Wednesday, December 12, 2012

Copyright nonsense of the day

The Pioneer Girl website, which says "As always, any redistribution, reproduction  or translation of part or all of the current or past contents of this site in any form is strictly prohibited. You may not distribute or commercially exploit the content, nor may you transmit content to or store it in any other website or other form of electronic retrieval system." -- I particularly like the "as always."  The irony is sharper than usual here given the content of the website, primarily a factual account of Laura Ingalls Wilder's unpublished memoir and drafts of Little House books, with directions about how to get the microfilm copy thereof.  I wonder about the copyright status of the drafts, which the site says differ from the published versions.  These seem published (microfilmed and distributed); were they registered?  The registration of the final versions wouldn't necessarily cover the earlier drafts.

ETA: Post edited because Pamela Chestek points out that the rule in Streetwise is that the registration does cover earlier versions, at least when the same entity owns both (which seems likely to be true of the Ingalls books, assuming the estate terminated any earlier transfer).  But some courts have read Streetwise to cover only situations where the registration specifies the earlier works of which a registered work is a derivative, and I doubt that's the case here.


Pamela Chestek said...

I disagree with your last sentence; Streetwise says otherwise: "On the contrary, because Streetwise is the owner of the copyright of both the derivative and pre-existing work, the registration certificate relating to the derivative work in this circumstance will suffice to permit it to maintain an action for infringement based on defendants' infringement of the pre-existing work."

Rebecca Tushnet said...

You're right; I should've mentioned Streetwise--but note that some courts have required the registration to specify the preexisting works in order to apply the Streetwise rule. E.g., Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218 (11th Cir. 2008), I.M.S. Inquiry Management Systems, Ltd. v. Berkshire Information Systems, Inc., 307 F.Supp.2d 521 (S.D.N.Y.2004). It seems unlikely that the registration here would specify the existence of the earlier draft. Compare Batjac Productions Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998), finding that a claimed copyright in an unpublished screenplay couldn't be used to control the final movie (whose copyright had expired)--though the import of that case is arguably ambiguous; the court there was concerned that the copyright in the unpublished/underlying work not be allowed to extend the effective term of the copyright in the work as shared with the public. If the Wilder papers count as published because of their distribution on microfilm, which is likely, and if they weren't published with proper notice (I'm guessing they're pre-1989 just because they're microform), then that concern wouldn't really apply.