Ninth Circuit: Pre-1923 published foreign works may still be copyrighted, depending on notice

In a decision last week, the Ninth Circuit affirmed a district court's grant of summary judgment in favor of the plaintiff in a copyright case.  The works at issue, sculptures by the famed artist Renior and coauthored by one of his assistants, Richard Guino, were created between 1913 and 1917, and first published in France no later than 1917.  However, because they were not published with a U.S.-type copyright notice before 1978 (when the 1976 Copyright Act became effective).

The Ninth Circuit found this fact significant.  It held that because the works were not published with such a notice until after the effective date of the 1976 Act, they were never subject to U.S. copyright under the 1909 Copyright Act, and therefore could not have fallen into the public domain in the U.S.  As a result, the work fell under 17 U.S.C. § 303(a), which covers works that were created before January 1, 1978, but not previously in the public domain or copyrighted, rather than § 104A, which covers foreign works not in the public domain in their country, but, for one of various reasons, in the public domain in the United States.  Given this, the work was entitled to protection for the life of the author plus 70 years, which in this case is 2043 (70 years after Guino's death in 1973).  Because the work was still under copyright, the court affirmed the district court's summary judgment to the plaintiff.

This holding is particularly interesting because, as the Ninth Circuit noted, "[t]he year 1923 is significant because the 1976 Act . . . and the 1998 Copyright Extension Act operate together to create a bright line rule for which works are now in the public domain:  works published before January 1, 1923 are generally in the public domain."  This rule is even noted in Copyright Office Circular 22.  This holding complicates that issue, confirming that one must be more careful when attempting to determine the copyright status of an unpublished foreign work.

More detail of Societe Civile Succession Richard Guino v. Renoir after the jump.

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