On 3/4/98, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> It's less than clear, but I think you have to read the opinion to
> conclude that while the advertisements may be protected by (someone's)
> copyright, the plaintiff _in this case_, who did not author the ads,
> cannot claim infringement _of the plaintiff's collective work_ based
> on defendant's replication of the ads collected in that work. Under
> 404(a) the copyright _in the collective work_ does not extend to the
> advertisements. The ads are still protected by copyright, and the
> owners of the copyrights in those ads could claim infringement. (But
> why would they -- they a got a free listing in a second directory.)
> It makes sense if you think about it.
That may or may not make sense assuming that is what the majority said, but it is not. The majority said that the ads were not protected and could be copied; in other words, they had no copyright. The majority did not address the issue of who could bring an action:
"Treating the yellow pages advertising as creations that are something more than compilations of facts, we hold that under 17 U.S.C. Sec. 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."
Transwestern Publishing Co. v. Multimedia Marketing Associates, Inc., 1998 U.S. App. LEXIS 229, *23 (10th Cir. 1998).
Now, maybe you are saying that what they said and what they meant are two different things, but I'm gonna hold them to what they said.
The concurrence, though, puzzles me on one point. Judge Briscoe's analysis of whether the notice is required or not is fine, but he does address the issue of registration before suit, and he says that other courts have held that a registration of the entire work satisfies any section 411 issue with respect to the constitutent parts as long as the owner of the collective work also owns the copyright to the constitutent parts:
"These cases are supported by the leading treatise on copyright law, which suggests separate copyright registration is not necessary where the author of a collective work is also the author of individual works contained therein."
Id. at *29 (Briscoe, J., concurring).
But here the plaintiff did not own the copyrights to the ads. In the very beginning of the opinion it says:
"Although they did not create original artwork [of the ads], the account executives arranged information so that it was 'pleasing to the eye.'"
Id. at *2.
So, my assumption is that what Judge Briscoe meant was that *if* one found that the plaintiff did own the copyright to the ads, then he wouldn't have to separately register them to sue. But then they wouldn't fit the parenthetical definition in section 404(a), so I find that part of the discussion somewhat puzzling.
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