RE: Artists, Museums & Copyright??

On Mon, 23 Sep 2002, Dave Green wrote:

> (2) The work was a foreign work that fell into the public domain due to
> publication without proper notification, and may have been restored
> under the recent restoration provisions. This can be confirmed online at
> the LOC.

Just as a point of clarity, under the present text of section 104A, restoration of copyright, for those works eligible, is automatic, and does not require a filing with the Copyright Office. The copyright can be asserted against any party other than a "reliance party" (briefly, a person whose acts prior to restoration would have been infringing had the work been copyrighted, and who continues to engage in those acts after the copyright is restored) without any filing, either with the Copyright Office or otherwise.

Only as against reliance parties, a "Notice of Intent to Enforce" must be served prior to enforcement. The notice can be effected by filing in the Copyright Office within 24 months of the work's restoration (which, for most works, would have been when the URAA took effect in December 1994; 24 months is long gone); after that period is up, the notice can still be served, but only by serving the reliance party itself.

So checking with the Copyright Office is not a foolproof check -- it will only capture those restorations where the owners were sufficiently sophisticated and informed to make the necessary filings. Someone waking up now and finding themselves to be the owner of a restored copyright can still enforce it against anyone but reliance parties without any problems; and against reliance parties by serving them with the NIE.

If I recollect correctly, the old section 104A, as added by NAFTA in 1993 or so, did have a requirement that the filing be made with the Copyright Office; but that provision was only around for a year or so and is no longer in effect.

-- 
Terry Carroll        |
Santa Clara, CA      |   "The parties are advised to chill."
carroll[_at_]tjc.com      |       - Mattel, Inc. v. MCA Records, Inc.,
Modell delendus est  |         no. 98-56577 (9th Cir. July 24, 2002)