1909 copyright law (Was: UK copyright term)

On April 5, 1999, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:

>

Almost. As others have pointed out, there is the silly Twin Books decision in the 9th circuit. Is a work published overseas in 1922 but subsequently published in the U.S. (e.g. Joyce's "Ulysses") p.d. in the 9th circuit? My point is: even if Twin Books keeps Ulysses under copyright in the 9th circuit, I don't think it could reach to any work published before July 1st, 1909.

Another loophole has to do with whether publication was authorized. Certain easily memorized works, such as songs and anecdotes, are prone to escape their origins and circulate orally. An author who writes a song and teaches it to others has usually not "published" it for copyright purposes. A collector who mistakes the song for a folk song and publishes the song in a collection has technically not "published" the song in such a case, since the author has not authorized publication. This seems to have happened to the words to "Happy Birthday to You." According to one source, the words appear in some song collections of the mid-1920s without attribution. But the words weren't registered for copyright until 1935, and, as I understand, that's when the copyright clock officially starts for those words.

The flip side of this "loss of origin" problem is, of course, the problem of false claims. If the origins of a song are obscure, it is sometimes possible for someone to claim that he, or perhaps his pappy or grandpappy, wrote the song and never authorized its publication. This is what happened to the words to "The Wreck of the Old '97" (George v. Victor Talking Machine Co.). The plaintiff claimed to have written the words but never to have authorized publication. A similar case involved the words and music to "Home on the Range" (Southern Music Publishing Co. v. Bibo-Lang, Inc.) In that case, the plaintiffs were the first to intercept and publish the song from the oral tradition, but they claimed not only to have transcribed and arranged it, but to have written it. In the former case, the courts eventually rejected the plaintiff's claims. In the latter case, the plaintiffs dropped their suit when investigators found old Kansas pioneers who remembered learning the song in the 1870s.

My point about section 7 (later section 8) of the old law is: I think that even a claim of unauthorized publication can't stand against it. If your grandpappy wrote a song and never published it, and if this song nevertheless circulated and was taken for a folk song and published in a song-collection prior to July 1st 1909, then I think it is in the public domain, even though its author never authorized publication. But if your grandpappy's song was not published without authorization until after July 1st, 1909, (but before 1923) then you might have a claim against someone who relies on the pre-1923 date of the song-collection. Your grandpappy's authorship would of course be hard to prove, unless he registered his song for copyright after 1922, in which case the copyright certificate gives prima facie evidence of grandpappy's authorship. In theory a defense of estoppel by aquiescence might be available, but my impression is that courts are reluctant to allow it.

Does anyone have any thoughts on this hypothetical?

Obviously, this post is not legal advice, does not establish a lawyer-client relationship, etc.

Tim Phillips
<hrothgar[_at_]telepath.com> Received on Wed Apr 14 1999 - 03:37:43 GMT