Re: Personal vacation film produced

On 98-06-11, Susan Mann <mann[_at_]jsdks.com> wrote:
>
> 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.
 

The article is 'Global Use/Teritorial Rights: Private International Questions of the Global Information Infrastructure,' 42 J. Copyright Society 1995, 318. [couldn't find it on the Internet], by Jane C. Ginsburg.

In another article dealing with conflicts of law (Paul Edward Geller, Conflicts of Laws in Cyberspace: Rethinking International Copyright in a Digitally Networked World, 20 Colum.-VLA J.L. & Arts 571 (1996)) [not on the internet, either], the author opines that art 5 of Berne provides a choice of law rule:

"the Berne Convention, specifically article 5(1) in the Paris Act, imposes the principle of national treatment. This principle requires that courts govern copyright claims in Berne protected works by choosing the law of the Berne country where protection is sought" Elsewhere, he repeats: "Berne national treatment entails the choice-of-law rule applying the laws applicable in countries where infringement takes place."

Then, the solution to the hypo of the personal vacation film would be to apply US law (as many on this list have resolved) since it's the country where the infringement takes place and where protection is sought.

FYI, Geller proposes in the article a solution for complex cases of transborder infringement in cyberspace. He submits that the goal set out in the Berne Preamble, ---protecting author's rights 'in as effective and uniform manner as possible'-- suggests the following principle: apply the law best protecting the work at issue. Thus, he concludes that when dealing with a transborder infringement, where the protection to be sought involves more than one country, the applicable law should be that of the protecting country/s where judicial remedies take effect.

He gives the example of a colorized Buster Keaton movie (in the public domain), that the infringer loads into a server in the US. End-users in the US may access it for free while in France and Germany they have to pay with credit card. Keaton's successors in interest sue the infringer in the US asking the court to enjoin defendant from making this work available from her server in the US. But there is no remedy in the US since the work is in the PD and no moral rights exist to prevent such colorization. But Geller argues, that this US court would apply the laws of France and Germany (which recognize eternal moral rights) to protect the work in each of these other countries. The US court would issue an order that allowed the transmission of the work within the US, but banned it to France or Germany users. French and German law would provide the substantive bases for the order (moral rights of authors), while US law would provide the procedural bases for granting and executing that order. The court could also award damages for reputation and market lost in France and Germany.

Among other sources, Geller cites 3 cases in his discussion:

-US decision.London Film Production Ltd. v Intercontinental Communications Inc. 580 F. Supp. 47 (SDNY 1984) (court rejects argument that it should not exercise jurisdiction over infringement claims subject to foreign laws because it could not properly apply these laws)

-US decision.Reebok Intl v Marnatech Enterprises, 970 F.2d 552 (9th Cir. 1992) (on basis of preliminary showing of transborder trademark infringement from Mexico to US, court freezes alleged infringer's bank account in the US)

-French decision. Hersocovici c. Societe Karla, Trib. gr. instance Paris, 23 May 1990, RIDA 1990, no.146, 325 (Frecnh court issues remedies against infringing use of Magritte picture on sweaters made in Italy under Italian law and sold in France under French law)

CF Ludena
<Ludena[_at_]aol.com> Received on Sun Jun 14 1998 - 01:07:26 GMT