Post Mortem Moral Rights Needed in the US?

The WSJ has an article about posthumous novels. New books by Vladimir Nabokov, William Styron, Graham Greene, Carl Jung and Kurt Vonnegut will be sold this fall.

Two Michael Crichton novels will be published in 2010. Mr. Crichton had finished one before he died in 2008, but he had only written “about one third” of another novel, according to the NY Times (assuming that it was measured by comparing the length of the other Crichton novels). One of these novels was discovered by Mr. Crichton’s assistant, on the writer’s computer. But did Mr. Crichton intend to distribute this work as is to the public? Who has the right to decide? Should this novel be published?

Does the law give us an answer? According to § 106 (3) of the Copyright Act, the owner of copyright has the exclusive rights to distribute copies… of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

§ 106A gives only to authors of works of visual art rights to attribution and integrity (so Nabokov has no droit moral under US law:

(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art

(1) shall have the right (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.

Vladimir Nabokov had instructed his family to burn his final novel, "The Original of Laura" after his death. The WSJ article explains that Mr. Nabokov “had sketched out the novel on 138 index cards, a process he used to write "Lolita" and other works. Nobody, not even Mr. Nabokov's son and literary executor, Dmitri Nabokov, knows the exact order the author intended for the cards.” Yet, this novel will be published soon, after Dmitri Nabokov finally decided to authorize it. Could it be considered “prejudicial to his honor or reputation"? In France, the droit moral of the author is perpetual, and survives the author.

In the U.S., the Second Circuit had seemed in 1976 to grant a moral right to a writer. In Gilliam v. American Broadcasting Co., the appellant had claimed that ABC had mutilated their original work and consequently had violated the Lanham Act § 43(a), and that ABC misrepresentation had injured the plaintiff's business or personal reputation.

The Second Circuit followed this argument and held that when “a television network broadcasts a program properly designated as having been written and performed by a group, but which has been edited, without the writer's consent, into a form that departs substantially from”, "to deform his work is to present him to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done." “In such a case, it is the writer or performer, rather than the network, who suffers the consequences of the mutilation, for the public will have only the final product by which to evaluate the work.”Thus, an allegation that a defendant has presented to the public a "garbled," distorted version of plaintiff's work seeks to redress the very rights sought to be protected by the Lanham Act, 15 U.S.C. § 1125(a), and should be recognized as stating a cause of action under that statute.”

The Second Circuit explained that "American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors. Nevertheless, the economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law (…) cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent. Thus courts have long granted relief for misrepresentation of an artist's work by relying on theories outside the statutory law of copyright, such as contract law, (…)or the tort of unfair competition (…) Although such decisions are clothed in terms of proprietary right in one's creation, they also properly vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form."

Is presenting an unfinished novel to the public a misrepresentation? What about having another writer finish the novel of a deceased author?

Should the U.S. grant perpetual moral rights to all authors? Or would it be prejudicial to creativity? Great article by Amy M. Adler arguing against moral rights available on SSRN here.

Recipes and Copyright

I wrote a while ago about this case... Thanks to the Trademark Blog, I found the link to the decision.

The SDNY found no copyright infringement.

The plaintiff acknowledged that "individual recipes do not necessarily qualify for copyright protection" (page 13). Pursuant to 17 USC § 102 (b), "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." The Defendant's book does not incorporate the text of specific plaintiff's recipes. For instance, defendant recommended using avocado puree as an ingredient for chocolate pudding, as advocated by the plaintiff. This is a process. So is using sauerkraut in a chocolate cake.

Plaintiff also aknowledged that camouflaging vegetables in children's favorite foods is an idea, and thus not protectible by copyright. Plaintiff tried to claim protection for making the purees in advance, and storing them for future use, but the SDNY found this too abstract, and is merely an idea, hiding veggies in food liked by children. Not a new idea... According to the Court, "Plaintiff's inclusion of process details, primarily focused on time-saving techniques, is insufficient to transform an unprotectible idea into a copyrightable expression of that idea."

WTO Trade Ruling: Antigua May Sells Copies of US Copyrighted Works

The New York Times reports that the WTO ruled this week that, as a compensation for the loss of online gambling revenue due to the US blocking such gambling, Antigua may sell copies of U.S. copyrighted works.

A new GWTW sequel (authorized this time)

Stephen L. Carter reviews in the New York Times Rhett Butler’s People, the new authorized Gone With the Wind sequel, written by Donald McCaig. The book has for central character Rhett Butler, who probably will not be portrayed as having an having with Scarlett half sister, born from the ancillary love of Gerald O'Hara and Mammy, as portrayed in the Wind Done Gone. The author, Alice Randall, won the suit brought by the Trustees of the Mitchell Estate, claiming copyright infringement.

As Professor Carter remind us in his article , in the original Michell book, Mr Kennedy, one of Scarlett's husband, dies in an ambush as a Klan man, during an expedition set to avenge Scarlett's honor (she has been attacked by a black man.) The suit was a copyright infringement suit. Would have it gone another route if the trustees would have sued for trademark infringement, and disparagement? It would have been difficult to prove disparagement (by miscegenation? Fortunately, these laws have been repealed...) of a character, Rhett Butler, while shown in the original book risking his life to save revenge-hungry Klan men...

Rhett Butler and Scarlett O'Hara are registered trademarks. Turner Entertainment Company has the right to use "Rhett Butler' and 'Scarlett O'Hara" as a mark for "Toys and sporting goods, including games and playthings--namely, action figures and accessories therefor; plush toys; balloons; bathtub toys; ride-on toys; equipment sold as a unit for playing card games; toy vehicles; dolls; flying discs; electronic hand-held game unit; game equipment sold as a unit for playing a board game, a card game, a manipulative game, a parlor game and an action type target game; stand alone video output game machines; jigsaw and manipulative puzzles; paper face masks; skateboards; ice skates; water squirting toys; balls--namely, playground balls, soccer balls, baseballs, basketballs; baseball gloves; swimming floats for recreational use; kickboard flotation devices for recreational use; surfboards; swim boards for recreational use; swim fins; toy bakeware and toy cookware; toy banks; toy snow globes; and Christmas tree ornaments. "

Indeed, the Margaret Mitchell Museum sells Christmas ornaments, and other GWTW items. Scarlett O'Hara base ball gloves? More unlikely.. The ball is high, the ball is gone with the wind, home run by ... , does not sound right somehow...

Avatar Sued in Real World?

John Doe, in this copyright infringement case, may have been identified.

Recipes and Copyright Infringement

Via Gothamist, are there substantial similarities between the book written by Jessica Seinfeld and the book written by Missy Chase Lapine? And, by the way, can recipes be protected by copyright? According to the the U.S. Copyright Office, "mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection."

And, oh, modesty set apart, I have been cooking vegetable puree for a decade. I will post the recipe soon, or post a link to my cooking blog.

What Happens in the Public Domain Must Stay in the Public Domain

Interesting commentary on Wired on Golan v. Gonzalez, by Jennifer Granick, who was recently appointed civil liberties director at EFF. Complete decision here, on Lawrence Lessig's blog.

Plaintiffs had challenged the constitutionality of § 514 of the Uruguay Round Agreements Act (URAA), codified at 17 USC §§ 104A, 109, which had removed some works from the public domain.

The court ruled that "the URAA transformed the ordinary process of copyright protection and contravened a bedrock principle of copyright law that works in the public domain remain in the public domain. Therefore, (...) § 514 has altered the traditional contours of copyright protection."

Ringtones &Compulsory Licenses

The Copyright Office has decided that ringtones are digital phonorecord deliveries and are thus subject to statutory licensing under 17 U.S.C. § 115, as long as they are "merely excerpts of a preexisting sound recording". Ringtones containing additional material may be considered derivative works, which are outside the scope of 17 U.S.C. § 115.

The Copyright Office also decided that "a ringtone is made and distributed for private use even though some consumers may purchase them for the purpose of identifying themselves in public". It is an important point, as section 115 allows compulsory license only if the primary purpose of the person obtaining the license is to distribute them to the public for private use. Any person who had to listen to a stranger's intimate cell phone conversation, while sitting next to him on a park bench, knows that many consider talking on cell phones as being part of their private sphere. Copyright law and Privacy law differ here: we have no expectation of privacy in cell phones conversations made in public, yet our ringtones are private performances...