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10F copyright doesn't cover matter inserted on behalf of others
1909 Act: Not explicitly discussed
1947 Act: Not explicitly discussed
1976 Act: §404(a)
“A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 through 403. However, a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements of sections 401 through 403 with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published.” (1976 Act, §404(a), emphasis added.)
“A notice for the collective work will not serve as the notice for advertisements inserted on behalf of persons other than the copyright owner of the collective work. These advertisements should each bear a separate notice in the name of the copyright owner of the advertisement.” (Information Circular 3)
The publisher of The Pictorial Shopper and The Daily News (Jackson County, Mo.) copied ten ads (plus one news item and one cartoon) from a competing publisher (which has five newspapers). The ads were the focus of the decision.
“Although these ads all appeared in copyrighted editions of one or another of plaintiff’s newspapers, and such copyright clearly covers all the component parts which make up the copyright edition, these advertisements of themselves were not, in the opinion of the court, copyrightable, and the reproduction of them by the defendant was not a violation of any of the plaintiff’s copyrights… .. The advertiser and the advertising salesman cooperat[ed] to prepare the form of the ads, and the figures and words included therein. Such ads are frequently run in different newspapers without change in any manner.
“The advertiser certainly retains the property rights in such ads, and may cause them to be run and re-run as he desires. If this were not so, every merchant would be precluded from ever reproducing [his own] advertisement in which he used the same wording and the same cuts or matrices of the same advertised commodities, in two different papers, if the issue in one of those papers was copyrighted. Certainly the law never anticipated such restriction upon the rights of merchants to freely advertise their merchandise.
“All of the advertisements which have been described were first run in one of the plaintiff’s papers, and thereafter reproduced in one or another of defendant’s papers.” The Court found that the defendant newspaper had not infringed insofar as it reproduced these ads. (The defendant had reproduced one cartoon and one news story from the plaintiff’s newspaper, and on those the judge imposed the minimum statutory penalty under the circumstances [$4,000], not finding harm having been done.)
A newspaper masthead stated, “Reproduction in whole or in any part of any advertisement in this publication is strictly forbidden and protected by U.S. copyright. All Art Work, Type, Layout and Design remain the sole property of Excel Promotions Corp.”
Nonetheless, the advertisements in the newspaper had no notice. Copyright law does not allow for coverage of material by others inserted (rather than truly incorporated) into a work registered for copyright. The plaintiff published “South Bay’s Official Shopping Newspaper,” a weekly in Suffolk County, NY. The defendant published a weekly newspaper circulated in “same general area.” Both papers were thus able to use the same ads, despite the participation of the staff of one paper in preparing ads which it didn’t get additional compensation for when those same ads appeared in the other paper. “Fact that newspaper company is employer of it’s [sic] staff, who prepared advertisements at issue, is irrelevant in case in which it was advertiser who paid for production and printing of ads and for whom ads were ultimately prepared.” That work was in the public domain.
(The case notes that the 1909 Act applied, owing to 1977 publication being at issue.)
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© 2007 David P. Hayes