Re: Coipyright in the Hollywood Sign

On Wed, 15 Jun 2005, R.G.McCracken wrote:

> I'm hoping that US colleagues on the list may be able to help with
> advice on a recent request to pay licensing fees for use of a photograph
> of the Hollywood sign.
>
> My university is a distance teaching university in the UK and we host an
> open web site on which we place educational and general interest content
> for access by members of the public.

My first take is that the act that is claimed to be infringement is occurring in the UK. US copyright law is, for the most part, not extraterritorial. Therefore, I would say, the question is not one of US copyright law, but rather UK copyright law.

> Is this the case, and does US legislation permit licensing of this kind?
> Under UK copyright law works of art displayed openly in public places
> may be photographed freely and a similar photograph in the UK could be
> used without licence.

Given my belief that UK copyright law controls here, if this is a correct description of UK law, I would say the alleged copyright owner is out of luck.

But even under US law, this sounds lame to me.

Let's think this through. The sign was built (as "HOLLYWOODLAND") in 1923. But when was it protected by US copyright, assuming it was? Well, under the laws then in effect, copyright would subsist as soon as it was either published with a copyright notice or registered with the Copyright Office. My expectation was that it was probably published (in the form of photographs) not long after it was built. Let's assume 1923.

I'm willing to bet that many of those photos did not include a copyright notice, which would have placed the work (if it is indeed a work) into the public domain.

But let's assume that there was a notice, in 1923. In that case, it would have had a 28-year copyright, extending to 1951. Upon renewal, it would have obtained what eventually turned into a 67-year second term, to 2018.

So, assuming the sign is a work subject to copyright, it would have a copyright only if publications of it included a copyright notice, and it was properly renewed.

Even then, until March 1989, published copies would have to include a copyright notice, and I'll bet many did not.

What if it were never published? I kind of doubt that, but if that happens to be the case, the sign would have been protected under state copyright until 1978, when federal law preempted copyright for unpublished works. In that case, it would have been protected for life of the author + 70 years (which would mean until at least 1993, assuming that the author didn't fall off the sign and kill himself[1] as soon as it was completed), or since my guess is that this is a work made for hire, 120 years from creation, to 2043 (or maybe 2047, if it was first published between 1978 and 2002, but let's ignore that. 2043 is close enough for our purposes).

So... We have a copyright if an only if:

1. the work was published with a copyright notice (or registered with the CO), and renewed within 28 years, and all publications of the sign carried a copyright notice, at least through 1989; or
2. the work was never published prior to 1978.

There are some other possibilities; for example, if somehow the work remained unpublished for 41 years, and was first published in 1964 or later, no formal renewal would be necessary, but those are unlikely. If publication of a photograph of the sign is a publication of the sign, it's likely that that happened not long after its construction.

Both of those seem unlikely to me.

I'll also note in passing that US copyright law has a provision similar to what you describe in UK copyright:

> Under UK copyright law works of art displayed openly in public places
> may be photographed freely and a similar photograph in the UK could be
> used without licence.

Section 120 of the US copyright law has a provision like this, but it only applies to architectural works, and I don't believe that the Hollywood sign qualifies.

Section 113(c) also includes an exception that allows certain depictions of useful articles that incorporate the work, but the sign itself is not a useful article within the meaning of the copyright act.

So, ultimately, under US law, I think this issue turns on whether the work is copyrighted; and we'd need some specific information about dates of publication and renewal to definitively answer it; but it does sound lame to me.

By the way, an interesting view of the sign is here, courtesy of Google maps: http://perljam.net/gmap/1375

[1] Apologies to Peg Entwistle. Received on Thu Jun 16 2005 - 02:05:30 GMT