Friday, July 31, 2009

Happy Birthday James Baldwin

This is a bit early, but James Baldwin's birthday falls on Sunday this year, August 2d. Baldwin was born in New York City in 1924. He expressed an interesting experimental writing style in developing themes of sexual awareness and racial acknowledgement throughout his many works. Importantly, he had the flair for constructing the knock-out title. An illustration of his great work (and titles) includes:

  • Go Tell It To The Mountain
  • The Amen Corner
  • Blues For Mister Charlie
  • Tell Me How Long The Train's Been Gone
  • If Beale Street Could Talk

I cannot pass up one of Baldwin's famous quotations: "Be careful what you set your heart upon -- for it will surely be yours."

Baldwin died in France in 1987. Happy Birthday, James.

Thursday, July 30, 2009

Exercise Caution Regarding Google Book Settlement

The time to fish or cut bait is approaching regarding opting out of the proposed Google book settlement. My July 28th entry, below, discusses the upcoming opt out period. This right of a copyright owner to be excluded from the Google class action settlement should be approached carefully and cautiously for two reasons.

First, failure to opt out may implicate the protection afforded by Section 201(e) of the Copyright Act. This section provides that no government body (other than a bankruptcy trustee) can take action to seize, expropriate, transfer or exercise ownership over a copyright interest that has not previously been transferred. In other words, if an author has not previously transferred an interest in the author's great American novel, song, or other work, then the IRS (plus any other government body, plus any general creditor) is prevented from seizing and exercising ownership over the work. But this protection only applies if the rights to the work have not been transferred voluntarily by the author. If the author fails to opt out of the Google book settlement, then it may be the case that the Court's approval of the book settlement is deemed to constitute a voluntary transfer of the author's distribution right to Google. In such an event, the protection of Section 201(e) may be lost. Is the IRS licking its chops right about now?

Secondly, the transfer of an author's distribution right to Google upon approval of the class action settlement can create an interesting impact on the right of termination under the Copyright Act. Presently, Section 203 of the Copyright Act permits termination of an author's transfer between the 35th to the 40th year following a transfer made after January 1, 1978. This absolute right to terminate transfers made after 1977 only applies to transfers made by the author. If the author of a work that is subject to the Google settlement is no longer living today, but if the author's heirs are living, then the transfer of the distribution right to Google pursuant to the settlement may not be terminable under Section 203 for works where authors are deceased on the date the settlement is approved. On the other hand, if an author of a work is not deceased when the settlement is approved, the author, or the author's heirs, may be able to exercise the right of termination between 35 to 40 years after the settlement is approved. Accordingly, the heir of a deceased author may want to carefully consider whether it makes sense to opt out.

The decision whether or not to opt out of the Google settlement is significant for at least these two reasons and perhaps more, depending on the nature of the author's rights. Care should be taken by both an author and an author's heirs relating to the upcoming opt out deadline. Failure to opt out means that an author and an author's heirs may be stuck with the Google settlement, and may be impacted by its negative effects, as suggested above.

Wednesday, July 29, 2009

General IP Information

Feel free to view general IP information at my law firm's IP web page:

Don't Lose The Three Month Window For Copyright Protection

The Copyright Act rewards claimants who promptly apply for copyright protection. If a copyright application is filed within three months of publication of the work, then full remedies available under the Act against infringement will extend back to the date of publication rather than begin with the date of filing.

It is not necessary to file a copyright application in order to obtain a copyright. But it is necessary for a U.S. copyright owner, or the owner of a copyrightable work created in the U.S., to register the copyright in order to recover full remedies against an infringer. And it is absoluely necessary for a typical U.S. copyright owner to register the copyright in order to file a lawsuit. If the copyright owner fails to file the application within three months of first publication of the work, then any infringement claim relating to the period prior to filing will not recover full available remedies. Statutory damages and attorney fee recovery are not available for infringement occuring prior to a "late" filing. However, if the copyright application is filed within the three month grace period following publication, then Section 412 of the Copyright Act provides that full remedies are preserved, even as to infringing conduct that occurs prior to filing.

There are some exceptions. Importantly, there is no three month grace period to file a copyright application for an unpublished work. In any event, prompt filing of a copyright application is important to maximize the protection of valuable copyrightable work. The filing fee to the U.S Copyright Office can be as low as $35, so there is no good reason not to file a timely application.

Tuesday, July 28, 2009

Happy Anniversary To The Fourteenth Amendment

Happpy Anniversary to the Fourteenth Amendment to the U.S. Constitution. On this date 141 years ago, July 28, 1868, Secretary of State William Seward proclaimed that the Fourteenth Amendment was officially added to the Constitution. This amendment prevents a state from depriving its citizens of life, liberty or property without due process of law, and prevents the denial by a state to its citizens of the equal protection of law. This amendment became a part of the Constitution shortly following the end of the Civil War and the assassination of President Lincoln.

Google Book Settlement; Opt-Out Period Approaching

In 2005 several authors and publishers filed class action lawsuits against Google over the agreement that Google obtained with several libraries. The agreement allows Google to digitize the libraries’ collections and make them available in searchable format over the Internet. Authors and publishers objected to this unauthorized copying of their copyrighted work. In response to these lawsuits, Google entered into a tentative settlement agreement by which Google will pay $125 million plus future royalties into a Books Rights Registry to be distributed to the rights holders pursuant to a formula. In exchange, Google will have the right to digitize and make millions of books available online. Rights owners have until September 4, 2009 to “opt out” of the settlement. The New York court’s hearing on the fairness of the settlement is scheduled for October 7, 2009. The EU is undergoing a similar fairness review of this agreement, and the U.S. Department of Justice is reviewing the anti-trust implications of this settlement.