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Why do it?

From: Rjack
Subject: Why do it?
Date: Fri, 15 Aug 2008 07:22:55 -0400
User-agent: Thunderbird (Windows/20080708)

The Second Circuit held:
"Moreover, Graham's failure to credit James with the copyright on the C version did not itself amount to copyright infringement. According to Nimmer, "The generally prevailing view in this country under copyright law has been that an author who sells or licenses her work does not have an inherent right to be credited as author of the work. In line with that general rule, it has been held not to infringe an author's copyright for one who is licensed to reproduce the work to omit the author's name." 3 Nimmer on Copyright, supra, § 8D.03[A], at 8D-3(citations omitted).

The Federal Circuit ruled that a contractual condition in the Artistic license creates a new right to be credited as the author of a work when that work is reproduced or distributed and that failure to do so creates liability for copyright infringement. [The Restatement (Second) of Contracts § 224 (1981) defines a condition as "A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance under a contract becomes due."]

But this new right to be credited is immediately preempted by
17 USC sec. 301:

"301. Preemption with respect to other laws.
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State."

So why create a new copyright and then have it immediately preempted?

Perhaps a bit of Biblical rhetoric is appropriate, "For what doth it profit a man, to gain the whole world, and forfeit his life?"

He. He.


-- "[I]f an extra element is required instead of or in addition to the acts of reproduction, performance, distribution or display in order to constitute a state-created cause of action, there is no preemption, provided that the extra element changes the nature of the action so that it is qualitatively different from a copyright infringement claim." Stromback v. New Line Cinema, 384 F.3d 283 (United States Court Of Appeals for the Sixth Circuit 2004) --

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