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Re: "GPL requirement could have a chilling effect on derivativedistros"

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivativedistros"
Date: Mon, 03 Jul 2006 20:32:34 +0200


Alexander Terekhov wrote:
> In Mirage, Albuquerque A.R.T. removed pages from a book of artwork
> (for which Mirage Editions owned a copyright), mounted the pages on
> ceramic tiles, and sold the tiles. According to the Ninth Circuit,

> this process created a derivative work of the copyrighted work,
> thereby infringing the copyright. The Court reasoned that
> Albuquerque A.R.T. created a derivative work by incorporating the
> copyrighted work into its product.
> However, Mirage is directly contrary to the Seventh Circuit's more
> recent decision in Lee v. A.R.T.        ^^^^^^^^^^^^^^^^^^^^^
> Scholarly disapproval of Mirage Editions has been widespread.

There appears to be a pattern here (between 9th and 7th).

Despite the fact that sec. 203 was enacted over 20 years ago as part 
of the Copyright Act of 1976, there is very limited case law on its 
interpretation. The only case from a court of appeals is from the 
Ninth Circuit, Rano v. Sipa Press, 987 F.2d 580 (1993).2 Kip Rano 
was a professional photographer who granted a nonexclusive license 
of unspecified duration to Sipa to reproduce, distribute, and sell 
his photographs. The relationship continued for about 8 years; Rano 
then attempted to revoke the agreement and, when Sipa continued to 
sell the photographs, sued for copyright infringement. The court of 
appeals recognized that California law, which was the relevant 
jurisdiction, allowed for termination at will of agreements of 
nonspecified duration and that under appropriate circumstances the 
copyright law allows the use of pertinent state law. However, the 
court said that the "application of this principle of California 
contract law here would directly conflict with federal copyright law" 
so the state law, the court concluded, was preempted. The court then 
interpreted sec. 203 to mean that unless a license explicitly 
specifies an earlier termination date, it cannot be terminated prior 
to 35 years.

To put it mildly, this result is deplored by commentators. If the 
Rano decision were a Broadway show, bad reviews would have forced it 
to close after opening night. Nimmer, for instance, finds Rano a 
"remarkable result," a "wayward result," "stunning, both for its 
utter absence of support in law and for the breadth of its error." 
Nimmer says that the 35-year period in sec. 203 is a maximum period 
that a contract can be enforced, not a minimum as Rano holds. See 3 
Melville B. Nimmer & David Nimmer, Nimmer on Copyrights sec. 11.01 
(1998). William T. Rintala says that the Rano court's ruling turns 
protection for authors into a "windfall for those acquiring rights 
for an indefinite term." William T. Rintala, Copyright Update--
Substantive Law, 379 PLI/Pat at 271, 325-26 (Practicing Law 
Institute, Patents, Copyrights, Trademarks, and Literary Property 
Course Handbook Series, 1994). Yet another commentator calls Rano a 
"ridiculously incorrect interpretation of the statute. It takes a 
provision meant to protect the author and turns it into a 
straitjacket." Mark F. Radcliffe, Copyright Ownership Issues, 411 
PLI/Pat at 243, 300 (Practicing Law Institute, Patents, Copyrights, 
Trademarks, and Literary Property Course Handbook Series, 1995).


Because our decision conflicts with the Ninth Circuit's opinion in 
Rano, it has been circulated through all members of the court in 
active service. No judge has voted to hear this case en banc. [same
as in Lee v. A.R.T.]

He he.


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