Re: Artists, Museums & Copyright??

Not disagreeing with the main contents of your remarks below I think it needs clarification on a couple of points:

1. The situation you describe with "A museum who has continuously used a work of art is likely to be considered a reliance party" - though I have no doubt you know that the start of the "use" must be prior to the enactment of the URAA and the 104A (new version) e.i. 8. Dec 1994 - the absence of this information might misguide some.
2. Please note that no court has yet interpertated the meaning of "continued use" - therefore any temporary cessation of the use might be important to the question of reliance party status - and as you know absent of such status one is an infringer of copyright.

Calle Østergaard

• Original Message ----- From: "Dave Green" <dave[_at_]tech-esq.com> To: "Multiple recipients of list" <cni-copyright[_at_]cni.org> Sent: Saturday, September 28, 2002 1:19 AM Subject: Re: Artists, Museums & Copyright??

> Stephen Fishman wrote:
>
> > You can't confirm this at the LOC. The Copyright
> > Office has on file thousands of NIEs, but these
> > represent only a tiny fraction of all the foreign
> > works that were restored.
>
> Thanks to Stephen and others for confirming the limited usefulness of
> information in the LOC's database. Knowing if an NIE's was filed with the
> copyright office is still relevant for several purposes. First, if an NIE
> was not filed within the copyright office, an NIE still must be filed as
> against a reliance party (see definition in 104A) in order to pursue
> infringement action. Second, the remedies are quite limited as against
> reliance parties (my read of 104A is that no remedies are available for
any
> prior infringements and for 12 months after receipt of the NIE. My guess
is
> that the majority owners of restored copyrights did not file an NIE, which
> requires them to serve actual notice on the reliance party. A musuem who
has
> continuously used a work of art is likely to be considered a reliance part
y,
> which therefore limits their damages for prior infringements (assuming an
> NIE was not originally filed with the copyright office).
>
> > Registration is not required for copyright protection
> > for published or unpublished work. It's needed only to
> > file a copyright infringement lawsuit--and only if the
> > copyright owner is American.
>
> Focusing on U.S. copyright owners/authors, registration is still a vital
> component in claims management. Without registration, attorneys' fees and
> statuory penalties are not available for infringement actions, leaving
> actual damages as the remedy. Proving actual damages (especially where the
> defendant has no profits) can be very difficult, and it is often the
result
> that legal fees will exceed actual damages absent mass infringment.
Finally,
> where issues of public domain, publication, and ownership are in doubt,
the
> lack of a registration can be a strong indicator of the merit of success,
> since the plaintiff is in the position of bearing the burden of proof of
> these issues. I've handled many infringement actions where the ability to
> secure a registration (and the absence of one in hand) severely limited
the
> other party's ability to resolve the case (absent substantial costs or
> risks). Likewise, the presence of a registration often disposed of any
doubt
> come settlement time. Amusingly enough, I just recently finished disposing
> of a case where a party with a registration in hand was forced to abandon
> their claim, since their registration included misleading and false
> information, which doomed their copyright. Registrations, or the lack
> thereof, are powerful tools in any dispute.
>
> Dave Green
> Senior Corporate Counsel, Corbis
>
>
Received on Mon Sep 30 2002 - 11:40:57 GMT