This is a Citations and Case Summaries page of the
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01B limited publication
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This page contains the following subsections:
01B.1 — limited publication of movies (go there)
1909 Act: §2
1947 Act: §2
1976 Act: §102
“[N]othing in this Act shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor.” (1909 Act, §2; almost verbatim in 1947 Act.)
Monroe, living in Chicago, was author of an unpublished manuscript. Press Pub Co. published the World newspaper in New York City.
Monroe was first to file charges. Her complaint “alleged that prior to September, 1892, the plaintiff had composed and written out in manuscript, but had not published, a lyrical ode, the work of her intellect and imagination; that on September 23, 1892, a committee of the World’s Columbian Exposition made an agreement with the plaintiff, whereby, for a good consideration, they were licensed by her to use the ode, for the sole purpose of having it read or sung, or partly read and partly sung, on the public occasion of the dedicatory ceremonies of that exposition in the city of Chicago, on October 21, 1892; that the general ownership of the literary production, with the right of unlimited publication after that date, remained in the plaintiff; that, during the 10 days preceding said 23d of September, she delivered to the committee the manuscript of the ode, for the purpose expressed in the agreement of license, and with the injunction that the manuscript should be held secret, in order that the plaintiff’s right of property should be preserved inviolate, and especially that premature publication should be avoided; and that the utmost care was taken, both by the plaintiff and by the committee, to prevent or forestall piratical attempts on the part of newspapers; but that the defendant, through its officers and agents, between September 14 and September 23, 1892, surreptitiously obtained from the rooms of the committee the manuscript, or a copy thereof, and sent the same to its office in New York, and, disregarding a protest sent by the plaintiff by telegraph, published in its paper of September 25th the ode, with many errors, making portions of the poem appear meaningless, and with a grotesquely incorrect analysis, calculated to produce a false and ludicrous impression of the work; and that these wrongful acts of the defendant deprived the plaintiff of gains she would otherwise have received from the sale of the ode, and damaged her reputation as an author, and were a willful, wanton, and unlawful trespass upon her rights, and subjected her to shame, mortification, and great personal annoyance…
“The plaintiff also testified that in May, 1892, she applied to the librarian of congress for a copyright of the ode, and deposited with him a copy of its title only, and on October 22d, the day after the dedicatory ceremonies, and not before, deposited with him two copies of the ode.”
The Supreme Court let stand the ruling of the lower court, which had decided, “This case is not one of statutory copyright. While some of the preliminaries to the establishment of such a right had been taken, the right was not complete, and on September 24, 1892, did not exist. On that day a copy of the unpublished manuscript came into the possession of the defendant. It had not then been published, although typewritten copies had been made for the examination and use of the musical composer, and for the examination of the committee whose duty it was to approve the work. This circulation of copies did not amount to what the law calls ‘publication.’
“The exclusive owner or proprietor of an unpublished manuscript has the exclusive right to its possession, and to direct and control its use,—the same right which the owner of any other article of personal property has to its ownership and use. The trespasser upon that right is liable in damages.”
(The Supreme Court confined its new remarks to its observation that there had been objections that the circuit court which heard the case did not have proper jurisdiction given the different states where plaintiff and defendant reside. The Supreme Court opined that the jurisdiction had been proper and thus “the judgment of the circuit court of appeals was final”.)
An English artist named W. Dendy Sadler created a painting titled “Chorus,” which in early 1894 he sent to Emil Werckmeister to be photographed. The painting was returned in time to be exhibited at the Royal Academy in London in 1894 from May to August. Werckmeister deposited a copy of the photograph with the Library of Congress on April 16, 1894, as part of U.S. copyright procedure. (Sadler had transferred to Werckmeister copyright.) The painting was displayed without copyright notice. The photogravures of the painting were placed on sale as early as June 1894, and were inscribed with a copyright notice. On June 20, 1902, Werckmeister commenced an action against the American Tobacco Company, from which were seized hundreds of unauthorized copies. American Tobacco argued that “that the original painting was not inscribed as required by the act, and therefore no action can be maintained, and it is insisted that the inscription upon the photogravures offered for sale is not sufficient.” Furthermore, a common understanding was “that a book can only be published in print and becomes known by reading, while paintings, drawings, etc., are published by inspection and observation.”
Nonetheless, the Supreme Court decided in favor of the copyright holder, but not wholly on the side of excusing his form of error: “We do not mean to say that the public exhibition of a painting or statue, where all might see and freely copy it, might not amount to publication within the statute, regardless of the artist’s purpose or notice of reservation of rights which he takes no measure to protect. But such is not the present case, where the greatest care was taken to prevent copying.” The previous eight words referred to specific efforts: “In this case it appears that paintings are expressly entered at the gallery with copyrights reserved. There is no permission to copy; on the other hand, officers are present who rigidly enforce the requirements of the [Royal Academy] that no copying shall take place.” (In 1894, copying was done by hand or by large, heavy, slow equipment.) The steps indicated “the purpose of the owner […] not to permit such an inspection of his picture as would throw its use open to the public.”
Sheet-music copies of a song were given to vaudeville performers to sing, then copyright occurred. No copies are known to have been (nor expected to have been) sold, and copies were not given out for purposes other than performance. This was not publication.
“It was not such a publication to give the song to a limited number of [vaudeville] artists to sing prior to the date of its copyright. There is no evidence or probability that any of the copies were sold, or that they were given out for any purpose but a limited use by a few vaudeville artists.”
“It is, however, well settled that the public performance of a dramatic or musical composition is not an abandonment of the composition to the public.”
An unpublished manuscript which came to be called the “Gaelic manuscript” embroiled a deceased author’s publisher against the author’s brother, who sought a declaration that the manuscript had entered the public domain.
The late Stewart Edward White had been “a successful writer of books on ethics and philosophy of a popular nature” until his death in 1947. “On October 20, 1944, [author] White executed a Bill of Sale transferring to the defendant Kimmell all his rights and title to certain designated works,” including this unpublished one. White’s brother sought a declamation that “White allowed the unrestricted publication of the material and it is now in the public domain… . In truth, however, what the plaintiff seeks, not by reason of his relationship to White, but as a member of the public, is the right to reproduce the unpublished portion of the ‘Gaelic manuscript.’” (By “unpublished portion,” the decision refers to those portions not subsequently published, for “The Job of Living [1948; E.P. Dutton & Co.] contained portions of the manuscript.” This copyright was not challenged. (Last material in brackets are in brackets within the court decision.))
Author White’s unpublished manuscripts had received some circulation: “in 1933 and 1934, copies of the manuscripts, made by what was referred to as the ‘ditto process’, were sent out from White’s office to certain persons interested in the ideas which White believed in, and which he had made popular through his books. But they admitted that the persons to whom the copies were sent were persons whose names had been sent in by friends or were interested in the ideas or to the small elite who were studying them. No copy was ever placed in a public library,… book store or club… Nor were any copies offered for sale.” One person made copies for other interested people, and with White’s permission, received money to compensate for “the cost of mimeographing.” Although the brother insisted that this constituted sale, the court said, “These are the distinguishing marks of private distribution.”
Furthermore: “‘If the circumstances show an intent to communicate the contents of the manuscript to a designated group and for a specified purpose, and does not extend to the public at large, the publication is limited. For this reasoning, the private circulation of an original manuscript or copies of it is not a publication, unless it amounts to a general offer to the public.’”
And: “The most conservative estimate of the number of copies distributed does not exceed 75. And, as already appears, this distribution was to designated persons. None was made to a public institution where the public had access to it. None was sold.”
Conclusion: “there was no general publication”.
The complaint was that plaintiff’s book Killer in the Streets was largely copied by defendant’s publication “It Can’t Happen to Us.” There are differences, with the Court stating that the latter publication has better illustrations, yet both are pamphlets about automobile safety, using a lot of illustrations, each depicting a family confronting the subject.
The issue of publication determined the outcome on this count (other counts are ignored on this site).
“Somewhat over 200 copies of plaintiff’s work Killer in the Streets were disseminated in an effort to find a casualty or insurance company interested in using it in a safety advertisement campaign. On one occasion one hundred copies were placed on a table in Pocono Manor Hotel, Pennsylvania, along with other publications for unsupervised distribution, at a time when a convention of accident and casualty insurance executives were holding a convention at that hotel. Subsequently, plaintiff’s former employee, the present defendant, Holland, induced the Association of Casualty and Insurance Companies to distribute copies to its 112 member companies, again with a view to obtaining business from them. While it is clear that the purpose of distribution was limited to interesting prospective purchasers, no limitation was placed on persons who might obtain copies of the work, either by picking them up from the table in the instance where they were made available in the hotel, or by securing them from one of the insurance company employees who were sent copies in the hope of getting business… . The booklets each contained notice of copyright.”
“In the present case, it is clear that the distribution was limited as to purpose: The creator was seeking a purchaser of his ideas for a safety campaign… . On the facts it would seem plaintiff did everything it could to distribute, bearing in mind that the creation itself was for a distinct purpose. But plaintiff placed no limitation on who could inspect, retain or receive, through any of the original distributees, a copy of his work. If we were to hold that he had not ‘published’ within the meaning of 17 U.S.C. § 10, we would be holding that federal copyright protection is unavailable to persons, in plaintiff’s position, who create works with a view to having others purchase them for wider distribution. We conclude, therefore, that while the ‘purpose’ of the distribution was limited, the ‘persons’ to whom it might be given was unlimited.”
“White v. Kimmell, supra, held that publication by placing a number of copies in a hotel lobby for unsupervised distribution, and lack of restriction on recipients in their right to pass on copies to others, were sufficient to defeat even the common law claim.”
(The text of the decision discusses many cases where it was less obvious that publication had occurred. This case also deals with the differences between statutory copyright and common-law copyright insofar as either might be operative where it would not be obvious.)
Hirson composed the music to “London Bells Will Ring Again” and his mother composed the words. On October 5, 1943, copyright was secured in the mother’s name. “Joseph Carlton, purportedly a publisher,” secured rights from them for three years, and “printed 2,500 copies of the song, each copy bearing the notice ‘Copyright 1944 by Joseph Carlton.’ About 2,000 of these copies were distributed to various persons in the music business.” These were “for ‘plugging’ [publicity] purposes… . Not a single copy was sold. No license or other permission was given to anyone to perform or otherwise use the song.” Those receiving a copy should have understood that any use of the music entailed “obtaining the proprietor’s license through the stated licensing agent.” Consequently, there wasn’t “such general publication as to vitiate appellant’s copyright.” (The wrong name on the notice did not invalidate copyright inasmuch as there wasn’t general publication and as an unpublished work it had been properly copyrighted, including deposit of a copy of the manuscript.)
Rev. Martin Luther King Jr.’s speech delivered to a large crowd in Washington, D.C., August 28, 1963, was so popular that soon thereafter three companies issued commercial recordings available to the general public. (The speech remains a cultural milestone as of this writing four decades later, generally referred to by its unofficial name, the “I Have a Dream” Speech.) These reproductions were unauthorized, issued by companies that assumed that any copyright that might have been obtained had been forsaken. Dr. King sued to enjoin. The Court determined that his unpublished speech retained copyright protection and that the size of the audience (and the fact of its having been broadcast) did not compromise the copyright.
The text of the speech had not been made available to anyone until “the morning of August 28 [he] sen[t] his speech—substantially in the form later delivered—to the ‘press liaison personnel of the Washington office of the March on Washington Committee’. Dr. King says that he did not intend [the text of] his speech ‘to be generally distributed or generally made available to the public at large’ but to be ‘specifically limited in use to assisting the press coverage of the March by the press’. The intent of Dr. King is legally irrelevant; the question is solely with what he did. In fact, the speech was mimeographed as an ‘advance text’ and put into a ‘press kit’ (containing other material also) which was made available to the press some time in advance of delivery of the speech. Dr. King says that this mimeographing and distribution as part of the press kit was without his ‘personal advance knowledge thereof or consent thereto’.
“Dr. King did deliver a copy of his speech to the press representatives of the organizing committee and apparently did not forbid its reproduction for the press. While he may not have known of such reproduction or have expressly consented to it, the use made of it seems natural and reasonable. The significant and important fact is that the copies of the speech were distributed only to the press and that this distribution took place only in the ‘press tent’. Such is the showing made in the affidavit for defendants of the editor of Fox Movietone News who secured a copy of Dr. King’s speech at the press tent on the morning of August 28. The only reasonable conclusion is that the distribution of copies of the speech was limited to the press. There is not even a suggestion that any copies were offered to, or made available to, the general public.
“The ‘advance text’ has no title and from this it seems that Dr. King had not given it a title… .
“Dr. King’s speech (along with the speeches of others made at the same time) was broadcast by television and radio, recorded (sound and pictures) for newsreels, was later shown in movie houses, and of course was widely reported in the press. Excerpts from Dr. King’s speech were published in many newspapers. The New York Post in its issue of September 1, 1963 published the ‘complete text of the speech under the title ‘I Have A Dream * * *’. The Post thereafter offered for sale reprints of the speech. Dr. King says that he has not consented in any way to such reprinting and sale of the speech and did not give to the Post any copy of his speech.
“Defendant 20th Century-Fox Record Corporation and Movietonews, Inc. are subsidiaries of Twentieth Century Fox Film Corporation. Movietonews, Inc. produces a newsreel for movie-theaters called ‘Fox Movietone News’ and took pictures of and made a sound record of Dr. King’s speech on August 28, 1963 and of the speeches made on the same occasion by five other speakers.
“Defendant 20th Century-Fox Record Corporation made a phonograph record from the newsreel sound track of the speeches including that of Dr. King, and about September 18, 1963 began selling these records in a cover, with a picture from the newsreel film of the crowd in front of the Lincoln Memorial. The cover is entitled ‘Freedom March on Washington August 28, 1963’ and states that the record is of the speeches made that day (including that of Dr. King) which were ‘recorded live by Fox Movietone News’. The record has both the voice and the words of Dr. King. Sales of the record have continued.
“Defendant Mister Maestro, Inc. made and is selling a somewhat similar record entitled ‘The March on Washington’, which record does not on its cover or elsewhere refer to Dr. King. The record does contain, however, part or all of the speech of Dr. King as delivered by him in Washington; it has both the voice and the words of Dr. King.
“Defendants are selling their records without the consent of Dr King and of course without paying anything to him.
“After the Washington speech, a phonograph record of some of Dr. King’s speeches was offered for sale with his consent by Motown Record Corp. This record is in a cover entitled ‘The Great March to Freedom—Rev. Martin Luther King Speaks—Detroit June 23, 1963.’ This record does not contain the Washington speech; it does contain the much shorter Detroit speech under the title ‘I Have A Dream’. Dr. King says that this title was given to the Detroit speech by Motown after it ‘saw the widespread public reception accorded said words when used in the text of my address to the March on Washington’.
“On September 30, 1963 Dr. King sent a copy of his speech to the Copyright Office for deposit and at the same time sent an application form for a certificate of registration of his claim to copyright. The class to which the work was claimed to belong was Class C—‘[l]ectures, sermons, addresses (prepared for oral delivery)’. The ‘title of the work’ was said to be ‘I Have A Dream’. The claim to copy right was under 17 U.S.C. § 12, ‘works not reproduced for sale’—unpublished works.
“The complaint was filed on October 4, 1963 and named three defendants—Mister Maestro, Inc., Twentieth Century Fox, Inc., and Motown Record Corp… .
“Before the motion was heard, plaintiff served and later filed an amended complaint, naming only two defendants: Mister Maestro, Inc. and Twentieth Century Fox Film Corporation… .
“As an original proposition, it seems unfair and unjust for defendants to use the voice and the words of Dr. King without his consent and for their own financial profit. Of course, decision cannot be made simply because of such a feeling. This is a Court of law which must look to legal principles established by the Congress and by higher Courts. But under the circumstances here present it does seem that defendants should demonstrate that their use of the voice and words of plaintiff is permitted by legal principles so established… .
“Ordinarily the public performance of a work—such as delivery of a speech or performance of a play—is not a publication.
“Thus on general principles there is no reason why Dr. King could not obtain copyright protection under the laws of Congress for his speech.
“The substantial argument for defendants, and one which must be carefully considered, is that Dr. King lost any right to copyright protection because what he did in Washington placed the speech in the public domain (dedicated it to the public, as it is sometimes put) because it amounted to a publication without obtaining a copyright. There can be no copyright of any work in the public domain.
“Defendants stress the public nature of the delivery of the speech by Dr. King—the enormous crowd, the radio and television broadcasts, the movie newsreel pictures. The question is: was this a general publication of the speech so as to place it in the public domain?
“The broadcast by radio of a script is not a general publication thereof. Uproar Co. v. National Broadcasting Co. (D.Mass.1934).
“The copyright statute itself plainly shows that ‘oral delivery’ of an address is not a dedication to the public. Section 5 (c) and 12 (of Title 17 U.S.C.) taken together show that Congress intended copyright protection for ‘[l]ectures, sermons, addresses (prepared for oral delivery)’ despite such ‘oral delivery’.
“It has never been suggested that the number of persons in the audience had any effect on the principle.
“The ‘oral delivery’ of his speech by Dr. King, no matter how vast his audience, did not amount to a general publication of his literary work.
“Defendants stress the delivery without copyright notice of an advance text of his speech and the distribution of it to the press. But within the concept of publication just examined, it is clear that this was a limited, as opposed to a general, publication.”
illustration: Rev. Martin Luther King, Jr. delivering his speech of August 28, 1963, in Washington, DC, as it appeared in a 1963 theatrical newsreel on which copyright was not renewed.
This is a later lawsuit on the same issue and work previously litigated in King v. Mister Maestro, Inc (1963). Once again, unauthorized copying had been made of Martin Luther King’s speech popularly known as the “I Have a Dream” Speech. Readers unfamiliar with that case or the speech should read the summary above.
“In 1994, CBS entered into a contract with the Arts & Entertainment Network to produce a historical documentary series entitled The 20th Century with Mike Wallace. That episode contained material filmed by CBS during the March and extensive footage of the Speech (amounting to about 60% of its total content). CBS, however, did not seek the Estate’s permission to use the Speech in this manner and refused to pay royalties to the Estate.”
Just as the defendants in 1963 had contended that the speech had been published without being copyrighted, so did CBS. CBS did intimate that it had new evidence, although in Appeals Court the decision went against the network. (This verdict is not conclusive. Read on.)
As in 1963, the Court ruled: “A performance, no matter how broad the audience, is not a publication; to hold otherwise would be to upset a long line of precedent. This conclusion is not altered by the fact that the Speech was broadcast live to a broad radio and television audience and was the subject of extensive contemporaneous news coverage. We follow the above cited case law [omitted in this summary] indicating that release to the news media for contemporary coverage of a newsworthy event is only a limited publication.”
Delineating on what was and was not allowed to news organizations such as that of CBS, the Appeals Court wrote: “We believe that… authority was granted to the press for extensive news coverage, also including broadcasts on television… . [T]he authority was granted to a limited group for a limited purpose… . [T]he restrictions on copying and reproducing were implied. … [T]he foregoing case law indicat[es] generally that distribution to the news media for the purpose of news coverage is only a limited publication.”
“[T]he huge audience and the Speech’s significance in terms of newsworthiness and history…, according to the case law, are not significant in the general versus limited publication analysis.”
What might have turned the verdict in CBS’s favor was its revelation of print publication of the speech prior to its copyright. The publication in question had not been evidence in the King v. Mister Maestro case. If the reader keeps in mind that the Southern Christian Leadership Conference (abbreviated SCLC) sponsored the Lincoln Memorial event and that “Dr. Martin Luther King, Jr., the SCLC’s founder and president,” might be expected to at least have veto power over its publications, it is significant that: “Second, CBS has produced a September 1963 issue of the SCLC’s newsletter in which the text of the Speech was reprinted in its entirety, with no copyright notice. The newsletter was widely circulated to the general public. Indeed, at oral argument, the Estate conceded that this reprinting of the Speech and wide distribution of the newsletter would constitute a general publication, if it were authorized by Dr. King. However, the Estate has raised the issue that Dr. King did not authorize this reprinting and distribution of the Speech. Finding genuine issues of fact in this regard, the district court disregarded this evidence. We agree, and do likewise.”
The Court found this significance in that evidence: “For example, if the SCLC’s reprinting of the text of the Speech in the September 1963 newsletter was authorized, that reprinting might be analogous to the public distribution of photographs in Letter Edged in Black [the Chicago Picasso case, summarized elsewhere on this web site]. Similarly, if CBS were to adduce evidence that Dr. King or his agents offered copies of the Speech indiscriminately to any member of the public who requested them, e.g., through the availability of the advance text in the press tent, that would make the facts of the instant case closer to those of Letter Edged in Black.” (The preceding two quotations were buried in footnotes 4 and 6.)
The decision was unresolved on what seems a significant point: “At trial, CBS may well produce evidence that brings the instant case on all fours with Letter Edged in Black, but the present state of the record does not support the analogy; to the contrary, the performance of the Speech in the instant case is more like the exhibition of the painting in the gallery in American Tobacco.” (This last remark is a reference to American Tobacco v. Werckmeister, the 1907 Supreme Court decision which determined that there is “no general publication where there is merely ‘the exhibition of a work of art at a public exhibition’”; see summary at the top of this section.)
The Beatles’ company sued over unauthorized reproductions of recordings that the four musicians had recorded during their heyday two decades earlier. When the Beatles originally recorded and made available the contents, the recordings had not been commercially distributed nor copyrighted. They had not lost their common-law rights, however.
“The Christmas Messages involved were recorded by the Beatles during the years 1963-1969 and were distributed each Christmas, free of charge, to members of the Beatles’ Fan Clubs on flexible discs. In 1970, the messages were collected and reproduced on a long playing record entitled The Beatles’ Christmas Album and that record was then distributed to members of the Beatles’ Fan Clubs. The records clearly indicate thereon that all rights with respect to the recording were reserved.”
“The attempt by the defendants to promote these 14 to 20 year old recordings appears to be an act of blatant piracy. Bennett attempted to avoid a head-on conflict by advising U.M. Leasing Corp. that they should not use the name ‘Beatles’ in connection with their proposed release of the messages, and instead, the album was titled John, Paul, George and Ringo. This does not insulate the defendants from the charge that they are unfairly trading on the name of the Beatles. Four persons named ‘John, Paul, George and Ringo’ will not be taken by the public as a reference to the Moskowitz Brothers, to the Pope and two other people, or to anyone else except the members of the best known singing group in the world. These four names taken together have acquired a secondary meaning, and the Beatles are entitled to protect their name from exploitation.”
(The reference that the four first names in the album titled would not be assumed to refer “to the Pope and two other people” makes the most sense when the reader realizes that the leader of the Catholic Church from 1978 to 2005 was named Pope John Paul. It’s not believed that this John ever claimed to be more popular than Jesus.)
Regarding “a group of persons for the purpose of further distribution, public performance, or public display… .”:
“[T]he definition… makes clear that, when copies or phonorecords are offered to a group of wholesalers, broadcasters, motion picture theaters, etc., publication takes place if the purpose is ‘further distribution, public performance, or public display.’” H.R. Rep. No. 1476, 94th Cong., 2d Ses. 5, reprinted in 1976 U.S. Code Cong. & Admin. News 5659, 5754.
(Entire above paragraph [including the elipses] appears here as it did within the decision for NBC Subsidiary (KCNC-TV), Inc. v. Broadcast Information Services, Inc., USDC Colo. (12-21-1988) CCH 26,382.)
Cases Summarized in Other Sections
|American-International Pictures, Columbia Pictures Industries, Metro-Goldwyn-Mayer, Twentieth Century-Fox, Walt Disney Productions and United Artists
vs Evan H. Foreman [dba 16mm Filmland], et al (launch this) revolved around whether a film dealer was legally authorized to resell old movies which the studios normally rent rather than sell.
Continental Casualty Company vs Hulbert T.E. Beardsley and H.T.E. Beardsley, Inc. (launch this) concerned a pamphlet distributed without restriction as opposed to merely being given to friends or potential publishers for criticism, discussion or judgment.
See also the cases listed within the “Cases Summarized in Other Sections” box under the “limited publications of movies” section, below.
01B.1 limited publication of movies
See above section, as well as:
1909 Act: §1(d) (see discussion of “dramatic work… not reproduced in copies for sale”)
1947 Act: §1(d) (see discussion of “dramatic work… not reproduced in copies for sale”)
1976 Act: §102, within definition of “perform” (which mentions “the case of a motion picture”)
Defendant “Cummins got hold of one of the positive copies” of Shooting Big Game With a Camera, which had been registered as a “motion picture other than photoplay”. Cummins had Empire Laboratories make a duplicate negative. From 1,000 to 1,500 feet were incorporated into a later motion picture titled The Jungle Killer, which Cummins copyrighted giving claimant name as Century Productions Inc. on August 15, 1932. The Court considered the copyright status of Shooting Big Game With a Camera. “Upon the first reel, and upon that reel only, appeared the notice, ‘Copyright 1928 by F. B. Patterson, Pres. of National Cash Register Co.’”
“This motion picture was not distributed except for exhibition in the strictly limited non-commercial way… . As the distribution was limited to exhibitions of the picture without charge, no one was given the right to use the copies sent out for any other purpose whatsoever. The positive films were merely loaned for that purpose which did not permit copying. There was, therefore, no publication before the registration under section 11 or before this suit was brought. Consequently, the copyright was valid and infringed when this action was commenced.”
EDITOR’S NOTE: The phrase “that purpose which did not permit copying” is odd and misleading because the opinion a half-page earlier had quoted Rule 19 of the Copyright Office regarding “unpublished works” being “such as have not at the time of registration been printed or reproduced in copies for sale or been publicly distributed.” It also quoted rule 23 regarding “published, i.e., reproduced in copies for sale or distribution,…” “Distribution” is a key alternative determinant.
The passages quoted briefly in the above paragraph are reproduced in their full context in the remainder of this summary. As the reader will see, this decision takes an incisive look at what changes occur when the status of “an unpublished motion picture not a photoplay” becomes published.
“… his copyright so obtained was valid for an unpublished motion picture not a photoplay, provided the work was unpublished. So long as it remained unpublished he was not required to do more to keep his copyright valid for the statutory period.
“But if a work so copyrighted is later published, continued validity and the right to maintain a suit for infringement is dependent upon compliance with the statute and rules made under the authority of the statute applicable to the change in the status [published as against unpublished] which publication makes.”
“… So it becomes necessary to determine whether the plaintiff’s motion picture was published by such use as he made and permitted to be made of it. In deciding this question it becomes necessary to notice section 62. It is there provided, ‘That in the interpretation and construction of this Act, “the date of publication” shall in the case of a work of which copies are reproduced for sale, or distribution be held to be the earliest date when copies of the first authorized editions were placed on sale, sold or publicly distributed.’ This, however, as Judge Augustus N. Hand said in Cardinal Film Corp. v. Beck et al., supra, ‘was an enactment to fix the date from which the copyright term should begin to run, and not general definition of what constitutes publication.’
“Rules 19 and 23 of the Copyright Office must also be noticed. They were promulgated under section 53 of the Act. Rule 19 defines unpublished works as—
“‘… such as have not at the time of registration been printed or reproduced in copies for sale or been publicly distributed. They include only the works enumerated in section 11.’
“And rule 23 provides that—
“‘Any work which has been registered under section 11, if published, i.e., reproduced in copies for sale or distribution, must be deposited for a second time (accompanied by an application for registration and the statutory fee) in the same manner as is required in the case of works published in the first place.’
“… In rule 19 the phrase is ‘reproduced in copies for sale or been publicly distributed’ while in rule 23 it is ‘reproduced in copies for sale or distribution.’ The sale of copies of the work is a general publication… . In this respect what is a limited publication which falls short of dedication [to the public] is not to be given the effect of general publication which does dedicate the work to the public. Public exhibition is not necessarily a general publication merely because the public generally is shown the work. The test of general publication is whether the exhibition of the work to the public is under such conditions as to show dedication without reservation of rights or only the right to view or inspect it without more. If the conditions of publication are such that the only right is to look at the copy of the work exhibited there is no general publication which makes the work thereafter a published work in the copyright sense… .
It is shortly after this that the full paragraph quoted in the second paragraph of this summary appears.
(Another aspect of this case is summarized under copyright notice.)
In untangling the legal ownership of the groundbreaking American movie The Birth of a Nation (made 1914, first shown 1915), the Court noted that the film was first registered for copyright as an unpublished work on February 8, 1915, then was registered again, this time as a published work, on October 1, 1915. Copyright protection began on February 8, 1915, and it was understood even after the second registration that the time-span of the copyright term would be calculated on the basis of the February 8 date. No reason is given in the court’s decision as to why the work was considered by its proprietors to have gone from being an unpublished work to be a published work. The film had been shown in theaters from February 1915, but initial engagements were under the control of the film’s director. The website editor guesses that when the film came to be sold to regional distributors who autonomously booked their many prints into numerous theaters within each territory, the film had come to be regarded as “published.”
(A more thorough summary of this case is under renewal registration rights.)
illustration: Lillian Gish as she appeared in The Birth of a Nation, released 1915. Sixty years later, she testified at the trial.
In deciding whether a movie released in 1976 had lost its copyright through pre-release exhibition with a faulty copyright notice, the Court began by noting that the pre-1978 Copyright Act would apply although the case itself was heard in 1981. At the end of the decision, the Court wrote:
“In sum, we hold that, in the context where a forfeiture of copyright protection is at stake, that publication of a motion picture does not occur until the film is in commercial distribution when copies of a film are placed in the regional exchanges for distribution to theatre operators. The adoption of this rule, generally advocated by commentators and followed by the film industry, is in accord with the underlying policies of the copyright law, and at the same time removes much uncertainty from a difficult and arcane area of copyright law under the 1909 Act.”
American Vitagraph had argued “that copyright protection to the film ‘Hooray for Hollywood’ had been destroyed by acts of divestive publication prior to the film’s general release in 1976.” The Appeals Court decided “that the alleged divestive acts were not publications and that the film never lost its common law copyright until its publication by general release in 1976. At that time statutory copyright was obtained by publication in compliance with the requisite notice formalities.”
Copyright had been thought by American Vitagraph to have been lost through the circumstances surrounding two sets of pre-release screenings:
1) A print of the “initial version of the film … was screened to the public for one week in late December 1975 in Eureka, California, and subsequently returned… .” This “was not a publication divesting the work of its common law copyright. That one week screening, following which the film was returned for reediting, was a limited screening to gauge audience reaction to the film. The movie was not distributed at this time to any other exhibitor nor were any copies of the film sold. In addition, the film that was utilized was not the permanent type of film print that is used when a movie is released for general distribution. The copyright notice attached to the film [which was not in the name of its then-owner] was a public expression that the exhibition was intended to be limited or restricted. The film was not being commercially exploited, although a small admission fee was charged.”
2) “[S]creenings to the trade were apparently for the limited purpose of generating interest in the film among potential film distributors. There was only one print of the film extant, which copy was not sold to the distributors who viewed the film at the screenings for further distribution. The screenings were to a select group and for a limited purpose, to foster interest in the film. Thus, even if copyright notice was defective, such defects do not trigger copyright divestment if, as here, there is no publication.”
The Court looked for “a distinction between performance of a work and other means of dissemination” because “[i]f Cinamco, as assignee and therefore proprietor of the copyright, caused a publication without proper notice, copyright protection in the film would be destroyed.” Both sets of pre-release screenings were determined to not constitute publication. Common law copyright protected the work during the pre-release period, and statutory copyright protected it from the time of publication. “Cinamco, as assignee of the common law copyright, was required to, and properly did, use its name in the copyright notice at the time of publication. Statutory copyright was then properly secured at the point of the film’s general release.”
One argument raised against the validity of the copyright notice had been that the notice did not specify the Cinamco name in the pre-release version, but the Court noted that the notice in the pre-release version was not required to meet the statutory specifications while it was protected by common law copyright. Only after the work became protected by statutory copyright (upon publication) was it necessary for the work to (as it did) meet the notice requirements.
Rubinowitz’s company All-Star Video Corp. sold unauthorized videocassettes of Star Trek episodes. Rubinowitz argued that Paramount “published the Star Trek episodes without notice of copyright.” Since its original run on NBC, the episodes were “rerun by more than 140 stations in the United States”, which seemed to constitute publication, which in turn would necessitate a copyright notice in order for copyright to be enforcebale. “All-Star contend[ed] that Paramount’s syndication of the ‘Star Trek’ series to television stations throughout the country without a copyright notice dedicated the work to the public domain. Paramount argued that the leasing of the episodes solely for exhibition or broadcasting did not impair its common law copyright, and therefore, it presently holds a valid copyright.”
All-Star cited noted copyright expert Nimmer, who (writing about the 1976 Act) wrote: “Under the current Act the distribution of copies of a motion picture to television stations for broadcast purposes constitutes an act of publication.” (M. Nimmer, Nimmer on Copyright, §4.11[B], 4.55 (1978)) The Court said that the Nimmer citation applied to instances where prints went to regional offices as part of distribution, thus subjecting the copyright owner to loss of control. Here, the licenses that Paramount signed specified that stations had to return the prints, not allow copying, not part with prints during lease, and limit their broadcast to only nonpaying audiences. “Paramount’s explicit and exhaustive reservation of rights cannot be interpreted as a general publication which would have placed the series in the public domain.”
(EDITOR’S NOTE: My understanding is that just the first season was without notice.)
“On December 8, 1960, NBC broadcast a color videotape recording of Peter Pan… made… during the autumn of 1960.” Five NBC affiliates arranged to scheduled it at later dates, so NBC made for them a black-and-white film from the broadcast. (Known as “kinescopes,” such films “were used to make delayed broadcast possible until the mid-1960s”, when local affiliates began to have videotape equipment.) “Between 1963 and 1968 an NBC subsidiary, NBC International Ltd., granted licenses to broadcasters in five foreign countries to telecast the 1960 production … . NBCI prepared several ‘audition’ prints to use in connection with its efforts to promote licensing agreements in Europe.” (These were more kinescopes.)
Video Images was one of the earliest videotape companies selling VHS and Betamax cassettes to collectors. After its president, Jonathan Sonneborn, came upon a kinescope of the 1960 Peter Pan not in NBC’s possession, he contacted the Library of Congress to learn whether there was a copyright registration filed on it. Finding no copyright registration nor any copyright notice on the kinescope, Sonneberg advertised “cassette copies of Peter Pan in his Spring 1980 catalog.” NBC sued.
“The videotape of Peter Pan that is at issue in this case was broadcast in 1960 while the 1909 Copyright Act was in effect. The copying that gave rise to the cause of action occurred in 1980, after the 1976 Copyright Act went into effect. The two Acts have different definitions of publication; our choice of definition determines the outcome of this case. Sonneborn argues that the preemption provision of the 1976 Act requires that the new definition of publication be applied retroactively; under that new definition ‘offering to distribute copies…to a group of persons for purposes of…public performance…constitutes publication.’ 17 U.S.C. § 101. Under this definition, NBC’s delivery of audition copies and its lease of copies of Peter Pan to foreign television stations would probably amount to publishing them.”
The decision: “The common law definition of publication as it existed prior to January 1978 will be applied to determine whether or when NBC published Peter Pan.” (Why? Precedent showed that “the 1976 Act’s standard does not apply to asserted publications occurring before the effective date of the new Act, even though the cause of action accrued after the date.” The decision also gives legislative background which suggests the intentions of Congress.)
“Sonneborn argues that any of six acts amounted to NBC’s publishing of the 1960 version of Peter Pan: (1) delivery of kinescopes to NBC affiliates for delayed broadcast; (2) delivery of audition copies to European broadcasters to promote the leasing of Peter Pan; (3) delivery of a copy to the star of Peter Pan (Mary Martin); (4) leasing of copies for airing in five foreign countries; (5) donation of a copy to the Museum of Broadcasting; and (6) preparation of copies for NBC’s in-house use in connection with [eventually-abandoned] plans for videodisc marketing. I conclude that none of these acts caused NBC to lose the right to statutory copyright protection… .
“Delivery of the kinescopes of Peter Pan to NBC affiliates for delayed broadcast in 1960 was at most a limited publication. There is no reason to doubt that NBC enforced its policy of policing the return of the kinescopes and thus preserved its contractual right to prevent affiliates from making copies of NBC productions for their own use. The group of affiliates was clearly limited to parties with whom NBC enjoyed contractual relations.
“The act of providing audition copies of Peter Pan to prospective licensees was also at most a limited publication. Here there was an implied prohibition on broadcast and copying; the audition prints were not of broadcast quality… . The group of prospective licensees did not constitute the general public… . The licensing of Peter Pan to foreign broadcasters likewise was not a general publication.” The other acts that were argued to amount to publication were also ruled untenable.
Sonneborn had infringed, yet in being found guilty, the Court found that he wasn’t necessarily a “‘willful’ infringer”. “NBC’s only proof of willfulness was the fact that Sonneborn failed to check with it before he produced the infringing cassettes. Sonneborn was under no duty to make such a check and so was not a willful infringer.” Sonneborn was ordered to surrender all of the profits on the Video Images Peter Pan cassettes. As Sonneborn did not present evidence of his costs, he had to pay the gross revenues on the 40 cassettes he had sold prior to injunction: $2,118.00. (EDITOR’S NOTE: The fact that Peter Pan was registered as an “unpublished work” apparently removed the possibility of heavier damages. NBC did not file a copyright registration on Peter Pan until March 1980, which it was required by law to do as a prerequisite to filing suit.)
“Plaintiff NBC Subsidiary (KCNC) Inc. produces numerous programs including news telecasts. KCNC has a division, Aircheck 4, which videotapes KCNC television productions and provides copies to members of the public upon their request.
“On February 17, 1988, KCNC aired a segment entitled ‘Wednesday’s Child’ as part of its news broadcast. A private investigator, hired by KCNC, purchased a videotape copy of the segment on or about February 22, 1988 from defendant Broadcast Information Services, Inc. Subsequently, on March 2, 1988, KCNC filed this action seeking relief, in claim one, for copyright infringement. On April 11, 1988 plaintiff’s application for registration of the ‘Wednesday’s Child’ segment was received by the United States Copyright Office.”
KCNC argued “that its work was published, defendant’s infringement commenced prior to registration, and that the work was registered within three months after publication. Plaintiff concludes that it is entitled to extraordinary damages…
Although “a transmission is not a publication,” KCNC contends “that it ‘continuously offers videotapes to the public including the “Wednesday’s Child” segment’”. (Inner quotation from KCNC brief.) “KCNC would have this court believe that its ‘extensive and systematic public offerings’ amount to publication.
“Plaintiff’s argument fails because plaintiff has not provided specific facts that would, if proven at trial, establish that ‘Wednesday’s Child’ was published… .
“The record contains a certificate of copyright registration for ‘Wednesday’s Child’ which… includes a section which allows an applicant to specify the date and nation of first publication if the work has been published. This section has been left blank, indicating that the work was not published.
I note that [KCNC], in an attempt to plug another hole in its publication argument, has, without leave of the court, filed on December 20, 1988 at 4:50 P.M. a brief [which] [a]ttached thereto is a copy of an ‘Application for Supplementary Copyright Registration’ completed by the plaintiff on December 20, 1988 in which plaintiff purports to correct the omission of the date of first publication. Plaintiff’s eleventh hour effort is unappreciated and unavailing. First, I have no basis upon which to conclude that this form has been received by the Copyright Office. Second, upon receipt, the Copyright Office will, according to Form CA, issue a certificate of Supplementary Registration which will not have the effect of expunging or cancelling the previous registration… . ‘The supplementary registration will have the effect of calling the public’s attention to a possible error of omission in the basis registration.’ [Inner quote from Form CA.] Consequently, the prima facie effect of the registration as it relates to the issue of publication will be neutralized because it will contain conflicting statements of facts.”
Returning to whether there had been publication: KCNC’s “assertion that plaintiff has extensively offered ‘Wednesday’s Child’ for public sale is refuted by the deposition testimony of Roger Ogden, KCNC’s general manager, and Jean Cameron, administrator of plaintiff’s G.E. Video Production Center. Both stated, in regard to the usual operating procedure of Aircheck 4, that the client always initiates contact. Furthermore, Cameron admitted that she was not aware of any instances in which KCNC had solicited clients for any of its Aircheck 4 product.”
The law requires more than that. “The statute provides that publication may occur by distributing copies of a work to the public or by offering to distribute copies. The offering must be made to ‘a group of persons for the purpose of further distribution, public performance, or public display… .’ (emphasis added). Plaintiff’s brief in opposition conveniently stops quoting the statute where my emphasis, above, begins, suggesting that the offering need be made simply to a group of persons. Certainly, Congress would have shortened the definition to plaintiff’s version, had it not intended to qualify the definition by requiring that the offering be made for one or more of the specific purposes provided.”
The fact that “Wednesday’s Child” was pretaped meant that it was fixed prior to transmission. “Plaintiff contends and defendant does not refute that both [KCNC’s and the defendant’s videotape] copies contain a live on-the-air lead-in by an anchorman and a prerecorded segment describing the Wednesday’s children.” From this KCNC “tries to bootstrap the ‘Wednesday’s Child’ segment into a live performance by claiming that the lead-in somehow turns a pretaped segment into a live one… . [Yet] the copyrighted work was a pretaped segment. The live lead-in does not change this fact.” Had KCNC convinced the Court that “the videotape is a single work, first fixed simultaneous(ly) with its transmission,” penalties for violation of “a live performance” might have been won.
(The decision ends with a statement that, “Plaintiff may still be entitled to other remedies ordinarily available to infringement cases”. The decision hints that, for KCNC to win, it would have to file for infringement of an unpublished, performed work, although penalties were lower.)
In reaching a decision as to whether Silverman was entitled to create a Broadway musical based on the characters of Amos ‘n’ Andy against the wishes of CBS (which held copyrights on post-1948 Amos ‘n’ Andy radio scripts, although the pre-1948 ones had fallen into the public domain), the Appeals Court remarked almost in passing on the television programs (originally broadcast 1951-1953): “the District Judge [1986 case] noted that CBS had obtained copyright registrations and renewals for the televised programs (which were fixed in the tangible medium of film or videotape). He then rejected Silverman’s claim that CBS had placed these telecasts in the public domain by publishing them without copyright notice. Recognizing that broadcasting the television programs was not publication, Silverman had nevertheless contended that CBS had made sufficiently broad distribution of the programs to constitute publication by reason of the distribution of copies of the programs to affiliate and non-affiliate stations.” Whether this occurred in post-network syndication was not addressed, but this court “ruled in any event that distribution of copies for ‘synchronized national broadcast’ was not a general publication.”
The Appeals Court added little regarding “the validity of the CBS copyrights in the television programs. The validity of those copyrights appears to turn on the precise factual circumstances surrounding the distribution of the television programs, and those circumstances have not been sufficiently developed on this record.” That decision would have to wait, and wouldn’t affect outcome of trial. (EDITOR’S NOTE: Readers of this web site should look at decisions regarding other filmed televisions series, as those decisions often address whether the Copyright Law definition of “publication” has been met. What would be applicable here is: “The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” (emphasis added))
(A thorough summary of this case is under underlying copyright.)
Cases Summarized in Other Sections
|The answer to the question as to whether a particular movie has been “published” (in the legal sense) or merely has been “performed” since its first availability to the public, can govern the determination of whether that movie came to forfeit its copyright protection through failure of registration, failure to include copyright notice, or other defect. The first case summarized below (which is categorized in this web site under “first sale” cases) deals tangentially with situations whereby motion pictures from major studios were found to have had copies sold (thereby giving evidence that the works were “published”) even though the studios argued otherwise. Readers of this web site who want to learn more about how the status of “unpublished” can change to “published” while the copyright owner possibly fails to see the change in status, should carefully read the summary of this decision. As always with court decisions, those intending to make commercial use of such information should obtain and read the entire opinion issued by the court.
American-International Pictures, Columbia Pictures Industries, Metro-Goldwyn-Mayer, Twentieth Century-Fox, Walt Disney Productions and United Artists vs Evan H. Foreman [dba 16mm Filmland], et al (launch this) concerns a film dealer who was legally authorized to resell old movies which the studios normally rent rather than sell. The court’s decision took notice of specific language in the studio contracts which communicated that the film prints in question had been sold.
Paramount Pictures Corporation vs Carol Publishing Group, et al (launch this) concerned a publisher who argued that Paramount’s failure to exercise its rights in Star Trek made the episodes fair game for extensive use of material to be incorporated into a book. The defendants sought recognition of a new doctrine comparable to limited publication.
Richard Feiner and Co. vs Passport Productions, Inc. and Diamond Entertainment Corp. (launch this) was a suit over unauthorized use of comedy scenes excerpted from coming-attractions trailers that the copyright-holder contended had not been published.
The Compendium of Copyright Office Practices is an internal document used by the Copyright Office to guide Office employees in their work. The 1970 edition states:
“Publication of a motion picture is generally deemed to have taken place when prints of the film are placed on sale, sold, distributed to the public, or distributed to film exchanges, film distributors, exhibitors, or broadcasters under a lease or similar arrangement.
“Examples of publication:
“(1) Prints of a ‘public service’ film are sent out free of charge to various television stations for exhibition.
“(2) Prints of a theatrical film are sent out to distributors for rental to exhibitors.
“Mere public exhibition or performance is not generally regarded as publication of a motion picture.
“(1) ‘Preview’ of a film to test audience reaction.
“(2) Performance of a film on television.” (pgs. 2-47 and 2-48, in 2.14.2, item I)
The Copyright Registration and Renewal Information Chart and Web Site
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