Legal Question in Intellectual Property in California

Re: Copyrights before 1982

Prior to the adoption of the Berne Convention in 1989, certain formalities needed to be followed in order maintain ownership of a copyright including use of a copyright notice and registration. Failure to meet those formalities could result in a transfer of the copyright to the public. But copyrights are not like domain names, just because a copyright is lost doesn't mean someone else can grab it. Coprights are granted to original works of authorship, emphasis on original. Like patents which in the US are granted to those who are first to invent, copyright extends only to original works. Therefore, without an assignment of rights from the author, you cannot file a copyright registration for someone elses work.

Your statements confuse copyright ownership and copyright registration. Under Berne, registration is not required to maintain ownership, but it is required in the US before the courts can be used to stop others from unauthorized copyright infringement. Furthermore, the timing of registration in relation to publication and infringment can affect the court's ability to award damages.

Furthermore, you should be aware depending upon the history of the work in question that some pre-Berne works in the public domain can reclaim copyright protection depending upon when the work was created and/ or whether it is a foreign work still protected under copyright outside the US.

If you are concerned about this situation, you should have a copyright attorney review the facts of your situation and provide you with some options.

Regards,

Don Cox

Re: Copyrights before 1982

I'm answering from memory, at home, away from my references, but I think the following is correct:

(1) Prior to the formalization of copyright law around 1989, authors of creative works had common-law copyright protection, so it is not true that a formal registration was essential in order to have any protection at all.

(2) No. Failure to file a formal copyright does not leave the door open for another to rush in and claim copyright. It might work sorta like that with patents and trademarks, but not copyrights.

I'll post a follow-up tomorrow if I encounter any very different info in my library.