Tuesday, December 19, 2006

Bambi's Twin Copyright Horrors

Sometimes you read a case and gloss over how truly horrible it is. I re-read yesterday the Ninth Circuit's opinion in Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162 (9th Cir. 1996). One could never pick the worst Ninth Circuit opinion because the field is almost limitless. But in the realm of copyright, Twin Books could be a contender. Contrary to popular belief, Bambi was not a Disney creation; it was written by a Hungarian Jew, Siegmund Salzman. Salzman (born 1869) moved with his parents to Vienna when he was three weeks old, wrote Bambi in 1923 and first published it under the pen name Felix Salten in Germany in 1923 as "Bambi, ein Leben im Walde" ("Bambi, a Life in the Woods"). Hitler, showing the consistency in racial beliefs that was one of his hallmarks, had Bambi banned in 1936 as the work of an undesirable, causing Salzman to flee to Switzerland. (The Ninth Circuit opinion omits all this unpleasantness in its Disney-like recitation of the facts, as well as the fact that Salzman's other major work, the novel "Josephine Mutzenbacher," a kind of Viennese "Fanny Hill'", was published anonymously and banned as pornographic).

Salzman's publication in Germany was, not surprisingly, without a copyright notice since Germany had no such requirement. At some point, though, he must have realized there might be a problem in the U.S. because in 1926, he republished it in Germany and Austria with a copyright notice. (Whittaker Chambers subseqently translated it into English to supplement his meager income working for a communist newspaper). A U.S. registration was obtained in 1927.

Salzman and his publisher then assigned rights to one Sidney Franklin, who in 1937, assigned rights to Disney. According to imdb.com, Franklin was to "direct" the animated film, but after it was delayed, he moved on to other projects. (He is credited as "artistic collaborator;" David Hand was the helmer). Disney's movie Bambi (one of an endless stream of Disney movies in which one of the parents is killed off), came out in 1942 and has been a huge success ever since. My 5 year old twins have watched it a number of times this year, which means I have too, mostly so I can skip over the part of Bambi's mother being offed. (This is perhaps a Freudian reaction since my own mother died young).

According to wikipedia, Salzman never received a penny from Disney for the movie's use of his work. Salzman died in 1945, which means all U.S. rights reverted to his estate since he died before the renewal term (if any). His daughter, Anna Salten Wyler, renewed the alleged U.S. copyright in 1954 (1926 +28). In 1958, she negotiated three agreements with Disney. She died in 1977, leaving her husband Veit Wyler as her only heir. In 1993, Veit und seine zwei kinder assigned their rights to Twin Books.

At some point things between Twin Books and Disney turned ugly; Twin Books sued and Disney mounted a creative defense full of alternative arguments: Bambi the book was in the public domain; no it isn't, Disney owns the renewal rights; Twin Books is only a non-exclusive licensee. You get the idea. Disney's public domain argument was based on the publication in Germany in 1923 without notice. That was a very good argument, one the Ninth Circuit misdescribed and misunderstood. The 1909 Act was clear that U.S. copyright was secured by foreigners complying with the requirements of U.S. law. This is not, as the Ninth Circuit erroneously stated, an extraterritorial application of U.S. law: Congress was merely saying that if you want a U.S. copyright, this is what you need to do, regardless of where the work is first published. (In Section 401(a) of the 1976 Act as passed, Congress hammered this point home unmistakably, referring to: "Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner ...").

In coming to a contrary result from the statute, the Ninth Circuit purported to rely on the Supreme Court's pre-1909 Act opinion in United Dictionary Co. v. G&C Merriam Co., 208 U.S. 260 (1908), but that case was inapposite because it involved a different statute and different facts: whether a work published with copyright notice in the U.S. lost protection by subsequent publication without notice in England. The Ninth Circuit also purported to "adopt" the reasoning of Judge Frank's opinion in Heim v. Universal Pictures Co., 15 F.2d 480 (2d Cir. 1954), but that opinion stands for a very different proposition. As Judge Clark pointed out in his concurring opinion in Heim, "the opinion holds that American copyright is secured by publication abroad without the notice of copyright admittedly required for publication here, " 154 F.2d at 488. In other words, U.S. copright commenced with publication overseas regardless of whether the foreign publication complied with the U.S. Copyright Act.

All of the above could be dismissed as differences of statutory interpretation and sloppy reading of precedent. Here is where Bambi's horrors kick in. Heim held that U.S. copyright began with publication overseas without the notice prescribed by U.S. law (a position the Copyright Office later rejected), but at least U.S. protection was coterminous with the facts of publication and term began and could end based on those facts, say by failure to renew. Twin Books however held that U.S. copyright did not begin until publication with notice in the U.S., that is, in 1926. So what then of the status of the work in 1923-1925? The court held that within that period, anyone in the U.S. could have used the work without liability. But that makes no sense: if the work was not "published" within the meaning of the U.S. copyright before 1926, then it was "unpublished." There is no third category. If it was unpublished, it was protected in the U.S. and no one could use it. The court of appeals thus created a new category of work never before seen or dreamed of, even by Walt.

The court's holding also creates chaos for those seeking to determine the status of older, foreign works. Does one follow the Copyright Office's view, the Second Circuit's view in Heim, or Twin Books? Moreover, as noted by a district court in the Ninth Circuit: "The Twin Books rule would prevent a foreign work published without notice from being eligible for copyright restoration under section 104A," Societe Civile Succession Richard Guino v. Beseder, Inc., 414 F. Supp.2d 944, 949 (D. Az. 2006). Indeed, Twin Books creates huge problems addressed in Section 104A's reliance party provisions, but not elsewhere, namely the ability, say of those who find a copy of the 1923 version of the book to continue to distribute the book after 1926 or to translate it.

Bambi may have ended up happily with Filene
, but the Ninth Circuit has once again left the rest of us running deep into the forest, trying to save our lives from Man.


Anonymous said...

Professor Patry,

The Twin Books opinion states that "United States copyright" was not secured by the unnoticed publication of Bambi in Germany in 1923. As a result anyone could have sold or otherwise used the book in the United States during 1923-1925 and "the author Salten would have had no recourse under United States copyright law."

By use of the phrase "United States copyright law" could the court have meant that Bambi had no protection under the federal copyright law (since it was unpublished for federal copyright purposes during 1923-25) but could be protected as an unpublished work by state common law copyright during those years?

William Patry said...


You may be right that the court was being cleverly oblique. For my two cents I think that if true it would be too clever by more than half because I can't imagine a state court finding the work to be unpublished.

Here's why: The courts (federal and state) developed binary concepts of investitive and divestitive publication under the 1909,meaning you were invested with federal protection by publishing with the proper notice, and that was also the exact point at which you were divested with your common law rights.

Equally, if you published without notice, you never got federal rights and you lost (were divested of) state common law, which is what I think happened to poor Bambi.

Since it didn't matter if the publication without notice occurred in a different state in which common law rights arose (say you wrote the book in NY but published it in California), I don't see why it would matter if you published without notice in Germany, but then I think Heim was wrongly decided too. But Heim is, as I noted inconsistent with Twin Books although Twin Books didn't realize the inconsistency: Heim vested federal copyright by publication overseas without notice, whereas Twin Books said publication overseas did not begin "U.S." copyright.

Nick Blair said...

Thanks for your interesting analysis.

I take it that your view is that Heim and Twin Books should have held that a work first published without notice outside the U.S. before 1978 entered the U.S. public domain at that time. It could then be eligible for restoration under Sec. 104A.

William Patry said...

Yes, Nick that is my view precisely and I also think it is the Copyright Office's view.