Re: droit de suite

On Mon, 10 Apr 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
>
> On Fri, Apr 07, 2000, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > On Thu, 6 Apr 2000, Eric Eldred <eldred[_at_]eldritchpress.org> wrote:
> > >
> > > a class in advertising wanted to reproduce magazine ads from
> > > the 1920s. It was unable to do so because it has now become
> > > impossible to find the copyright or trademark owners -- the
> > > companies have vanished, but their rights linger on.
> >
> > It seems to me that multiple copies for classroom use, combined with
> > a good faith effort to locate and obtain permission from copyright
> > owners who can't be found, comes as close to a zero-risk fair use
> > case as any I've seen. As far as the trademark part of it goes, a
> > three-minute search of the USPTO Trademark Database would have
> > confirmed whether those rights "linger on" or not, and who currently
> > owns them.
>
> Fair enough. I can't speak for the class itself, and your
> interpretation of the law sounds reasonable. I only repeat
> what I read.
>
> However, I would point you to the No Electronic Theft Act
> of 1997, which criminalizes even giving away copyrighted
> works, if they are published on the WWW.

Eric -- call me crazy, but from where I sit, the act of giving away copyrighted works was a breach of copyright law prior to the No Electronic Theft Act of 1997. The Copyright Act of 1976 states that one of the rights of copyright holders is the *exclusive* right to distribute (and by default, also restrict distribution) of their works.

Furthermore, whether or not they are posted on the Web is completely irrelevant, because the choice of where and how to display the work doesn't negate the owner's rights as far as I'm aware of. The web is only one more choice of venue -- nothing more. If CBS broadcasts "The Godfather" on network television next week -- which is a VERY public airing -- that still doesn't give me the right to videotape it, make multiple copies of that tape, and give the copies away to everyone in my town, thereby diminishing potential revenues on videotapes the copyright holder might have sold to my townsmen. Same with the web.

Incidentally, I agree with Robert that the classroom nature of the proposed use of the magazine ads, COMBINED with having tried to obtain permissions (ELEMENTAL qualifier) would tend to lean more in favor of fair use than against. Had no one tried to obtain permissions, I'm not so sure that I'd view that as fair use without further qualification.

Marty Hayes
<9ball[_at_]hostsite.net> Received on Tue Apr 11 2000 - 22:32:19 GMT