Re: A Little Linguistic Playground

On 03/19/99, Thomas Workman <tworkman[_at_]erols.com> wrote:
>
> On Thu, 18 Mar 1999, Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> >
> > On Wed, 17 Mar 1999, Thomas Workman <tworkman[_at_]erols.com> wrote:
> > >
> > > Folks are missing the point. The law does not permit a copyright to be
> > > "vacated" or revoked. There is no statutory provision for doing so.
> >
> > That is not what the law says. Nowhere in the law says that I cannot
> > put my work in the public domain.
>
> That statement is true. But you still miss the point. The law
> specifies how a work obtains a copyright. When those conditions are
> met, the copyright attaches. Anything you do or say does not "override"
> the law, unless the law provides a specific mechanism for undoing what
> it has done. The statutes provide no mechanism for destroying the
> copyright, except for the passage of the requisite time, or of course
> a subsequent law.
>
> I know of no cases on point, but I would not advise any client to use a
> work without a license from the copyright owner.

It is true that the U.S. Copyright Act currently does not provide a mechanism for placing a work into the public domain other than expiration of the copyright term. However, "estoppel" has been recognized as a defense to copyright. I am confident that if a subsequent author relied on an authorized notice stating that the work was dedicated to the public domain, a court would hold that the first author was estopped to complain.

The more interesting question, it seems to me, is whether the court would hold that such a notice could be revoked, so that it would not create an estoppel as to subsequent authors who were aware of the revocation. In other words, can a copyright be abandoned permanently, or only so long as the author retains the intent not to enforce it?

In the only recent case I am aware of, a district court held that destruction of the original master tape of a news broadcast by a TV station was evidence of abandonment, thereby allowing a video news clipping service to reproduce the broadcast. The Court of Appeals reversed, reasoning that destruction of the master tape evidenced only an intent not to reproduce the work themselves, NOT an intent to allow others to reproduce it. See Pacific & Southern Co. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983), rev'd in part, 744 F.2d 1490 (11th Cir. 1984).

If you have further interest in abandonment, I recommend Robert A. Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights, 58 Mo. L. Rev. 85 (1992). The author argues that permitting an author to abandon his or her copyright might be inconsistent with the provisions of the Copyright Act that forbid an author from waiving or assigning his or her right to terminate an assignment of copyright.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Mar 22 1999 - 23:02:51 GMT