Re: Personal vacation film produced

On Tue, June 09, 1998, Harold Federow <hfederow[_at_]u.washington.edu> wrote:
>
> On Fri, 5 Jun 1998, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > On Thu, 4 Jun 1998, Buford Terrell <terrell[_at_]gateway.stcl.edu> wrote:
> > >
> > > No way this can be work for hire without a written agreement to that
> > > effect. Speciality Inc. has the copyright here and duplication
> > > would be an infringement, although the question would really be
> > > determined by Mexican law, not U.S.
> >
> > This is an interesting question. Certainly, under the applicable
> > Berne Convention principle of national treatment, the issue of
> > infringement is decided under U.S. law, because it's dealing with
> > the infringment in the U.S. of the U.S. copyright (and presumably
> > in a U.S. court).
> >
> > However, in this case, all authorship activities took place in Mexico.
> > What law is applied to determine who owns the resulting U.S. copyright?
> > The law of the nation where the authorship took place, or the law of
> > the nation whose copyright is being enforced, and that is enforcing the
> > copyright? Berne Article 5 isn't particularly helpful on this point.
>
> It's a beautiful day in Seattle and it has an effect on us, so perhaps
> I'm missing something here:
>
> Isn't the US copyright based on ownership of the Mexican copyright under
> Berne? So wouldn't you have to look to Mexcian law to decide who owned
> it and, therefore, who had the US copyright?

The Berne Convention offers no general choice of law rule governing ownership of copyright. It does, however, establish a choice of law rule governing ownership of copyright in a cinematographic work. Article 14bis(2)(a) provides that "ownership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed."

It would appear that in an infringement action brought by the Mexican makers of the vacation film in U.S. court, the question of ownership of the copyright would be evaluated applying U.S. law (probably no work for hire if no written work for hire agreement was entered into). But if the work in question were a book rather than a movie, Berne has no clear answer. One could argue that the rule in Article 14bis reflects an unstated rule of general application. Or that the law of the country of origin should be applied as to all works except motion pictures. These arguments are discussed in an excellent article by Prof. Jane Ginsburg on copyright choice of law and the internet which recently appeared in the Journal of the Copyright Society. Sorry but I don't recall which volume.

Susan Mann
<mann[_at_]jsdks.com> Received on Tue Jun 09 1998 - 15:10:46 GMT