Saving Superman

Tell It To The Hand! More on the Reiss case. Yesterday we mentioned that James Joyce's Ulysses was released within a year of Judge Learned Hand's decision in the Reiss case. What we forgot to mention was that 13 years later, Judge Hand was on a three-judge panel that ruled that Ulysses was not obscene. The decision was written by Augustus Noble Hand, Learned's cousin, also a federal judge. (The third judge on the panel dissented, making this a two-Handed decision.) The cousins apparently shared an expansive view of the arts. Augustus wrote: "Art certainly cannot advance under compulsion to traditional forms, and nothing in such a field is more stifling to progress than limitation of the right to experiment with a new technique." Here here!
The L-Man Goes to Hollywood.  In the mid-1930s, Learned Hand visited Hollywood and watched a movie production. He later wrote of his experience for the Harvard Alumni Bulletin:

"Who could resist the inspiration of the magic by which light and sound were converted into some other essence, instantaneously transported, and made permanent upon a tiny celluloid strip? When one reflected upon the years of devotion and ingenuity, of seething imagination, and of patient verification which lay behind these results, it seemed an honor merely to be one of a species which could do such things."

As much as he appreciated the 'medium,' he was baffled at the 'message,' and considered most popular films to be "tawdry, trite, dreary, and childish." He asked:

"Of what value is it to scale the heavens, to descend to the bowels of the earth, to practice alchemy and all the necromancer's art, if the end were to be so pitiful as this?" 

Good question L-Man and we're only glad that you didn't live long enough to see Jersey Shore. 
National Comics v. Fawcett Publications, Inc. Learned Hand was no fan of comics (he viewed the Superman strips as "silly pictures" -- a view shared by cousin Augustus who, in another case, referred to these comics as "poor thing but mine own") but Hand influenced copyright law and modern culture when he pulled Superman from the public domain. It was 1952 and the legal battle between Captain Marvel and Superman had been going on for such a long time (12 years) that the super hero stories seem to have become intertwined (Was Lex Luthor a copy of Marvel's villain Dr. Sivana or vice versa?) The previous year, Captain Marvel had triumphed at trial -- not because he was original (the trial court ruled that he infringed Superman) -- but because Superman's owners had failed to include proper copyright notice on several strips. Under the 1909 Copyright Act, if you failed to include proper notice, you lost copyright. So, U.S. copyright law had done what kryptonite could not -- dooming the Man of Steel to an unprotected life in the public domain.

Poor Thing But Mine Own. As a general principle, Hand believed that technical pitfalls should not trump personal rights. In National Comics, Hand was able to combine that precept with a copyright principle he had pioneered two decades earlier in Nichols v. Universal Pictures (which we'll talk about  later this week). In Nichols, Learned Hand introduced the then-revolutionary idea that a character within a work could achieve copyright protection separate and apart from the underlying work. Learned Hand reversed the trial court and in a wise bit of judicial surgery, held that the improper notice only doomed certain Superman strips to the public domain, not the Superman character. He wrote, "The absence of any notice, or the affixing of an imperfect notice, upon one strip had no effect upon the copyright upon another strip depicting a different exploit."

Bare-faced infringers. Hand's decision prevented a "bare-faced infringer" (Captain Marvel) from profiting and prospering because of a technical forfeiture. (Hand later took this approach even further in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., his final copyright decision where, in a flash of judicial activism, he prevented a fabric design from falling into the public domain because of a lack of notice.) When Hand decided National Comics, the United States was the only country in which copyright was forfeited if no notice was provided. In that sense, National Comics was 40 years ahead of its time.  In 1989, the U.S. gave up the ghost when Congress changed the law and ended this unjustifiable requirement. Thanks Judge.

When is A Digital Photo Copyright Notice Valid?

Photo Week #5
Dear Rich: How do I add a copyright notice to a digital photo? I don't want a watermark or anything that appears on the image. If I embed it, is it still valid? Wow, The Dear Rich Staff loved working on Photo Week and we can't believe it's already over. Look for more exciting theme weeks soon.
Right, you had a question. A valid copyright notice is one that should be applied on all visually perceptible copies in a manner that, according to the Copyright Office, "gives reasonable notice of copyright." The notice should be permanently legible to an ordinary user of the work under normal conditions of use and should not be concealed from view upon reasonable examination. (Also, keep in mind that since March 1, 1989, copyright notice is not required on published photographs. Before that date, you could lose copyright if it was left off published copies.)
If it's not required, what good is notice? Notice serves a couple of purposes: it alerts everyone as to your copyright, and it prevents someone from ripping off your photo and later claiming they didn't know it was protected (an "innocent infringement").
So what works? If you're posting photos on a website, you can include notice on each photo -- usually accomplished by creating a "copyright notice layer" in Photoshop (and flattening a version of the image) before posting. That pre-flattened layer can be easily removed from the photo in the event you license it. Alternatively, you can include a notice near the photo or on a separate page like this.
What about metadata? A copyright notice that is included in a photo's metadata -- information that travels with the photo file but is not visible when looking at the photo -- probably does not provide valid notice since it's not visually perceptible when looking at the photo. However, we recommend that you include that information in your photo file (or using an invisible digital watermark) as that can sometimes be the key to proving infringement. (We explain how to do it below.) To include it in your metadata, you need to save copyright notice with your photo file. If you're using Photoshop (or probably any other photo editing program), you can enter metadata by going to File Info, or File Properties, (depending on your version) and entering the information as shown below. Photoshop even allows you to link to a web page where you can provide more information about copyright ownership.

Today's public domain photo: an 1853 "occupational daguerreotype" of a seamstress, part of a PD collection, "America's First Look into the Camera: Daguerreotype Portraits and Views, 1839-1864." 

Newspaper Columns and Copyright

Dear Rich:  I have been writing a column for a local newspaper for the past few months, for which I am not receiving any payment. I want to preserve my copyright in the columns, all of which run under my byline with a distinctive title, but both the printed and online versions carry footnoted language stating that the newspaper owns the copyright. I asked for a written agreement to correct this, but their standard agreement is complicated and asks me to give up rights without establishing my ownership. Since I'm unpaid, I'd rather just go without a written agreement but worry about letting their copyright footer remain. I'm about to launch a blog or Facebook page relating to the column, and want to make my ownership of the column and its title clear.  If you're not an employee of the newspaper and you don't have a written agreement detailing who owns copyright -- either a work made for hire agreement or an assignment -- then you own the copyright in your column, no matter what the notice says. The newspaper must have necessary paperwork to claim ownership and apparently they don't. That doesn't prevent the newspaper from reproducing your column. You've consented to that and the newspaper has an implied license (created by your behavior) to use the material. Could the newspaper argue that you never objected to the notice and therefore, that failure to act prevents you from now claiming copyright? That wouldn't fly because the rules about transferring ownership would trump any such claims. The newspaper needs something in writing.
What about the copyright notice? We haven't seen the notice or its placement in relation to your column but here a few things to consider about notice.

• Copyright notice is not required to protect a work. Or perhaps we should put it another way: the absence or presence of notice won't harm your ability to claim copyright ownership; 
• Improper copyright notice may affect the owner's ability to seek maximum damages against someone who claims to be an "innocent infringer."   The newspaper possesses your permission to reproduce the column. So, the newspaper's use of the notice may reflect its claim as to those limited rights -- for example, the newspaper's claim as to its exclusive right of first publication of the column; and 
• Finally, it's possible that placing a copyright notice may mean that the newspaper is seeking to put the world on notice that it claims a collective works copyright in everything on that newspaper page or in that issue. For example, at many websites, the copyright notice in the footer of the web page is not necessarily claiming ownership on everything on that page, but it is claiming rights in the collection and selection of material (while the individual authors may claim rights in individual contributions).

What does "owning copyright" mean? Okay, so assuming you own copyright in the column, you have the right to reproduce and create derivatives. For example, you could put out a book of your columns or reproduce them at your blog. It also may give you the right to prevent the newspaper from reproducing the material at a secondary site, in print form, or from licensing your column to others.
Crystal ball dept. Can we ask why you are writing the column without payment? We assume its because you get something out of the publication? If what you get is very important, you may want to rethink the whole copyright issue. Yes, it's important to own copyright if you have plans in the future. But if not, you should ask if you really need to own the copyright. You could, for example, grant the newspaper copyright and retain the right to do certain things with the column without having to ask for permission or having to pay the newspaper -- just an idea. Also keep in mind, that in return for some consideration, you can always grant copyright to the newspaper after the fact. Assignments do not have to be contemporaneous with the creation of the work (while some courts have held that work made for hire agreements must precede the creation of the work.)