Re: Date of First Publication

From: Stephen Fishman <sfish55[_at_]yahoo.com>
Date: Fri, 9 Apr 1999 13:27:19 -0700 (PDT)

On Thu, 8 Apr 1999, David W. Quist <dquist[_at_]worldnet.att.net> wrote:
>
> On Thu, Apr 08, 1999, Stephen Fishman <sfish55[_at_]yahoo.com> wrote:
> >
> > On Tue, 6 Apr 1999, Paul Sleven <psleven[_at_]cybernex.net> wrote:
> > >
> > > Under the 1909 Act, is "first publication" for determining
> > > copyright duration measured from first publication in the US or
> > > anywhere in the world? I had always understood it to be anywhere
> > > in the world, but recall seeing some discussion in the past year
> > > or two of an argument -- I believe involving a James Joyce work
> > > -- that first publication meant first publication in the US.
> > > Does anyone remember that?
> >
> > The 9th Circuit has held that a publication outside the U.S. counts as
> > a first publication for U.S. copyright duration purposes only if the
> > work contained a copyright notice. This case involved publication of
> > the book Bambi in Germany.
>
> So how would the result of that 9th circuit decision play out in
> relation to the automatic restoration provision of 104A?

Under the 9th Circuit's analysis in Twin Books v. Walt Disney, 83 F3d 1162, a work published outside the U.S. without a notice never acquired statutory copyright--that is, it was still protected by common law copyright when the 1976 Copyright Act took effect in 1978. So there was no need for restoration of copyright in these works.

This case is harshly criticized at length by Nimmer (See Sec. 4.01(C)(1) of his treatise) who says that other courts shouldn't follow it. However, it is the law in the 9th Circuit.  

Stephen Fishman
<sfish55[_at_]yahoo.com>

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