Fox Sues Over Reuse Of Public-Domain Documentary

leabre writes " Yahoo! Intellectual Property News is reporting that a small video distributer is being sued (U.S. Supreme Court) over reusing a work (WWII documentary) whose copyright had expired in the 70s, without giving credit to 20th Century Fox on the now public-domain work. What's more, Fox wants the courts to expand the copyright (which it let fall into the public domain more than 20 years ago) so they can recover damages from the distributer... " Read on for more (including several links) about this case. favorite quote: 'Justice Sandra Day O'Connor told Cendali that her client let the copyright lapse for the documentary, in the 1970s, and now wants the court to expand copyright protection so it can recover damages from Dastar. "The defense replies 'It was in the public domain,' O'Connor said. 'Of course they had a right to copy it.'" The outcome of this should be watched closely as it has the potential to further distort our fair use rights. There are more links on EFF , Dept. of Justice, and the Supreme court filing (appeal)[pdf]."

Comments

If these guys win....

[OwnerOfWhinyCat]

It will be because judges can't read, or have been bought. I know Jack Valenti is out their trying to convince the world that we just mad up fair use:
JV: What is fair use? Fair use is not a law. There's nothing in law.

Apparently he hasn't read Title 17 down to section 107. The section titled:

Limitations on exclusive rights: Fair use

But any one who can read that far would also hit [Title 17] section 104 which contains:

(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELI- ANCE PARTY.--As against any party who is not a reliance party, the remedies pro- vided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced on or after the date of restoration.[emphasis mine]

Makes it pretty clear that even if Fox got their copyright restored, that damages for acts prior to that time are clearly unavailable.

I for one hope they get their bottoms spanked in court for this.

Re:They let it expire, and now they complain?

[Danse]

1. You don't need to file for an extension anymore. Congress takes care of that for you, every 20 years.

2. The public domain is effectively dead at this point. Starting in 1998 there will be a 20-year period where no copyrights will expire. If congress decides to extend the term again (and since when have they ever been able to say no to Mickey?), then that drought will continue. The public domain will not grow anymore. The copyright industry is winning the war. The public is losing, badly.

I disagree

[moc.tfosorcimgllib]

This is the equivalent of taking a novel by, say, Charles Dickens, editing it and perhaps adding another chapter, changing the title and claiming it as a new novel written by yourself.

I would say it's more like taking Charles Dickens, rewriting the most common of introductions, then reselling it for a fraction of the cost of a new copy.
Something that Barnes&Nobles does all the time with classic novels.

Re:3. Profit!

[Prior Restraint]

Is copyright something you 'renew'?

It used to be, prior to 1976. The copyright laws used to be that copyright could only be granted to items you registered, and there were two terms. When the first one was about to expire, you could apply for an extension, which was pretty much always granted. It basically was a way to make sure you actually cared enough about exploiting a work to bother renewing it. Nowadays, there isn't a renewal term.

Typical disclaimers: IANAL, this only applies to U.S. copyright law, yada yada yada.

Statement of the case

[angle_slam]

The Yahoo article is very confusing and doesn't give an accurate summary of the case. The title of the Slashdot article isn't accurate either, as Fox isn't suing, they sued a long time ago: the case finally made it to the U.S. Supreme Court, where it was argued on April 2, 2003, with a decision to be expected by late June 2003. The case isn't quite a copyright case, it is a trademark case, with Fox claiming that Dastar is passing the video off as it's own. According to Dastar, these are the questions to be answered by the Supreme Court:

1. Does the Lanham Act protect creative works from uncredited copying, even without a likelihood of consumer confusion?

2. May a court applying the Lanham Act award twice the defendant's profits for purely deterrent purposes?

Here is the Statement of the Case, telling the facts, from the perspective of Dastar:

In 1948, General Eisenhower completed his memoirs of World War II. Pet. App. C at 42a-43a. The publisher, Doubleday, granted exclusive television rights in the memoirs to Twentieth Century Fox, which in turn arranged for Time Inc. to produce a TV series based on the book. Id. at 9a. The TV series, entitled Crusade in Europe, combined a soundtrack based on the book with film footage from the U.S. Army, Navy, and Coast Guard, the British Ministry of Information and War Office, the National Film Board of Canada, and unidentified "Newsreel Pool Cameramen." Id. at 10a, 13a; S.App. 23.

When the time came to renew its copyright in the TV series in the 1970s, Fox failed to do so. Pet. App. C at 49a. Doubleday did renew the book's copyright in its own name, claiming for the first time that General Eisenhower composed his memoirs as a work for hire. Id. at 43a.

By 1988, videotapes had swept the American market, and it was evident that Fox's failure to renew the TV series copyright was a blunder. Fox's cure was to reacquire the television rights in the book - now including the right to produce a videotape. Pet. App. B at 10a. Fox granted SFM Entertainment the right to act as sales agent and distributor of the videotape series. Id. SFM spent $75,000 to locate, restore, and put the TV series on videotape. Id. at 11a. SFM gave New Line Home Video a distribution license for the videotapes. Id.

In 1995, Dastar decided to expand its music business to videotapes. Id. at 12a. Dastar learned that the 1948 TV series was in the public domain, purchased a copy commercially, and copied large parts of the series to make its own videotape series, entitled Campaigns in Europe. Id. at 12a. The court found that Dastar spent over $90,000 on its version. Id. at 19a-20a. Dastar sold the seven-tape boxed set for $25 a set - substantially less than respondents' version. Id. at 19a. Dastar copied from the original TV series, as opposed to the New Line video set. Pet. App. B at 12a-13a; Pet. App. C at 45a.

Dastar's version was a bit more than half as long as the television series, and nearly an hour shorter than the New Line videocassettes. Pet. App. B at 13a. Dastar's product contained about thirty minutes of new footage, including a new narrated opening title sequence and new narrated chapter heading sequences. Dastar also substantially modified the order of the footage it selected from the television series. 9th Cir. Excerpts of Record 1876-78, 1665 ("ER"); Pet. App. B at 13a, 15a-16a. It created entirely new packaging and a new title. Dastar's credits listed only Dastar and those of its staff who actually produced its videos; they did not mention Fox, New Line, or SFM. Pet. App. B at 18a.

Fox, SFM, and New Line filed a lawsuit charging violations of the Copyright Act, alleging infringement of the copyright in General Eisenhower's book (not the expired copyright in the television series).1 In an amended complaint, they added a claim for violation of the Lanham Act, 15 U.S.C. 1125(a)(1) (2000), based on the inclusion of Dastar and its personnel in the credits and the failure to mention Fox and the other res