilege of dedicating their rights to the public seems perverse.

Even with a good solution to the orphan work problem, copyright holders should be able to irretrievably accelerate their work's progress into the public domain quickly and painlessly. The Creative Commons Public Domain Dedication is a valiant effort, but it seems a more elegant solution ought to be possible.

William Patry said...


There is a separate defense of abandonment recognized in copyright law. The defense arises when the copyright owner intends to surrender its rights. A case that I had in mind in writing the post is Haday Corp. v. Dean Witter Reynolds, Inc., 739 F. supp. 1392 (C.D. Cal. 1990), where the copyright owner posted a notice on copies of its works disclaiming copyright after two days. The copyright owner later wanted to sue a nonsubscriber to its newsletter who copied it after two days. The copyright owner submitted a declaration of an alleged intent not to abandon, which the court rejected:

"Hadady Corp. manifested that intention: its copyright notice on the Bullish Consensus newsletter was clearly limited to two days. It does not matter that Dean Witter did not subscribe to the newsletter; Hadady Corp. abandoned copyright protection to the information contained therein with respect to the whole world.

Mr. Hadady declares that he did not subjectively intend by the two day notice to abandon Hadady Corp.'s copyright interest. But his declaration flies in the face of the only possible meaning the two-day copyright notice conveyed, and does not raise a triable issue of material fact."

The difficulty is that the court then added: "The abandonment ended, however, on September 22, 1987, when Hadady Corp. changed its form of copyright notice to delete the two-day provision." Presumably this referred to new works and not to the old ones published with the notice.

William Patry said...

Orphan works update:

I just received a short time ago today the email version of the Copyright Office's newsletter announcing roundtable discussions on orphan works at the end of July and in August, for those who might want to attend or submit comments:

Timothy Phillips said...

There's also an equitable defense of estoppel by acquiescence, is there not ? In cases of very old works I think this should be generalized: The law should be modified to create a sort of general bar to actions asserting any lingering common-law rights of first publication (RFP) in works published in collections from which all statutory rights have expired.

On the matter of abandonment of statutory copyright, could not the copyright office modify its forms to allow someone who registered a work with its office to check a box declaring intent not to enforce ? This non-enforcement could even be time-limited--subject to termination just as licences are. But it would create a record of the author's intention for those few works that an author registered but wanted to allow to circulate freely.

In a formality-free environment, a shorter term of copyright has the advantage of keeping all disputes over a work's copyright closer in time to the origin of the work itself. If witnesses need be brought as to the author's intentions on any matter, the court would prefer them to be alive, would it not ? If copyrights usually expired before the witnesses necessary to resolve any dispute over them died, (compare Thomas Jefferson's proposal of setting the term to the half-life of an adult generation) maybe unsolvable cases of possible abandonment will be less likely to arise.

A possible complementary step would be in copyright cases to broaden the "ancient documents" exception to the bar against hearsay evidence to include helpful things that would not now be permitted. Do published biographies by reputable scholars count as "ancient documents" ? If they don't, maybe they should in copyright cases.

Anonymous said...

I am a firm believer that we did the right thing by doing away with formalities, having seen first hand the tragic loss of copyright in works authors or their estates deeply cared about, but this doesn't mean the abolition of formalities hasn't led to its own set of problems. It has, and we have yet to solve those problems or to even try.

Registration formalities were "done away with" to ape European models. Europe's tradition in copyright is bound up with cultural protectionism. Protect everything automatically and cultural preservation is well served. The U.S. was foolish to follow. It fails to comport with the development of U.S. culture as a melding of multiple materials from multiple traditions and sources. We are not a copying culture, like Japan or China, but the U.S. is a borrowing culture.

The bad in the 1909 Act formalities, even as subsequently interpreted by the courts, came from their use as investitive predicates. If instead formalities preserved a claim to copyright sometime after a public use, they would better serve the copyright owner and the copyright user. It would help the owner to maintain proper records and it would help users to identify protected works and those who owned them. It would take care of the orphaned works issue and it would allow vast quantities of automatically protected works, like this posting, to tumble graciously into the public domain.

Randy said...

Whadya know..... everyone these days seems to leave comments on blogs just to promote their own sites...

So I hope you don't mind me following suit?
I have a site about poems - ... which may be of interest (or not) ... if it is do pop over.
Hope ya have a good xmas


Nicolas Cruz said...

The manner of giving is worth more than the gift. ~ Keep it up Nice blog!