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Re: filmscanners: OT: Copyright Registration

Terry Carroll wrote:

>it's unusual to have an opportunity to provide some signal that I believed 
>would be found useful, even if a little off-topic.

I, for one, am happy you "chimed in," Terry. It sounds good, anyway.:-)

I'd like to mention, from both a producer's and user's point of view, that 
the current US copyright laws, written in 1989 (and extensively changed from 
what used to be), are yet to be tested extensively in court. What Laurie 
said, vis a vis "Who's enforcing what?" is totally valid. Other copyright 
issues, that allow companies to buy and *hog* copyrighted material that 
rightfully belongs in the Public Domain (at least as far as being made 
available for public purposes) still has a long way to go, and may become a 
very sticky issue (at least I hope so).

Best regards--LRA

>From: Terry Carroll <carroll@tjc.com>
>Reply-To: filmscanners@halftone.co.uk
>To: filmscanners@halftone.co.uk
>Subject: filmscanners: OT: Copyright Registration
>Date: Mon, 23 Jul 2001 19:19:34 -0700 (PDT)
>There were a number of messages on this lately, and I apologize if posting
>a response is beating the proverbial dead horse, but I will try to bunch
>up what would have been multiple replies into this single message.
>(Up front: I am a lawyer, and copyright is an important part of my
>practice.  I work in-house for a company, not in a law firm and not as a
>solo practitioner, so I don't represent any clients other than my
>employer.  For credibility's sake, I should add that, in addition to my
>Real Job, I teach Copyright Law at Santa Clara University School of Law on
>the side.)
>In the US, as in most countries, you get a copyright in the work as soon
>as you create the work; technically the test is that it has to be "fixed
>in a tangible medium of expression." Exposing the film is probably
>enough, even if it's not yet developed, although I don't know any cases
>on this in the real world, since you can't copy a photo from undeveloped
>Registration is not a requirement.  However, if you have a reasonable
>belief that you might be infringed, it's not a bad idea.  Here's why.
>Ordinarily, when a copyright is infringed, the copyright owner can either
>get his economic loss due to the infringement (e.g., lost sales); the
>infringer's profits due to the infringement; or both, to the extent that
>they don't overlap (that is, you can't point to a particular sale made by
>the infringer and count it both as a profit to the infringer and a lost
>sale for you).
>But, if you register your work on time, you can elect to get "statutory
>damages" instead of (not in addition to) the above measure of damages.
>Statutory damages are set in the copyright statute, ordinarily in a range
>of $750 to $30,000, as the court deems just.  The ceiling goes up to
>$150,000 if the infringement is done willfully.  It can also go down to
>$200 for "innocent infringement."
>This is a per-work limit, by the way; so if the infringer is taking, say,
>four of your photos, the range is $3000 - $120,000, up to $600,000 if
>willful (or down to $800 if innocent).
>In addition, and perhaps as importantly as statutory damages, is attorney's
>fees.  You can't get them unless you register on time.  You don't
>necessarily get them if you do register on time, but at least you're
>eligible.  This is in contrast to statutory damages, which you can elect
>as a matter of right at any time if you're registered on time.
>So when is "on time"?  Well, for infringement of an unpublished work, your
>registration will entitle you to statutory damages and make you eligible
>for attorneys fees if you register prior to when the infringement starts;
>no fair waiting until you see that you're being infringed, and then filing
>your registration.  For published works, it's timely if you register prior
>to the start of infringement or any time in the three months following
>The other thing is that you are ordinarily required to register your
>copyright prior to bringing suit.  That's right; while it is true that you
>get a copyright automatically by creating a work, you're not able to
>enforce it until you register.  The exception is for non-US works (which
>essentially means either works that authored entirely by non-US nationals
>and, if published, are first published outside of the US).  Copyright
>owners of those works can sue without getting a registration (although the
>limits on statutory damages and attorneys fees still apply to them).
>It's still worthwhile getting that registration, though, because a
>registration will ordinarily serve as evidence of the facts stated on the
>certificate: authorship, ownership, etc.  The copyright owner would
>ordinarily carry the burden of showing this, but if he has a certificate,
>the burden shifts to the infringer to introduce evidence that rebuts the
>facts on the certificate.
>Now, will the Copyright Office accept registration deposits on CD-ROM?
>Yes, it will.  The Office just announced this last week.  The new rule
>goes into effect August 16.  You can read the long and boring Federal
>Register entry on it at
>(<http://www.loc.gov/copyright/fedreg/2001/66fr37142.pdf> if you prefer
>PDF format).
>(A couple years ago, I had a conversation with the Register of Copyrights
>and asked why they wouldn't accept deposits on disk (this was before
>CD-ROM burners were in common home use).  She explained that it wasn't
>that the Copyright Office itself was in the dark ages.  It was just that,
>although the general public envisions a nice filing room with all the
>deposits, the truth of the matter is all the stuff other than the
>registration certificate information itself gets put in document boxes and
>filed in warehouses that are neither heated in the winter nor air
>conditioned in the summer: picture the last scene of "Raiders Of The Lost
>Ark."  They know from past experience that, after a couple years
>oscillating between freezing in winter and baking in summer, there's a
>good chance that any ordinary magnetic media will be unreadable, and
>there's no point in having a deposit that can't be read.)
>There's no limit to the number of photos that can be put on the CD-ROM for
>registration purposes.  You may hear 500, but that was a limit proposed in
>an early draft of the rule.  The final draft has no numeric limitation.
>The acceptable image formats are JPEG, GIFF, TIFF or PCD.
>As long as we're talking about registration, let me toss in a word on
>copyright notice.  A copyright notice (which consists of the C-in-a-Circle
>symbol (or either "Copr." or "Copyright"), the year of first publication,
>and the copyright holder's identity) is optional.  It used to be a
>requirement on published copies, but that went away in March 1989, when
>the US joined the Berne Convention; the Berne Convention is the major
>international treaty on copyright, and it forbids member nations from
>conditioning copyright on formalities.  (That's one reason why non-US
>works don't need registration to sue; the US can slap around its own
>nationals and require it, but it can't do the same to non-US nationals.)
>Notice is no longer required, and there really isn't much of a benefit to
>it, as a legal matter: if someone copies from a copy with a valid notice,
>they are not allowed to plead the "innocent infringement" defense
>mentioned earlier.  Innocent infringement is a partial defense that could
>mitigate damages.  The notice's real benefit, I think, is that, as a
>matter of fact rather than a matter of law, it puts the viewer on notice
>that the copyright owner knows his rights, and may deter some
>As far as I know, the registration in the United States has no effect in
>any other nation.  Copyright is a system of national enforcement; each
>nation enforces its own copyright laws within its borders.  The basic
>principle on international copyright law is not that of extending one
>country's protection into another country (or, put another way, is not
>that of one country honoring the copyright of another country); the basic
>principle, as found in the Berne Convention and other treaties, is that of
>non-discrimination: a country can't treat a work from another country
>worse than it treats those of its own people.  But by the same token, each
>country's system is mostly independent of each other country's system.
>So, for example, if you're an Australian trying to assert a copyright
>against an infringer in the UK, you go by UK rules; a US registration will
>probably not help you, unless the UK has some odd departure from the usual
>system.  (I should add that I am not an expert in UK copyright law.  I
>spent a couple of weeks one summer crashing a girlfriend's class in UK
>Copyright Law at Queen's College, and have the textbook, but that's about
>That's about it.  I hope I didn't stir up more questions than I answered,
>and I apologize to Tony if this was a little too far off-topic.  But I'm
>so used to seeing the rest of you give top-quality information on film
>scanning, Vuescan, Photoshop, etc. (I'm on this list because I'm looking
>to buy a film scanner, and am still deciding which one); it's unusual to
>have an opportunity to provide some signal that I believed would be found
>useful, even if a little off-topic.
>Terry Carroll       |  "Denied."
>Santa Clara, CA     |      Baltimore Ravens v. Bouchat, no. 00-1494,
>carroll@tjc.com     |      (U.S. Supreme Court, May 21, 2001)
>Modell delendus est |

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