Re: droit de suite

On Sun, 9 Apr 2000, Colin Seeger <seeger[_at_]ozemail.com.au> wrote:
>
> Evidence of a bona fide attempt to find the owner will be a powerful
> defence to any claim for damages should an owner pop out of the
> geriatric home or the corporate graveyard.Given evidence of good faith
> dealing, the appropriare remedy should be commercial royalties rather
> then apunitive damages but our US friends may have a different view of
> the US legal system's response to that situation.

If the term of copyright were set to a shorter, more reasonable term, a "powerful defence" would be less likely to be needed at all.

One example of a case in which a rather weak claim prevailed in district court is George v. Victor Talking Machine Company, 17 USPQ 133 (D.N.J, 1933), 20 USPQ 107 (3rd Cir., 1934), 293 U.S. 544 (1934), 293 U.S. 377 (1934), 38 USPQ 222 (D.N.J, 1938), 42 USPQ 346 (3rd Cir., 1939), certiorari denied 308 U.S. 611 (1939), rehearing denied 308 U.S. 638 (1939), 309 U.S. 693 (1940). This was not a copyright case but a right-of-first-publication case. Some of the principles involved are similar, though. It is true that the decision was overturned by the court of appeals. It is also true that the litigation dragged on for nine years mainly due to a procedural error on the part of defendant's counsel. But Victor had found, and paid, the true author of the words to "The Wreck of the Old '97". They should not have been troubled by the false claim at all.

A copyright case in which a false claim was brought was Southern Music Publishing Company, Inc. et al. v. Bibo-Lang, Inc. et al., 26 USPQ 321 (S.D.N.Y, 1935), 26 USPQ 324 (S.D.N.Y., 1935). The plaintiffs claimed original authorship of the song "Home on the Range". It took a months-long investigation to turn up the evidence that the claim was false. Some of the evidence was the sworn testimony of very old people. If the case had been brough a few years later, these people would have been dead. A defence of laches might have been granted if the defence had known of the existence of these witnesses and had been able to convince the court that their testimony would have been crucial to the defence. Possibly, though, the defence would never even have known of their existence if they had died. I'm not a lawyer, (and of course, this is not legal advice, does not establish a lawyer-client relationship, etc.) but it seems to me that laches is a chancy defence, and that one will have spent a good deal of money just getting to where such a defence would be asserted, anyhow.

Tenuous claims of copyright might be hard to bring and hard to win, but the laws of statistics argue that the longer the term of copyright, the greater the chances that someone will be troubled by a "submarine copyright" from the long-dead past, and the greater the chances -- even if still small -- that such a claim will prevail.

I note also that the library of Congress, for one of its microfilming projects, found that it was unable to find many copyright owners and that it had to rely on 17 U.S.C. 108, a portion of the law available only to libraries.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Tue Apr 11 2000 - 12:24:29 GMT