Re: 1909 copyright law (Was: UK copyright term)

On 04/13/99, Timothy Phillips <hrothgar[_at_]telepath.com> wrote:
>
> On April 5, 1999, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > I agree with the analysis of U.S. law. Anything first published in
> > 1922 or before is in the public domain in the U.S.
>
> 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.

Another example is "Black is the Color of My True Love's Hair," which was copyrighted by Stephen Collins Foster, despite claims by many that it was a folk song long before he transcribed it.

> 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.

You may very well be right; it's certainly a reasonable reading of the statute. I'm not convinced, however, that a court wouldn't construe "published" to mean "published with authorization."

> 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?

I don't think that "estoppel by acquiescence" is as disfavored as you suggest. If one could prove that your grandpappy KNEW about the allegedly unauthorized publication, and did nothing about it for years, it might very well result in an estoppel.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Apr 14 1999 - 22:37:47 GMT