Matthew,
Sounds like a situation where a dozen lawyers might offer two dozen "opinions", and an equal number of courts may "decide" the same opposing things - they disagree with each other, but if they are lateral courts, then their conflicting disagreements stand, and if they are vertical courts, then the higher court wins. Though, over time, all decisions may be reversed.
My opinion? Neither publication is the ORIGINAL copyright owner. As such, they are republishing according to license and have no presumed authority to re-license or pursue action against other uses of the image, unless they can show an exclusive use license that may be presumed to allow them power to prohibit other uses - but again, that's the copyright OWNER's job, not a licensee's job. However, that's entering into contract law, not copyright law: can any property owner enter into conflicting contracts, who then executes those contracts, and do parties to the separate and conflicting contracts with the original property owner have any power over each other? In other words, if I sell both the New York Time and the Los Angeles Times a supposedly exclusive use of my image, do they sue each other, or me, or what? I suggest they have no power over each other; certainly, my contract with the New York Times cannot be a source of power that the New York Times can then wield over the Los Angeles Times, right? Same here - the publisher of the second book has no authoritative source of power over you using a copy of an image they may think they have exclusive have rights to. Their beef is with the copyright owner, not with you!
I'd say it's up to the owner of the copyright to pursue action against you. If I were you, I'd feel confident that you documented your efforts to resolve this out of court - and that is all I've ever seen a judge ask of plaintiffs and defendants before them. Once in court, even a decision against you should not carry punitive damages considering your good-faith attempt to resolve the issue before asking a judge to resolve the disagreement in the courtroom.
Have at it, and let us know how it goes.
Next - does anyone have any further arguments on the interests of third parties in policing all this?
- Peter Blaise
-----Original Message----- From: commons-l-bounces@lists.wikimedia.org [mailto:commons-l-> bounces@lists.wikimedia.org] On Behalf Of Matthew Brown Sent: Monday, April 09, 2007 6:44 PM To: Wikimedia Commons Discussion List Subject: Re: [Commons-l] Cool tool that lets you check for copyright renewals on books
On 4/9/07, Monahon, Peter B. Peter.Monahon@uspto.gov wrote: I'm not sure I understand the problem in this case. I think the
challenge
is trying to use an unattributed illustration. That [it] happens to
appear in
two different sources encourages at least one person to assume it's
in the
public domain. Have I got it?
The image may or may not be attributed, but the image has no independent copyright registration. In modern, post Berne convention US copyright law, this situation doesn't really apply; everything is 'born copyrighted' and thus the image has an independent copyright.
In the US copyright law that applied through the late 1960s, things were only copyrighted if they were only ever published with a copyright claim and the copyright was registered. This copyright had to be renewed periodically to remain in force. An image would only have a copyright independently if it had been submitted for copyright registration in its own right - photographic studios would periodically register batches of photographs, for instance. Otherwise, a photograph would be copyrighted when published as part of a larger work under that work's copyright.
Since under this system, an image that had been published in several copyrighted works would have no independent copyright, but every published work it was in would be copyrighted; since all publications had been copyrighted, the image itself could be considered to be.
The question is what happens if one or more of those works fell out of copyright due to non-renewal, but others were renewed and remained in copyright. Can the image be copied out of the non-renewed work and considered as public domain due to 'descent' from a now out-of-copyright source? Does it matter which publication, in terms of chronological order of original copyright date, fell out of copyright?
It is known that if the image was copyrighted in its own right, independently, that if a work including it fell out of copyright the image would not. It's also known that if a derivative work falls out of copyright, the copyright of the portions covered by the work from which it was derived remain in force. However, I'm having trouble tracking down any US legal precedent or trustworthy authority on copyright that says what happens in the situation I describe.
-Matt
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