Re: Loss of Amos and Andy copyright?

From: Leslie A. Kurtz <lakurtz[_at_]ucdavis.edu>
Date: Mon, 27 Apr 1998 10:59:04 -0700

On 4/24/98, Lee Hamovitz <ldh[_at_]loop.com> wrote:

>

> A few years ago, I believe, there was a court decision, (possibly
> Supreme) regarding CBS, Inc. losing copyright to the old "Amos and
> Andy" characters. I think CBS claimed they felt the shows were
> racially offensive, so they kept them locked up in the vault, and
> sued when a theatrical stage producer tried to revive the characters.
> The court, I believe, ruled that CBS lost rights to the characters
> because they had done nothing over the years to proclaim their rights.
> In other words, they should have actively said "we own this and
> purposely aren't using it."
>
> My question, this is all fuzzy and deep in my memory and I'm not sure
> I'm not imagining all this. I've searched all over and can't find
> anything. Is there an actual case like this? Does anyone have a
> citation? Please respond to me personally, as well as the list.

I think the case you are referring to is Silverman v. C.B.S., 870 F. 2d 40 (2d Cir.), cert. denied, 492 U.S. 907 (1989). The court did not say that CBS lost its copyright because it did nothing with the characters. Indeed, the owner of a copyright is not obliged to do anything to maintain its copyright.

Silvewrman wrote a script for a broadway musical comedy based on the characters Silverman Amos and Andy. Although the copyright had expired on the radio scripts, the television programs were still under copyright. The district court found that the characters that were in the public domain in a literary work (the radio scripts) were protectible under the copyright in the audio-visual presentation. The visual representations of the characters in the television program went beyond the word portraits in the public domain scripts and were therefore protected. The duplication of the characters as they appeared on television would infringe the CBS copyrights. The district court appeared to protect all elements of the audio-visual characters, whether they were derived from the public domain scripts or not.  

The court of appeals found this approach unjustified, stating that the CBS copyrights protected only additional expression beyond that contained in the public domain radio scripts. The Amos 'n Andy characters were sufficiently delineated in the public domain scripts to have been placed in the public domain along with the scripts. Silverman was entitled to use this public domain material. But he was not entitled to use any further delineation of the characters contained in any script or program still protected by copyright.

Leslie A. Kurtz
<lakurtz[_at_]ucdavis.edu> Received on Mon Apr 27 1998 - 19:01:14 GMT