Re: Notice on ads in collective works

From: Bob Stock <bstock[_at_]ucla.edu>
Date: Tue, 03 Mar 1998 17:10:18 -0800

On 3/1/98, Darren Donnelly <donnelly[_at_]slip.net> wrote:
>
> The Tenth Circuit in Multimedia Marketing Assoc, Inc v. TransWestern
> Publishing Co. (http://lawlib.wuacc.edu/ca10/cases/1998/01/96-6371.htm)
> recently reached a holding on the benefits of notice for advertisements
> in collective works that I found interesting.
>

[snip]
>
> The court relied on 17 USC @404(a) (as amended after Berne
> implementation) which provides that ads in a collective work do not
> obtain the benefits of a single optional notice on the whole work:
>
> "Treating the yellow pages advertising as creations that are
> something more than compilations of facts, we hold that under
> 17 USC @404(a), the existence of a copyright notice on
> plaintiff's directory is insufficient to prohibit the copying
> of an advertisement from that directory, absent a copyright
> notice specific to the advertisement itself. As the concurring
> opinion states, under the Berne Convention implementation Act of
> 1988, copyright notice is no longer mandatory. This has no bearing
> on our holding regarding 17 USC @404(a), however. Section 404(a)
> has always provided that copyright notice is optional on collective
> works. It defines the scope of protection available to collective
> works when they do contain a copyright notice: the notice invokes
> the protections of @@401(d) and 402(d) with respect to separate
> contributions but not as to advertisements inserted by someone
> other than the copyright owner. Because there is no separate
> copyright notice on the ads allegedly copied, plaintiff cannot use
> this provision to gain protection for the third party ads through
> the existence of a copyright notice for the overall collective work."
>
> The concurring judge agreed that plaintiff could not prove it
> contributed copyrightable expression, but would not bar its claim for
> failure to place notice.

I think the majority got it wrong, and the concurrence got it right with respect to the notice issue. In fact, if you read the majority opinion, it's reasonable all the way through except for the last sentence. You can conclude that the collective work with notice does indeed gain the protection of 401(d) but that the advertisements do not. But so what? Just because the advertisements don't have the added protections of 401(d) doesn't mean that they haven't been copyrighted.

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Bob Stock <bstock[_at_]ucla.edu>
UCLA School of Law '98
http://www.geocities.com/Paris/1206/

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Received on Wed Mar 04 1998 - 01:09:34 GMT