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1 LOST BUT NOT ABANDONED (OR ADVERSELY POS SESSED): USING REAL PROPERTY LAW DOCTRINES TO FIND A LEGAL GUARDIAN F OR SOCIETYS COPYRIGHT ORPHANS By KRISTEN RASMUSSEN A THESIS PRESENTED TO THE GRA DUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN P ARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS IN MA SS COMMUNICATION UNIVERSITY OF FLORIDA 2010
2 2010 Kristen Rasmussen
3 To my par ents, Paul and Jean Rasmussen without their unfailing, unconditional love, support, and guidance, my pursuit of scholarship never would have been possible
4 ACKNOWLEDGMENTS My deepest gratitude to my thesis committee members: Dr. Laurence Alexander, Chairwoman Professor Sandra Chance, and Professor Jeffrey Harrison, whose insightful feedback transformed this research study into something far better than I imagined it could be. I also would like to thank my colleague Christina Locke whom I am honored to also count as a friend for her thoughtful editing.
5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ...............................................................................................................4 ABSTRACT .....................................................................................................................................7 CHAPTER 1 PURPOSE OF RESEARCH AND METHODOLOGY ...........................................................9 Introduction to Orphan Works ..................................................................................................9 Extent of the Problem ......................................................................................................10 Causes of the Problem .....................................................................................................12 Copyright Theory ....................................................................................................................13 Review of Literature ...............................................................................................................15 The Law and Economics of Orphan Works ....................................................................18 Non economic Solutions .................................................................................................22 Research Questions and Methodology ...................................................................................26 2 ABANDONMENT AND ADVERSE POSSESSION IN THE COPYRIGHT CONTEXT ..............................................................................................................................29 Abandonment ..........................................................................................................................29 Judicial Findings of Abandonment ..................................................................................30 Judicial Findings of Nonabandonment ...........................................................................33 Adverse Possession .................................................................................................................34 3 OTHER REAL PROPERTY LAW DOCTRINES .................................................................39 Lost Property ..........................................................................................................................39 Public Trust .............................................................................................................................42 Eminent Domain .....................................................................................................................43 4 APPLICATION OF REAL PROPERTY LAW DOCTRINES TO ORPHAN WORKS ......45 Abandonment ..........................................................................................................................45 Adverse Possession .................................................................................................................48 Lost Property ..........................................................................................................................50 Public T rust .............................................................................................................................50 Eminent Domain .....................................................................................................................52 5 RESEARCH SUMMARY AND CONCLUSION .................................................................54 S ummary .................................................................................................................................54 Research Question 1 ........................................................................................................54 Research Question 2 ........................................................................................................55
6 Research Question 3 ........................................................................................................56 Conclusion ..............................................................................................................................56 Proposals for Legislation ........................................................................................................58 LIST O F REFERENCES ...............................................................................................................61 BIOGRAPHICAL SKETCH .........................................................................................................66
7 Abstract of Thesis Presented to the Graduate School of the University of Florida in Partial Fulfillme nt of the Requirements for the Degree of Master of Arts in Mass Communication LOST BUT NOT ABA NDONED (OR ADVERSELY POSSESSED): USING REAL PROPERTY LAW DOCTRINES TO FIND A LEGAL GUARDIAN F OR SOCIETYS COPYRIGHT ORPHANS By Kristen Rasmussen May 2010 Chai r: Sandra Chance Major: Mass Communication The existence of orphan works is chilling creative activity in this country. O rphan works are expressive works protected by copyrights belonging to people who cannot be found. Because potential users of thes e protected works cannot locate copyright owner s to obtain licenses the new users, fearing legal liability for copyright infringement, abandon the ir projects and deprive the public of new creative works. Developments in copyright law over the past thirty years created the orphan works problem, and that body of law currently is not equipped to resolve it. Although Congress has yet to adopt a statute governing orphan works, they have been the focus of much legislative attention, most recently through the O rphan Works Act of 2008, a House bill that would limit the damages that an owner of the copyright in an orphan work may obtain if the infringer performed a reasonably diligent search for the copyright owner and met other statutory requirements In additio n to lawmakers, legal and other scholars also have proposed solutions, none of which however, consider borrowing from another property regime that, like copyright, tries to balance public and private rights: real property law. Although many of the doctr ines that emerged in real property law cannot effectively be analogized to orphan
8 works, one the doctrine of lost propertyresembles orphan works in many of its elements and, thus, presents a feasible solution to the problem
9 CHAPTER 1 PURPOSE OF RESEARCH AND METHODOLOGY Introduction to Orphan Works The anecdotes are as varied as they are numerous and range from Ivy League libraries trying to preserve the literature of agriculture1 to individual military dependents trying to preserve their own family history.2 The existence of so called orphan works affects hundreds, potentially thousands, of private individuals, corporations, and other organizations3 and has far reaching implications for the production of new creative works or, more worrisome, for the chilling effect thereon. Although the definition of orphan works is relatively simple expressive works that are protected by copyrights belonging to people who cannot be found4developing a solution to the dilemma they pose is complex. Here is how the problem arises: The federal Copyright Act of 1976 vests a copyright owner with numerous exclusive rights, including the rights to reproduce, distribute, and prepare derivative works based on the copyrighted 1 Comment of Sarah E. Thomas, Carl A. Kroch Cornell University Librarian at 1 (Mar. 2005), available at http://www.copyright.gov/orphan/comments/OW0569Thomas.pdf 2 Comment of Sherry Granberry (Mar. 2005), available at http://www.copyright.gov/o rphan/comments/OW0120 Granberry.pdf 3 In January 2005, the United States Copyright Office initiated an inquiry into the issues raised by orphan works, requesting written comments from interested parties and soliciting legislative, regulatory, or other s olutions. Orphan Works: Notice of Inquiry, 70 Fed. Reg. 16,3739, 16,3739 (Jan. 21, 2005), available at http://www.copyright.gov/fedreg/2005/70fr3739.html [hereinafter Notice of Inquiry]. The inquiry was in response to a request from U.S. Senators Orrin G. Hatch, then chairman of the Committee on the Judiciarys Subcommittee on Intellectual Property, and Patrick Leahy that the Copyright Office undertake a review of this orphan works issue and, based on that review, develop policy options and legislative recommendations for the Committee on the Judiciary. Letter from Orrin G. Hatch, U.S. Senator, and Patrick Leahy, U.S. Senator, to Marybeth Peters, Register of Copyrights (Jan. 5, 2005), available at http://www.copyright.gov/orphan/orphanreport full.pdf More than 850 public comments, including supra notes 1 and 2 were submitted to the U.S. Copyright Office. Letter from Marybeth Peters, Register of Copyrights, to Orrin G. Hatch, Chairman, Subcommittee on Intellectual Property, Committee on the Judiciary, and Patrick Leahy, U. S. Senator (Jan. 23, 2006), available at id. 4 Google Books Tome Raider: A Fuss Over the Internet Search Firms Effort to Build a Huge Digital Library ECONOMIST, Sept. 5, 2009, available at 2009 WLNR 17296226. The U.S. Copyright Office provides a sim ilar definition of orphan works: copyrighted works whose owners are difficult or even impossible to locate. Notice of Inquiry, supra note 3
10 work.5 Thus, any subsequent use of a copyrighted work by someone other than the copyright holder requires to avoid a finding of copyright infringement the permission of the owner, which is often acquired through a license the copyright owner grants in exchange for a monetary fee.6 When a copyr ight owner cannot be found, however, a potential user cannot determine with certainty whether a use of the copyrighted work would result in legal liability.7 For many potential users, this risk of liability is too great, so they abandon their projects, t hereby depriving the public of a new, creative work, despite the fact that most copyright owners would no longer object to the use of their work by another.8 This chilling effect is disproportionate to the benefit conferred on the few unknown copyright owners who would actually disapprove of the use of their works.9 Extent of the Problem No empirical data on the scope of the orphan works problem exist, mainly because of the difficulty, if not impossibility, of quantifying the frequency with which or phan works impede creative efforts how many unsuccessful searches potential users perform, how irreplaceable the works sought after are, how often users decide to risk infringement and use the work anyway .10 Rather, the evidence is anecdotal and evinced by the hundreds of public comments filed.11 Marybeth Peters, Register of Copyrights, describes the problem as 5 17 U.S.C. 106 (2006). 6 Joshua A. Mausner, Copyright Orphan Works: A Multi Pronged Solution to Solve a Harmful Market Inefficiency 55 J. COPYRIGHT SOCY U.S.A. 517, 520 (2008). 7 Id. 8 Id. at 520 21 (citing Kahle v. Ashcroft, No. C 04 1127, 2004 WL 2663157, at *5 (N.D. Cal. Nov. 19, 2004) ([A] vast number of copyrighted yet no longer commercially va luable works sit idle rather than enriching public knowledge.)). 9 Id. at 521. 10 Olive Huang, Note, U.S. Copyright Office Orphan Works Inquiry: Finding Homes for the Orphans 21 BERKELEY TECH. L.J. 265, 266 (2006).
11 pervasive and recounts testimony before the U.S. House of Representatives in which the U.S. Holocaust Museum described the millions of pages of documents, photographs, oral histories, and reels of film that it and other museums cannot use because ownership cannot be determined.12 Although the exact scope of the orphan works problem remains unclear, it does present varying degrees of diffi culty across different forms of copyrighted works.13 In the music industry, for example, sound recordings are accompanied by labels that clearly identify the copyright owner, and the industry has created organizations most notably Broadcast Music, Inc. (BM I) and the American Society of Composers, Authors and Publishers (ASCAP) that maintain contact information for the copyright holder of every sound recording still under protection and coordinate the licensing and collection of royalties for use of the works.14 Books, on the other hand, create more complex problems.15 Perhaps the most commonly invoked proof of this is a Carnegie Mellon University study undertaken in 19992001 to determine the feasibility of acquiring copyright permission to digitize books in the university s library collection.16 In the initial sample based on a statistically valid random sample of [the universitys] books and a search of the copyright renewal records eleven percent of the books 11 See supra note 3 and accompanying text. For a discussion of the risk of relying on such anecdotes, however, see Robert Brauneis, Copyright and the Worlds Most Popular Song, 56 J. COPYRIGHT SOCY U.S.A. 335, 414 15 (2009). 12 The Importance of Orphan Works Legislation, Marybeth Peters, Register of Copyrights (Sept. 2008), available at http://www.copyright.gov/orphan/ 13 Frank Muller, Owners and Users Unite! Orphan Works in the Copyright Modernizat ion Act of 2006 17 DEPAULLCA J. ART & ENT. L. & POLY 79, 91 (2006). 14 Id. 15 Id. at 91 92. 16 Comment of Denise Troll Covey, Principal Librarian for Special Projects, Carnegie Mellon University Libraries at 3 (Mar. 2005), available at http://www.copyright.gov/orphan/comments/OW0537 CarnegieMellon.pdf
12 were immediately eliminated as too complicat ed to pursue because of third party copyright ownership.17 The researchers could not locate the publishers of twenty two percent, or almost one fourth, of the books.18 Generally, the older the book, the more difficult it was to find the publisher [and] t he more likely it was that the book was out of print neither generating revenue for the copyright owner nor easily accessible to potential readers.19 Further, more than one third of the publishers that were successfully located did not respond to multiple letters of inquiry, and of those that did respond, some were uncertain of the rights they had and others did not even have records of publishing the books.20 Finally, other types of copyrighted works graphical ones such as photographs and advertisements, for example indicate no copyright information whatsoever, making them virtually impossible for potential new users to trace.21 Causes of the Problem The orphan works problem is largely a byproduct of three decades of development in U.S. copyright law that has relaxed the obligations of copyright owners to assert and manage their rights.22 Not only did Congress extend the term of copyright protection from twentyeight years to life of the author plus seventy years, but it also rendered copyright protection automatic by eliminating the requirement of the affirmative acts of publication, registration, and renewal.23 Congress also eliminated the requirement that published works contain notice of copyright.24 17 Id. 18 Id. 19 Id. 20 Id. at 3 4. We have had to photocopy and send them the title page. Id. at 4. 21 Muller, supra n ote 13 at 92 93. 22 The Importance of Orphan Works Legislation, supra note 12 23 Id. 24 Id.
13 Thus, once a n original work is simply fixed in a ta ngible medium of expression, it is protected by copyright.25 Congress implemented these changes to ensure the United States compliance with international copyright treaties, but the net result of these amendments has been that more and more copyright ow ners may go missing [as well as a] diminished public record of copyright ownership [that has] made it more difficult for the business of copyright to function.26 Although Congress has yet to pass a law governing the treatment of orphan works for copyright purposes, the issue has been the subject of legislative attention, most recently through the Orphan Works Act of 2008, a House bill that would limit the damages that may be obtained from an infringer of the copyright in an orphan work if the infringer performed a reasonably diligent search for the copyright owner and met other statutory requirements.27 Copyright Theory Congress power to extend copyright protection to authors as a means to an endthe promotion of science and the useful arts deriv es from the Copyright Clause of the U.S. Constitution.28 In interpreting this clause, the U.S. Supreme Court has repeatedly recognized that the primary purpose of the monopoly granted to copyright owners is to benefit the public by stimulating the product ion of creative works.29 A secondary consideration to the Court, it 25 17 U.S.C. 102(a) (2006). 26 The Importance of Orphan Works Legislati on, supra note 12 27 Robert Spoo, Ezra Pounds Copyright Statute: Perpetual Rights and the Problem of Heirs 56 UCLA L. REV. 1775, 1830 & n.285 (2009). The Senate passed its version of the Orphan Works Act of 2008. Id. The first statutory proposal to address the orphan works problem was the Public Domain Enhancement Act, a House bill that would have imposed a nominal $1 fee on copyright owners after a fifty year copyright term. Further, the copyright holder would have had to pay an additional $1 fee every ten years (until the end of the term of protection) after the initial fifty. Id. The bill failed to leave committee and was not reintroduced during the 110th or 111th Congress. Id. 28 U.S. CONST. art. I, 8, cl. 8. 29 David B. Sherman, Note, Cost and Resource Allocation Under the Orphan Works Act of 2006: Would the Act Reduce Transaction Costs, Allocate Orphan Works Efficiently, and Serve the Goals of Copyright Law? 12 VA. J.L. & TECH. 4, 17 (2007). For examples of this philosophy, see, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994) (The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical
14 has acknowledged, is the provision of financial rewards to the creators. As early as 1954, the Court declared that [t]he economic philosophy behind the clause empowering Congress to gra nt patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance the public welfare through the talents of authors and inventors in Science and useful Arts.30 That is, copyright law promotes its primary function of public welfare through private market incentives and serves societyby stimulating the creation of new works that contribute to the general public good by creating incentives for the expressive community to maximize the output of w orks of authorship. Despite the general acceptance among courts and legal commentators that copyright law is designed to benefit the public recent U.S. Supreme Court decisions indicate an increased willingness to protect authors. Most notable among these opinions is Eldred v. Ashcroft which held that repeated extensions to the term of copyright do not constitute a perpetual copyright.31 The petitioners argued that such extensions violated the Constitutions mandate of limited times,32 but the Court r ejected this argument, noting that life of the author plus seventy years is still limited.33 The Court rejected Justice Breyers assertion that copyright statutes must serve public, not private, ends, concluding that [t]he two ends are not mutually excl usive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.34 In expression for the good of the public .); Feist Publns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (The primary objective of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and useful Arts.). 30 Mazer v. Stein, 347 U.S. 201, 219 (1954) 31 537 U.S. 186 (2003). See also infra note 36. 32 The entire Copyright Clause states: The Congress shall have power to promote the progress of science and useful arts, by securing for limited times to aut hors and inventors the exclusive right to their respective writings and discoveries[.] U.S. CONST. art. I, 8, cl. 8. 33 Eldred 537 U.S. at 188, 198. 34 Id. at 212 n.18.
15 upholding the constitutionality of Congress most recent copyright term extension, the U.S. Supreme Court granted more protection to authors, t hereby demonstrating copyright laws attempt to e stablish a delicate equilibrium 35 between public and private rights. Review of Literature The orphan works issue first appeared in secondary literature as a backdrop to academic criticism of and commenta ry on the Eldred ruling .36 Not surprisingly, its presence in legal scholarship increased significantly after the Copyright Offices inquiry.37 In addition to the more than 850 public comments submitted to the Copyright Office,38 legal students, scholars, an d practitioners proposed their solutions in l aw r eviews and other specialized journals;39 still more weighed in when Congress began its legislative response to the inquiry;40 and Googles proposed 35 Computer Assocs. Intl, Inc. v. Atlai, Inc., 982 F.2d 693, 696 (2d Cir. 1992) (O n the one hand, [copyright law] affords protection to authors as an incentive to create, and, on the other, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.). 36 In Eldred the Court upheld, 7 2, provisions of a federal law that extended by twenty years the copyright term of protection for both then existing and future works. Eldred 537 U.S. at 208. 37 See supra note 3 38 Id. 39 See, e.g. Dennis Khong, Orphan Works, Abandonware, and the Missing Market for Copyrighted Goods 15 INTL J.L. & INFO. TECH. 54 (2007); Pamela Brannon, Note, Reforming Copyright to Foster Innovation: Providing Access to Orphaned Works 14 J. INTELL. PROP. L. 145 ( 2006); Jerry Brito & Bridget Dooling, An Orphan Works Affirmative Defense to Copyright Infringement Actions 12 MICH. TELECOMM. & TECH. L. REV. 75 (2005); Benjamin T. Hickman, Note, Can You Find a Home for This Orphan Copyright Work? A Statutory Solution for Copyright Protected Works Whose Owners Cannot be Located 57 SYRACUSE L. REV. 123 (2006); Huang, supra note 10 ; Coree Thompson, Note, Orphan Works, U.S. Copyright Law, and International Treaties: Reconcil ing Differences to Create a Brighter Future for Orphans Everywhere 23 ARIZ. J. INTL & COMP. L. 787 (2006). 40 See, e.g. Christian L. Castle & Amy E. Mitchell, Unhand That Orphan: Evolving Orphan Works Solutions Require New Analysis 27 ENT. & SPORTS LAW. 1 (2009); Darrin Keith Henning, Copyrights Deus Ex Machina: Reverse Registration as Economic Fostering of Orphan Works, 55 J. COPYRIGHT SOCY U.S.A. 201 (2008); Muller, supra note 13; Sami J. Valkonen & La wrence J. White, An Economic Model for the Incentive/Access Paradigm of Copyright Propertization: An Argument in Support of the Orphan Works Act 29 HASTINGS COMM. & ENT. L.J. 359 (2007); Vigdis Bronder, Note, Saving the Right Orphans: The Special Case of Unpublished Orphan Works 31 COLUM. J.L. & ARTS 409 (2008); Mausner, supra note 6 ; Sherman, supra note 29
16 settlement with the Authors Guild relating to the Google Books Library Project41 and the antitrust and competition implications of such an agreement spawned a new wave of orphan works literature.42 Nothing in this secondary literature, though, explicit ly applies real property law43 doctrines to the specific issue o f orphan works. What comes closest to doing so, however, is a recent article about the popular jingle Happy Birthday to You.44 Professor Robert Brauneis, co director of the Intellectual Property Law Program at The George Washington University Law Sc hool opines that if Happy Birthday to You were a piece of real property, its open, unopposed use for so many years probably would have resulted in a finding of adverse possession.45 Although the majority of Professor Brauneis article is irrelevant to this study,46 he 41 In 2004, Google announced its plan, unprecedented i n scope, for a comprehensive digital library whereby the search engine would scan and digitize every book published and convert them into e books that can be indexed, searched, read, and sold online. Miguel Helft, Googles Plan for Out of Print Books i s Challenged N.Y. TIMES, Apr. 3, 2009, available at http://www.nytimes.com/2009/04/04/technology/internet/04books.html?_r=1 In response to a 2005 class action lawsu it alleging copyright infringement, Google agreed to settle with the plaintiffs, which include the Authors Guild and Association of American Publishers, an agreement currently awaiting final judicial approval. Jerry A. Hausman & J. Gregory Sidak, Google and the Proper Antitrust Scrutiny of Orphan Books 5 J. COMPETITION L. & ECON. 411, 411 (2009). See also Nari Na, Testing the Boundaries of Copyright Protection: The Google Books Library Project and the Fair Use Doctrine 16 CORNELL J.L. & PUB. POLY 417 426 & n.74 (2007) (noting that many of the books that Google hopes to scan into its digital card catalog are orphan books). 42 See, e.g. James Grimmelmann, How to Fix the Google Book Search Settlement 12 NO. 10 J. INTERNET L. 1 (2009); Hausman & Sidak, supra note 41 ; Randal C. Picker, The Google Book Search Settlement: A New OrphanWorks Monopoly? 5 J. COMPETITION L. & ECON. 383 (2009). The Google Books Library Project in general and the antitrust implic ations arising from it in particular are beyond the scope of this thesis; thus, this literature review will not address this body of research. 43 Real property refers to [l]and and anything growing on, attached to, or erected on it, . BLACKS LAW DICTIONARY 1254 (8th ed. 2004). It is distinguished from intellectual property, or a category of intangible rights protecting commercially valuable products of the human intellect comprising primarily trademark, copyright, and patent rights. Id. at 824. 44 Brauneis, supra note 11 The melody of Happy Birthday to You still under copyright protection, despite its publication in 1893 is often cited as an example of the overly generous protection of copyrig ht law. Id. at 336. 45 Id. at 340. Adverse possession is an ownership scheme whereby title to a particular piece of land actually transfers from the legal owner of the property to a nonowner who used the land over a substantial period of time in accorda nce with several statutory factors. For an in depth discussion of adverse possession and its elements, see infra Chapter 2, notes 32 39 and accompanying text.
17 does make the germane point that increases in the length of copyright protection may necessitate new title clearing doctrines potentially derived from real property law theories in copyright law.47 Courts could develop an adverse possession doctrine in copyright law, according to Professor Brauneis, by judicial reinterpretation of copyrights statute of limitations:48 Instead of holding, as courts have in the past, that each infringing reproduction gives rise to a new claim and starts a new limi tations clock running, courts could hold that a reasonably continuous stream of infringing reproductions (or distributions, public performances, or any other violations of exclusive rights), counts as a single act, much as real property law would treat a series of daily walks across the property of another as a single act.49 Another article suggests that the real property law doctrines could be modified to address the orphan works problem but does not propose any specific ways to do so.50 Professor Lee Anne Fennell of the University of Illinois College of Law notes that prescriptions on orphan works must fit into a complex legislative scheme protecting intellectual property rights, much like adverse possession must fit within a larger scheme designed to prot ect real property rights.51 She does say, however, that the goal would be to identify those instances in which a nonowners valuation was much larger than that of an owner.52 This idea that copyright law must develop a system whereby owners can communicat e to the public the level of value they place on their copyrights is one of the 46 The article examines, among other things, the history of the song, the background of its authors, its evolution into the standard birthday song, its copyright history, and concerns raised and lessons learned from that history. Id. 47 Id. at 380. 48 I d. at 422. 49 Id. 50 Lee Anne Fennell, Efficient Trespass: The Case for Bad Faith Adverse Possession 100 NW. U. L. REV. 1037 (2006). 51 Id. at 1094. 52 Id.
18 main themes that emerges when examining the scholarship on orphan works. This economic based literature proposes that if a copyright owner does not deem his or her copyright c ommercially valuableevinced by the owners refusal to pay money to preserve the right the protected work should fall into the public domain. The Law and Economics of Orphan Works53 Lawrence Lessig a Stanford law professor at the time, wa s the first academic to propose such a solution. In a New York Times oped article54 published just days after the U.S. Supreme Court issued its Eldred opinion,55 Professor Lessig suggested a requirement that copyright holders pay a tax fifty years after publication of their work.56 If the copyright owner failed to pay the tax after three years, the copyrighted work would enter the public domain.57 Drawing from patent law which requires patent holders to pay a fee every few years to maintain the patents on t heir inventions58Lessig said his proposal is a technique to move content that is no longer commercially exploited into the public domain, while protecting work that has continuing 53 It is important to note here that research about the law and economics of copyright in general ha s saturated the legal literature. See, e.g. Stan J. Leibowitz & Stephen Margolis, Seventeen Famous Economists Weigh in on Copyright: The Role of Theory, Empirics, and Network Effects 18 HARV. J.L. & TECH. 435 (2005). Attempting to identify and summarize all of this scholarship is a massive undertaking and one that is beyond the scope of this thesis. Thus, this literature review identifies only those pieces that analogize the law and economics of copyright to the specific issue of orphan works. 54 Lawr ence Lessig, Op Ed., Protecting Mickey Mouse at Arts Expense, N.Y. TIMES, Jan. 18, 2003, at A17 [hereinafter Lessig, Protecting Mickey], available at 2003 WLNR 5637191. Professor Lessig further developed his proposal in a book published the following yea r. LAWRENCE LESSIG, FREE CULTURE (The Penguin Press 2004) [hereinafter LESSIG, FREE CULTURE]. 55 Professor Lessig represented petitioner Eric Eldred before the Court. Eldred v. Ashcroft, 537 U.S. 186, 191 (2003). 56 Professor Lessig originally sug gested that the tax might be $50 per work. Lessig, Protecting Mickey, supra note 54 In his book, however, he adjusted that figure to $1 per work. LESSIG, FREE CULTURE, supra note 54, at 249. Professor Lessigs proposal was the basis of the Public Domain Enhancement Act, supra note 27 Professor Lessig described the idea behind the legislation as clear and obvious: Remove copyright where it is doing nothing except blocking access and the spread of knowledge. Leave it for as long as Congress allows for those works where its worth is at least $1. But for everything else, let the content go. LESSIG, FREE CULTURE, supra note 54 at 249. 57 Lessig, Protecting Mickey, supra note 54 58 See 37 C.F.R. 1.20(e) (g) (2008).
19 commercial value.59 Particularly significant for the issue of orphan works Professor Lessig also suggested that when a copyright holder paid the tax, the government would record that fact, including the name of the copyright holder, in a database or similar register so that artists and others who want to use a work have an easy way to identify and locate the copyright owner.60 A similar proposal that Professor William Landes and Judge Richard Posner put forth would allow copyrighted works to remain protected almost in perpetuity, assuming their owners deemed them worthy of prote ction.61 Their suggested model would require the reintroduction of formal requirements for copyright registration and renewal but would provide no limit on the number of times an author and his or her heirs and assignees could renew the copyright protectio n in the work.62 Economically speaking, unrenewed works would be presumed valueless to their owners, and copyright protection, therefore, would lapse.63 Relying on empirical data on registrations and renewals of both copyrights and trademarks over the past ninety years, Professor L andes and Judge Posner conclude that the reintroduction of formal requirements would help alleviate or even eliminate many of the problems associated with orphan works.64 The reintroduction of the copyright formalities of registration, renewal, and notice would reduce the enormous and prohibitive tracing costs 59 Lessig, Protecting Mickey, supra note 54 60 Id. 61 William M. Landes & Richard A. Posner, Indefinitely Renewable Copyright 70 U. CHI. L. REV. 471 (2003) [hereinafter Landes & Posner, Indefinitely Renewable ]. Also in 2003, Professor Landes and Judge Posner published a related book that presented a formal economic model for copyright. WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW (Harvard University Press 2003) [hereinafter LANDES & POSNER, ECONOMIC STRUCTURE] That book is often considered the most authoritative discussion of the law and economics of copyright protection. Valkonen & White, supra note 40 at 373. 62 Landes & Posner, Indefinitely Renewable supra note 61 at 473. See also Kevin A. Goldman, Comment, Limited Times: Rethinking the Bounds of Copyright Protection 154 U. PA. L. REV. 705, 719 22 (2006). 63 Landes & Posner, Indefinitely Renewable supra note 61 at 474. 64 Id. at 477 78.
20 that would be publishers of new works incur in determining a copyright holders identity.65 A modification to the law that would require copyright owners to reregister the ir copyrights every ten or twentyfive years in a central registry under the name (and presumably the address) of the owner and to notify the registry of any transfer of the copyright would provide a searchable database through which potential users could easily locate copyright owners and obtain licenses.66 Likewise, copyright notice a precondition of copyright protection under Professor Landes and Judge Posners proposal would enable a would be publisher to easily ascertain whether the work is still prote cted.67 This notice would further reduce tracing costs because the potential user would have to search the registry only for these readily determined, still protected works.68 Next, Professor Landes and Judge Posner argue that a requirement of copyright renewal at regular intervals would actually lead to a large number of works entering the public domain sooner,69 a conclusion supported by empirical data on works created and published prior to the 1976 Act.70 Of the works registered for copyright protect ion between 1883 and 1964, less than eleven percent were renewed at the end of their initial twenty eight year term of protection.71 Only those works deemed commercially valuable to their owners were renewed, Professor Landes and Judge Posner conclude .72 T his finding and the proposal based on it a requirement 65 Id. 66 Id. at 477. 67 Id. at 478. 68 Id. 69 Id. at 517 18. 70 Id. at 496 500. 71 Id. at 473. 72 Id. at 518.
21 that copyright holders formally renew every few years is significant to the issue of orphan works because shorter terms would decrease the likelihood of orphanhood.73 Building on Professor Landes and Judge Posners article, Sami Valkonen, a New York intellectual property attorney, and New York University economics P rofessor Lawrence White applied an economic model of copyright law to the Orphan Works Act, concluding that it is consistent with the Co nstitutional objectives of copyright.74 Eliminating the barriers to use of orphan works, according to Valkonen and White, is substantially output enhancing because potential copyright users do not incur substantial costs in their attempts to locate copyright owners.75 While requiring the copyright claimant to inform the public of its right to the copyright and to make his or her contact information available to the public for possible licensing requests imposes an additional cost, this concern would have a minuscule impact on creative investment and would allow the owner to eschew any notion of abandonment of the protected work.76 Therefore, Valkonen and White argue, the societal benefits outweigh the costs of changes proposed by the orphan works legisl ation.77 Also analogizing the orphan works issue to law and economics, British law P rofessor Dennis W.K. Khong describes the problem as a missing market form of market failure.78 That is, an efficient market may exist between a copyright owner and potential user but because 73 Id. See also Goldman, supra note 62 at 720. 74 Valkonen & White, supra note 40 at 370. 75 Id. at 399. See also Sherman, supra note 29 at 47 ([T]he [Orphan Works] Act would facilitate ba rgaining between interested parties because by reducing the transaction costs involved in searching, it increases the likelihood that potential users who would have abstained from searching will search for the copyright owner, find the copyright owner, and negotiate an economically efficient agreement with the copyright owner for use of their work that benefits both parties and the public.). 76 Id. at 398. 77 Id. at 399. 78 Khong, supra note 39 at 63.
22 of a lack of information and prohibitive search costs, neither the owner nor the would be publisher are able to locate one another to negotiate a permissive use.79 What results then is the market inefficiency of unfulfilled deman d for use of works.80 Professor Khong proposes a hybrid approach of copyright renewal similar to the one Professor L andes and Judge Posner suggest coupled with a more extensive use of a licensing scheme,81 whereby a copyright owner declares his or her intention to allow free use of the copyrighted work subject to some prescribed conditions.82 Non e conomic Solutions While the legal economists propose solutions that contemplate forfeiture of copyright protection altogether if owners do not find the right comme rcially valuable, other scholars offer proposals that try to strike a balance between owners rights in their protected works and contributions to the public domain. One of the earliest scholars to put forth such a recommendation was Christopher Sprigman,83 a fellow at Stanford Laws Center for Internet and Society. Sprigman proposes a system whereby the works of authors who do not comply with the voluntary renewal formalities of registration, notice and recordation of transfer become subject to a compuls ory license that allows anyone to use the work for a government set royalty fee. If a rightsholder does not register or renew her copyright, the work does not enter the public domain, 79 Id. at 63 64. 80 Id. 81 Id. at 89. 82 Id. at 82. These conditions would vary according to how a copyright owner would frame the license. Id. A common characteristic of a so called open access license is the allowance for royalty free production for non commer cial purposes. Id. 83 Christopher Sprigman, Reform(aliz)ing Copyright 57 STAN. L. REV. 485 (2004).
23 but neither does it become an orphan work,84 rendering it practically u nusable to would be users.85 Rather, it simply becomes available for use under a compulsory license.86 Sprigman dubs his system of voluntary formalities plus default licenses as new style formalities and argues that it eases access to commercially valuel ess works for which protection (or the continuation of protection) serves no purpose and focuses the system on those works for which protection is needed to ensure that the rightsholder is able to appropriate the commercial value of the expression.87 Other scholars and students have proposed a fair use affirmative defense88 to infringement of an orphan work.89 William Patry, a private attorney, and Judge Posner propose an expansion of fair use to include works whose authors fail to take reasonabl e steps to show the works are still of value to them.90 Unlike the forfeiture proposals discussed above, however, failure to signal value would not result in the work falling into the public domain for the public to use freely but rather would allow the af firmative defense of fair use.91 Depriving a copyright owner of an infringement remedy through a fair use defense would not be unfair to owners, Patry 84 Id. at 555. 85 Id. at 555 56. 86 Id. at 556. 87 Id. at 555. 88 Fair use is governed by 17 U.S.C. 107 and generally is an exception to the exclusive rights granted to copyright holders in 106. 4 WILLIAM F. PATRY, PATRY ON COPYRIGHT 13:13 (2008). The principle of fair use allows individuals to use copyrighted works without the copyright owners permission for purposes such as criticism, comment, news r eporting, teaching (including multiple copies for classroom use), scholarship, or research[.] 17 U.S.C. 107 (2006). Each instance of a claimed fair use must be determined on a case by case basis and with consideration of the four nonexclusive factors set forth in 107. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 549 (1985). 89 William F. Patry & Richard A. Posner, Fair Use and Statutory Reform in the Wake of Eldred, 92 CAL. L. REV. 1639 (2004); Brito & Dooling, supra note 39. 90 Patry & Posner, supra note 89 at 1660. 91 Id.
24 and Judge Posner argue.92 An owner who fails to signal value and who is, thus, hard to locate necessarily would not be extracting any value from licensing the work.93 They conclude then that any loss of a remedy would therefore be only the loss of a windfall.94 Similarly, Jerry Brito and Bridget Dooling, George Washington University law students, propose that if a wouldbe user after a reasonable search in good faithcannot locate a copyright owner, the potential publisher may use the work in his or her new work without being subject to liability, including damages, injunction, or the impoundment of the new w ork.95 However, any future uses of the work would be subject to a compulsory license with royalties set by statute.96 Similar to the fair use statute, Brito and Dooling propose the codification of a nonexclusive list of factors that a court should consider in determining whether a user conducted a reasonable search in good faith .97 An orphan works affirmative defense would, according to the authors, encourage the use of orphan works by significantly reducing the fear of automatic and harsh penalties for infringement. [while] giv[ing] rightsholders an incentive to attach contact information to works they deem to be of value.98 Still other scholars suggest looking to international law for a solution to the orphan works problem. Law student Pamel a Br annon describes the compulsory licensing system in place in Canada and Japan as the most efficient and effective means to provide access to orphaned 92 Id. at 1651. 93 Id. 94 Id. 95 Brito & Dooling, supra note 39 at 108. 96 Id. 97 Id. According to Brito and Dooling, these factors would include whether there is notice on the work, whether the user searched the Copyright Offices register, and whether the user published his or her intent to use the orphaned work. Id. at 110 11. 98 Id. at 109.
25 works.99 Under those systems, a potential user who has conducted a reasonable search for the copyright ow ner with no success may apply to the countrys Copyright Board for a license.100 The works and uses for which the Copyright Board can issue a license are determined by statute, and if the body is satisfied that the potential user has made a reasonable, albeit unsuccessful, search for the owner, the board will set a fee for the use and issue a nonexclusive license.101 Similarly, two California attorneys, Christian Castle and Amy Mitchell, advise Congress to consider the extensive treatment that [the issue of orphan works] has received in other count r ies.102 Specifically, the European Union developed guidelines for member states to use when developing their own national solutions and laws.103 The guidelines developed after an admirably comprehensive, and even r efreshingly candid, process that indicate[d] great care for both cultural heritage and the rights of creators104call for the creation of a publicly searchable, crosscountry orphan works (and public domain works) database.105 The guidelines also provide i nsight on what constitutes a diligent search, as well as a provision for withdrawal and/or remuneration if the rightsholder appears.106 A final solution contained in the secondary literature is a multi pronged one that includes a reasonable efforts require ment, a voluntary registry, and a presumption that 99 Brannon, supra note 39 at 170 71. 100 Id. at 167. 101 Id. 102 Castle & Mitchell, supra note 40 at 25. 103 Id. at 23. 104 Id. at 23, 24. 105 Id. 106 Id. at 23.
26 submission to the voluntary registry precludes orphan status.107 Law student Joshua Mausner argues that a limited remedy should be imposed once a potential user complies with the reasonable efforts requirem ent.108 Next, Mausner argues, copyright owners should include ownership and contact information in a manner similar to some registries currently in existence109 and should be responsible for notifying the register of any changes in contact or ownership inform ation.110 Finally, proper submission to this registry would serve as constructive notice of ownership information, and a presumption would arise that a reasonable search of the registry would have produced the owner information.111 Thus, [a] subsequent user who fail[ed] to obtain permission for use would have to overcome this presumption if the work was duly and accurately submitted to the voluntary registry.112 Research Questions and Methodology A review of the literature uncovered a serious problem that cur rent copyright law is not equipped to resolve. Many scholars propose economicbased o r other copyright related solutions to the orphan works issu e with no consideration of real property law which is increasingly dominating the discourse and conclusions of the world of intellectual property.113 This thesis diverges from the traditional copyright based approach to orphan works and seeks to 107 Mausner, supra note 6 at 539. 108 Id. This solution is unlike that of Brito and Dooling, see supra notes 95 98 and accompanying text, who argue that a fair use defense and, thus, no remedy should be imposed once the user establishes that he or she conducted a reasonable search. 109 See, e.g. Visual Arts Registry, 37 C.F.R. 201.25(c)(2)(i) (2000) (Identifi cation of the artist, including name, current address, age, and telephone number, if publicly listed.). 110 Mausner, supra note 6 at 539 40. 111 Id. at 546. 112 Id. 113 Mark A. Lemley, Property, Intellectual Propert y, and Free Riding 83 TEX. L. REV. 1031, 1033 (2005).
27 determine whether various real property law doctrines can be analogized to orphan works t o develop a solution to the problem. Specifically, this thesis attempts to answer the following research questions: 1) Have courts applied any real property law doctrines to the copyright context? If so, which doctrines? 2) Can these real property law doctrines provide a feasible solu tion to the orp han works problem? If so, how? If not, why not? 3) Do other real property law doctrines exist that could provide a more f easible solution? If so, how? To answer these questions, this thesis used legal research as its methodology. First, the author reviewed secondary s ources appearing in law r eviews, legal journals, and legal treatises. The primary sources for the study were federal and state court opinions accessed electronically through the legal database Westlaw, which contained analogies of real property law to copyright law as well as discussions of real property law doctrines in general. From a review of secondary materials, the author discovered that the main doctrinal themes appearing in sources that contain real property law an alogies to intellectual property law are abandonment, adverse possession, and the public trust .114 The author then reviewed leading real property law casebooks115 to determine if other relevant doctrines existed There, the author discovered the theories of lost property and eminent domain, concepts that completed the fairly exhaustive list of relevant modern real property law doctrines. After examining and interpreting the secondary materials and case law, the author at tempted to determine whether any of th ese five doctrines can be 114 An analogy to the law of servitudes, or easements, also appeared with some frequency in these materials. The author dismissed this theory fairly quickly, however. An easement is essentially a licen se a property owner grants to a third party that allows this nonowner to use the property for a specifically identified purpose, such as walking from a landlocked piece of land to a public highway. 25 AM JUR. 2d Easements and Licenses in Real Property 4 (2005). Because the crux of the orphan works problem is the inability to locate the copyright owner to obtain a license, the easements doctrine is largely inapplicable to orphan works. 115 E.g. JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICI ES, AND PRACTICES (2d ed. 1997).
28 applied to the orphan works issue. This first chapter of the thesis introduced the topic, followed by the literature review, research questions, and methodology. Chapter 2 examine s state and federal jurisprudence that specifical ly analogizes the doctrines of abandonment and adverse possession to copyright law. Chapter 3 discuss es the three other real property law theories that could form the basis of a n analysis of orphan works. Chapter 4 applies these theories to orphan works to determine whether they present adequate solutions to the problem Chapter 5 summarizes and conclude s by offer ing a proposal derived from one of these real property law doctrines.
29 CHAPTER 2 ABANDONMENT AND ADVERSE POSSESSION IN THE COPYRIGHT CONTEXT For the past half century, courts and commentators have applied much of the logic and many of the rules of real property to the intellectual property context.1 Courts regularly refer to copyrights as property,2 despite U.S. Supreme Court statements dis tinguishing intellectual property from real and other types of property.3 This modification of real property law theories to the copyright setting is perhaps best illustrated by courts use of the doctrines of abandonment and adverse possession when resol ving copyright issues. Abandonment The two primary elements of an abandonment of real property are the intention to abandon and the external act or omission to act by which that intention is carried into effect.4 Put another way, nonuse of the propert y must be accompanied by unequivocal and decisive acts demonstrating the owners intent to abandon it.5 Mere relinquishment does not qualify as 1 Lemley, supra Chapter 1, note 113. Professor Mark Lemley hypothesizes that the modern use of the term intellectual property as the common descriptor of the field of law tha t comprises patent, copyright, trademark and more recently trade secrets, the right of publicity, misappropriation, unfair competition, and idea submissions probably traces to the United Nations establishment of the World Intellectual Property Organiz ation (WIPO) in 1967. Id. at 1034 35 & n.4. Although the legal literature reflects use of the terms as early as 1845, when copyrights were called literary property and patents industrial property, widespread use began after the foundation of WIPO, wh en numerous organizations, including the American Bar Association (ABA) Section on Patent, Trademark, and Copyright Law (now the ABA Section on Intellectual Property Law) changed their names to reflect the language. Id. at n.4. 2 See, e.g. Feltner v. C olumbia Pictures Television, Inc., 523 U.S. 340, 349 (1988) (Actions seeking damages for infringement of commonlaw copyright, like actions seeking damages for invasions of other property rights were tried in courts of law .) (emphasis added); Reg ister.com v. Verio, 356 F.3d 393, 401 02 (2d Cir. 2004) (analogizing the defendant, who accessed Internet data on the plaintiffs Web site, to someone who stole an apple off a tree on plaintiffs land). 3 Dowling v. United States, 473 U.S. 207, 216 17 ( 1985) (The copyright owner holds no ordinary chattel for the copyright holders dominion is subjected to precisely defined limits. It follows that interference with copyright does not easily equate with theft, conversion, or fraud.). A cha ttel is defined as [m]ovable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property. BLACKS LAW DICTIONARY 251 (8th ed. 2004). 4 1 AM JUR. 2d Abandoned, Lost and Unclaimed Property 7 (2005). 5 Id.
30 abandonment because it is not overt enough to carry the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment.6 These two requirements extend to copyright law, whereby abandonment of a creative work occurs only if there is an intent by the copyright owner to surrender his or her rights in the work, as well as an overt act evincing such intent.7 Whether these two requirements have been met is a fact specific determination that oftentimes depends on whether the alleged act of abandonment was one of commission or one of omission. Judicial Findings of Abandonm ent Courts have had little difficulty finding abandonment when copyright owners unequivocally declare their work free for use by others.8 In Hadady the publisher of a weekly commodities market advisory service newsletter sued Dean Witter for copyright infringement after Hadadys president learned that Dean Witters Chicago office was retransmitting the newsletter into a database to which Dean Witter employees nationwide had unlimited access.9 In defense, Dean Witter cited a provision that appeared on e very newsletter and stated, [t]he information contained in this letter is protected by U.S. copyright laws through noon EST on the 2[n]d day after its release .10 In granting summary judgment for the defendants, the court found this copyright notice to be conclusive evidence of abandonment of the copyright after the two day period.11 6 Id. 7 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.06 (2009). 8 See, e.g. Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392 (C.D. Cal. 1990). 9 Id. at 1395. 10 Id. at 1396. 11 Id. at 1399.
31 Courts also have found abandonment in less blatant yet still overt acts, including a copyright owners destruction of the only copy of the protected work.12 In Duncan, an Atlanta television station, WXIA TV Channel 11, brought a copyright infringement action against a television monitoring service that taped Channel 11s news broadcasts for potential resale to the services customers.13 In this particular case, TV News C lip sold to Floyd Junior College in Rome, Georgia, a copy of a one minute, forty five second storyfeaturing the colleges newly installed fitness trail that Channel 11 developed and aired on its evening newscast.14 As was the stations customary practice, Channel 11 kept its copy of the completed segment for one week and then destroyed it.15 The court concluded that its erasure of the videotape divested Channel 11 of its copyright protection in it, noting that [w]here a copyright holder evidences an inten tion to abandon his copyright by an overt act of abandonment, protection ceases. WXIAs destruction of its broadcast videotapes is certainly such an overt act.16 On appeal, the Eleventh Circuit took care to note, however, that failure to distribute a cop yrighted work to the public does not necessarily indicate a copyright owners intent to abandon his or her property,17 thereby 12 Pac. & S. Co., Inc. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983). 13 Id. at 1189. More specifically, the monitoring service, TV News Clips, videotaped without the stations consent and in violation of the copyright notice that appeared at the end of each newscast news programs that aired on Channel 11 and other stations in the Atlanta area and then contacted each individual or company featured in a news segment to see if they wanted to purchase a copy of the broadcast. Id. Customers paid $65 for the first news clip and $25 for each subsequent copy. Id. 14 Id. 15 Id. at 1191. Channel 11 did, however, retain for several years the discrete parts, including the pre taped fitness trail footage, the anchors written script, and the audiotape of the br oadcast, which comprised the completed segment that TV News Clip sold to the college. Id. 16 Id. at 1196 (internal citation omitted). 17 Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1500 (11th Cir. 1984) (Certainly the erasure shows that WXIA did not desire to distribute post broadcast copies of parts of the program. Failure to distribute a work does not mean, however, that an owner intends to allow others to use the work, and it is questionable whether WXIA had such an intent. Destroying the only known copy of a work would seem to be the best way to assure that it will not be used by another. Still, we do not say that destruction of the only copy of a work can never establish intent to abandon.).
32 supporting the notion that courts are more reluctant to find abandonment in cases where the alleged act of abandonment is one of o mission, rather than overt action.18 Written statements made by copyright owners also have qualified as overt acts sufficient to evince an intent to abandon the right.19 In Bell the plaintiff penned a poem he titled Desiderata and stated in his diary th at he had left a humble gift to the world.20 A few years later, plaintiff included Desiderata, without copyright notice, in a Christmas card he sent to several friends.21 Thereafter, a psychiatrist on active duty with the U.S. Army who had received a copy of the poem from a patient contacted the plaintiff regarding the doctors use of the poem in his medical practice.22 In a response letter to the doctor, plaintiff wrote, [y]es, of course, you may distribute multigraphed copies of Desiderata to the sol diers. I am happy to have at least this small part in your splendid work.23 In plaintiffs copyright infringement action against a magazine that published the poem, the court held that plaintiffs inclusion of the poem in Christmas cards, as well as his authorization of the poems distribution to the psychiatrists solider patients without any copyright notice, and his statement that he was giving it to the world constituted abandonment of the copyright in the poem, noting that these acts certainly are strong evidence that the author did not endeavor to protect a commercial property.24 18 See infra notes 25 31 and accompanying text. 19 Bell v. Combined Registry Co., 397 F. Supp. 1241 (N.D. Ill. 1975). 20 Id. at 1247. 21 Id. 22 Id. 23 Id. 24 Id. at 1249.
33 Judicial Findings of Non abandonment Although courts are willing to find abandonment when the instances of such occur through overt acts of commission, they are less li kely to do so when the alleged abandonment occurs through acts of omission, such as a failure to prosecute copyright infringements by third parties.25 In Hampto na copyright infringement action involving the silent moti on picture The Covered Wagon appel lants argued that Paramount Pictures abandoned its copyright in the film by failing, for more than twenty five years, to take any action against appellants for their unauthorized use of The Covered Wagon.26 The court rejected this argument, citing the t otal lack of evidence of an overt act indicating an intent to surrender the rights, and instead described Paramounts failure to bring action as at most lack of action.27 Another court declined to find copyright abandonment where the owner failed to adequately promote the copyrighted work.28 At issue in Lilienthal was an unauthorized reproduction of a copyrighted book that the defendant, the author of the book, undertook after he became dissatisfied with the publication and marketing efforts of hi s publisher Dodd Mead, to whom he had assigned the copyright as part of the publishing agreement between the two.29 In defense to the infringement suit Dodd Mead brought against him, Lilienthal argued that the publishing company abandoned the copyright whe n it decided to discontinue printing further 25 Hampton v. Paramount Pictures C orp., 279 F.2d 100 (9th Cir. 1960). See also Encyclopaedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156, 1180 (W.D.N.Y. 1982) (holding that plaintiffs unsuccessful attempts to accommodate defendants use of plaintiffs works before bringing an inf ringement suit did not constitute abandonment of copyright protection since even [m]ere inaction or negative behavior will not suffice (quoting Dodd, Mead & Co., Inc. v. Lilienthal, 514 F. Supp. 105, 108 (S.D.N.Y. 1981))). 26 Id. at 103. 27 Id. at 104. 28 Lilienthal 514 F. Supp. at 105. 29 Id. at 105 06.
34 copies of the book.30 In finding that Dodd Mead, over a tenmonth period, printed 14,500 copies of the book and spent more than $66,500 on its manufacturing and mark eting, the court concluded that [m]ere inacti on or negative behavior will not suffice [for a finding of abandonment]. There is absolutely no evidence to suggest Dodd Mead intended to give up its exclusive rights in the book.31 Adverse Possession While the foregoing jurisprudence seem s to indicate courts general acceptance of the application of the real property law doctrine of abandonment to the copyright context, the same is not true of the doctrine of adverse possession, which is recognized significantly less in courts discussions and resolutions of copyright disputes. For possession of real property to be adverse, the possession or use of it by the adverse possessor sometimes called the nonowner must be actual,32 open and notorious,33 exclusive,34 hostile,35 under a claim of right,36 and continuous and uninterrupted.37 Because the drastic effect of a finding of adverse possession is to actually 30 Id. at 106 07. 31 Id. at 108. For two more examples of courts declining to find abandonment based on acts of omission, see Filmvideo Releasing Corp. v. Hastings, 426 F. Supp. 690 (S.D.N.Y. 1976) (rejec ting abandonment claim for failure to renew the copyright in motion pictures derived from copyrighted books) and Marvin Worth Prods. v. Superior Film Corp., 319 F. Supp. 1269 (S.D.N.Y. 1970) (holding plaintiffs failure to affirmatively claim copyright pro tection in material orally communicated to others insufficient evidence of the intent required for abandonment). 32 The nonowner must physically use the land as a property owner normally would, in accordance with the type of property, location, and uses. 2 C.J.S. Adverse Possession 25 (2003). 33 The nonowners use and actual possession of the property must be so visible and apparent and of a character that would give notice to a reasonable person that another may act to recover the property. Id. The legal owners actual knowledge of the nonowners use satisfies this element. Id. 34 The nonowner uses and holds the land to the exclusion of the legal owner. Id. Thus, renters, hunters, or others who enter or use the land with the owners permission do not m eet this requirement. Id. 35 This element is simply a requirement that the legal owner not consent to the possession. Id. 36 The nonowner must claim that he or she is legally entitled to ownership. Id. 37 The adverse possessors possession and claim of own ership must exist continuously or uninterruptedly throughout a statutorily determined time period so that the true owner has actual or constructive notice of the use by the nonowner during the entire time period. Id.
35 divest the true owner of his or her title to the land and vest it in the possessor after the lapse of time, courts apply the doctrine stringe ntly and harshly.38 The doctrine of adverse possession is to be taken strictly; that is, it must be construed strictly in favor of the owner of the title to the land. It is a recognized, but not a favored, method of procuring title.39 This reluctan ce to apply the doctrine even in real propertythe body of law through which and for which the doctrine was created may explain courts unwillingness to extend it to other property regimes, including intellectual property.40 One court, however, did not s hy away from a discussion of adverse possessions relevance to copyright law and, in fact, explicitly adapted the doctrine to the copyright realm. Because of the significance of such a holding, the case will be discussed in some depth. Gee v. CBS, Inc.41 remains the only reported case to explicitly extend adverse possession to copyright.42 38 Id. 39 Id. 40 See, e.g. Advance Mag azine Publishers, Inc. v. Leach, 466 F. Supp. 2d 628 (D. Md. 2006) (holding that the state law doctrine of adverse possession was preempted by the federal Copyright Act and, thus, could not operate to divest a magazine publisher of its copyrights in its pu blications). In Leach the defendant unsuccessfully argued that he had acquired the copyrights to plaintiffs publications through adverse possession because defendants publicly available Web sites which defendant operated for eight years by scanning copyrighted literary works into electronic form and making them available to the public in a variety of formats was open and notorious, hostile to the interests of the copyright owner, continuous, and under claim of right. Id. at 632, 634 35. Despite its ch aracterization of the defendants argument as rather novel, the court passed on deciding the substantive merits of the adverse possession claim in favor of the preemption argument. Id. at 635. See also OKeefe v. Snyder, 416 A.2d 862 (N.J. 1980) (declining to decide the case by applying the adverse possession doctrine to personal property and instead relying upon the statute of limitations for an action in replevin brought by famous artist Georgia OKeefe to regain possession of three stolen paintings i n the possession of the defendant); Sporn v. MCA Records, Inc., 448 N.E.2d 1324 (N.Y. 1983) (Since we have concluded that plaintiffs cause of action is barred by the Statute of Limitations and does not involve intangible property, there is no reason to c onsider, at this time, the applicability of the doctrine of adverse possession to intangible property.); ONeill v. Gen. Film Co., 157 N.Y.S. 1028 (N.Y. App. Div. 1916) (explicitly avoiding the issue of adverse possessions applicability to copyright law by stating, [n]o decision is cited, and we have found none, which holds that [a copyright] may be acquired by adverse possession and claim of ownership.). 41 471 F. Supp. 600 (E.D. Pa. 1979). 42 The Third Circuit Court of Appeals affirmed without an o pinion. Gee v. CBS, Inc., 612 F.2d 572 (1979) (table opinion).
36 The suit which consisted of many claims43centered around potential property rights in the estate of the late blues singer and composer Bessie Smith, often described as t he Empress of the Blues.44 Smith was a recording artist for Columbia Phonograph Company (Columbia) from 1923 until her death in an automobile accident in 1937.45 Her surviving husband, Jack Gee, Sr., died in 1975, and shortly thereafter, Jack Gee, Jr., t he adopted son of Smith and Jack Gee, Sr., brought the action against Columbia and its successors.46 The issue before the court was Columbias motion for summary judgment based on, among other grounds, Columbias adverse possession of plaintiffs copyright s to certain recordings.47 The adverse possession issue involved ownership of the song At the Christmas Ball, which Smith recorded in November 1925 and Columbia rejected shortly after.48 As part of a tribute to Smith several years after her death, howev er, Columbia included the recording of At the Christmas Ball as a track on Volume 3 of an album titled the Bessie Smith Story Golden Era Series released in 1951.49 The same record was rerecorded and re issued in 1972 as part of an album titled Nobodys Blues But Mine.50 Plaintiff argued that Columbia did not pay for At the Christmas Ball and, thus, did not have title to it; true title to the record then, according to the plaintiff, remained with Smith, and defendants committed copyright infringement against 43 In addition to copyright infringement, plaintiffs claims included violation of civil rights, breach of contract, unfair competition, and misappropriation of property interests. Gee, 471 F. Supp. at 611. 44 Id. at 609. 45 Id. at 610. 46 Id. 47 Id. at 653 54. 48 Id. at 651 53. 49 Id. at 651. 50 Id. at 651 52.
37 her estate by issuing two albums containing the recording.51 Defendants countered, however, that plaintiffs failure to take timely legal action against Columbia for the 1951 release acted as his consent or license for Columbia to commit the subs equent act the 1972 release of the recording.52 Put another way, the plaintiffs inaction, according to the defendants, transferred, through the doctrine of adverse possession, the copyright interest in the recording to the defendants, whose possession [w as] originally unlawful[.] However, because defendants] openly and under color of right [acted] for a prescribed period of time as though [they] were entitled to ownership and continued possession, title actually transferred to them.53 In a relatively brief, three page analysis of an issue that the court described as intriguing, it concluded that nothing in the case law requires limitation of the doctrine of adverse possession to tangible chattels.54 In fact, according to the Pennsylvania Supreme Court, [a]t common law, rights in a literary or artistic work were recognized on substantially the same basis as title to other property, the Gee court noted.55 Thus, the court reasoned, the doctrine should be extended automatically to intangible proper ty.56 Applying the elements of adverse possession to the Smith recordings, the court said it [could] think of no more open or notorious assertion of ownership than the statement Columbia included on the 1951 record jacket declaring that [Bessie Smit h] left behind her 160 recordings (Every one of them, 51 Id. at 652. 52 Id. at 653. 53 Id. 54 Id. at 654 57. See also id. at 653 (citing Lightfoot v. Davis, 91 N.E. 582 (N.Y. 1910) and Priester v. Milleman, 55 A.2d 540 (Pa. 1947), New York and Pennsylvania state opinions, respectively, standing for a similar proposition that title to chattels may be obtained through acquired possession). See also supra note 3 for a definition of chattels. 55 Gee, 471 F. Supp. at 655 (quoting Waring v. WDAS Broad. Station, 194 A. 631, 634 (1937)). 56 Id. at 654 55.
38 incidentally, the property of Columbia Records).57 This assertion of ownership after the initial recording was also clearly hostile because Smiths estate did not consent to the issuance of the recor d.58 Moreover, because the original 1951 records were still available to the record buying public and had never been reissued, the court inferred that they had been continuously available from 1951 until the present, thereby satisfying the continuous r equirement for adverse possession.59 Hence, Columbias arguably wrongful possession of exclusive rights to At the Christmas Ball ripened into complete and perfect ownership, good against Bessie Smiths estate, . and the court granted defendants motion for summary judgment on the copyright infringement claims related to At the Christmas Ball.60 It is important to note, however, that Gee s precedential value is dubious at best. The nations leading copyright scholar concludes that its application of [the] doctrine [of adverse possession] to the intangible of literary property, which by its nature is incapable of possession, seems questionable.61 Perhaps more significantly, though, in the thirtyplus years since the Gee court issued the opinion, no court has followed its holding that adverse possession can apply to copyrights.62 57 Id. at 656. 58 Id. 59 Id. at 656 57. 60 Id. at 657. The court did not explicitly discuss the remainin g elements of actuality, exclusivity, and possession under a claim of right. 61 NIMMER & NIMMER, supra note 7 12.05. 62 In a Westlaw Citing References search which identifies every subsequent judicial o pinion that has cited a particular case and for what proposition of Gee, the author discovered exactly 100 state and federal cases that have referenced Gee but none for its holding extending the real property law doctrine of adverse possession to the copyr ight context.
39 CHAPTER 3 OTHER REAL PROPERTY LAW DOCTRINES Although never explicitly applied by courts to intellectual property, several other real property law doctrines e xist that may contain useful analogies to copyright law and, thus, potential solutions to the orphan works problem. Many of these theories suggest a correlation to orphan works because of their emphasis on the use of property for the benefit of the public .1 Lost P roperty2 Lost property is akin to abandoned property but with one significant distinction. Unlike abandoned property,3 lost property is property which the owner has involuntarily parted with through neglect, carelessness, or inadvertenceth at is, property which the owner has unwittingly suffered to pass out of his or her possession, and of whose whereabouts the owner has no knowledge; .4 Put another way, property is considered lost when the owner does not know, and cannot ascertain, where it is because the owner parted with possession of it wholly involuntarily.5 The hallmark of lost property, then, is the owners neglect, carelessness, or inadvertence6 that results in his or her unintentional relinquishment of the property. Exampl es 1 See supra Chapter 1, notes 1 9 and accompanying text (explaining how orphan works are detrimental to the general public, which is deprived of a new creative work every time a potential user of a copyrighted work cannot locate the copyright owner to obtain a license and, thus, abandons his or her project to avoid the risk of liability for copyright infringement). 2 This discussion focuses on th e loss of personal property, which, although not a real property law doctrine, is highly relevant to the issue of orphan works, as evinced by infra Chapter 4, notes 24 28 and accompanying text, and infra Chapter 5, Conclusion. Personal property is defined as [a]ny movable or intangible thing that is subject to ownership and not classified as real property. BLACKS LAW DICTIONARY 1254 (8th ed. 2004). 3 See supra Chapter 2, notes 4 6 and accompanying text (stating as one of two primary elements of abandonment an intention to abandon). 4 1 AM JUR. 2d Abandoned, Lost and Unclaimed Property 12 (2005). 5 Id. 6 Id.
40 of lost property include currency discovered on a chair in an examination booth in a safety deposit vault;7 a stash of money hidden among pieces of wood and other debris discovered by a tenant in the houses basement;8 and jewels found inside a soft she ll eyeglass case lying on a hospital floor.9 Because the finders of the items in these cases located the objects in places where the owners probably would not have placed them intentionally, the circumstances indicate that the owners inadvertently dropped or otherwise lost the property, the courts said. Conversely, circumstances that do not support a finding that the items were misplaced unintentionally include the discovery of money wrapped and concealed in the wing of an airplane10 and gold coins placed in a glass jar and buried in the ground.11 A finder of lost property seeking to establish rights in the property must show that he or she was the finder of the property and that it was, indeed, lost.12 The first element may be met by showing that the finder had possession of the property and the intent to exercise dominion and control over it.13 A showing that the property was truly lost may be made by evidence that it had been out of the owners possession for a substantial time14 or evidence indicating that the owner 7 Paset v. Old Orchard Bank & Trust Co., 378 N.E.2d 1264 (Ill. App. Ct. 1978). 8 Eldridge v. Herman, 291 N.W.2d 319 (Iowa 1980). 9 Ray v. Flower Hosp., 439 N.E.2d 942 (Ohio Ct. App. 1981). 10 Benjamin v. Lindn er Aviation, Inc., 534 N.W.2d 400 (Iowa 1995). 11 Corliss v. Wenner, 34 P.3d 1100 (Idaho Ct. App. 2001). 12 1 AM JUR. 2d Abandoned, Lost and Unclaimed Property 27 (2005). 13 See, e.g. Klein v. Unidentified, Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511 (11th Cir. 1985) (holding that the United States was the finder and owner of an abandoned shipwreck because it was embedded in soil belonging to the United States, thereby giving the federal government constructive possession of the property presumably wi th the intent to exercise control over it at some point in time). 14 See, e.g. Toledo Trust Co. v. Simmons, 3 N.E.2d 661 (Ohio Ct. App. 1935) (holding that money that remained unclaimed after fifteen years was proof that it was lost).
41 is unlikely to claim the property.15 A claimant of lost property who can satisfy both of these requirements does not obtain absolute title or ownership of the property, but, rather, a right of possession that the true owner would be entitled to recover if he or she ever appeared.16 In some jurisdictions, however, a finder may be able to establish clear title to lost property by compliance with procedures prescribed in a lost goods statute.17 Although the exact terms of such statutes vary, they ge nerally require advertising or otherwise giving notice of the find to the true owner and provide that title will vest in the finder if the owner does not claim the property within the statutorily specified time.18 The statutes principal purposes are to e ncourage and facilitate the return of property to the true owner, and then to reward a finder for his honesty if the property remains unclaimed. The statute provides an incentive for finders to report their discoveries by making it possible for them, afte r the passage of the requisite time, to acquire legal title to the property they have found. By [requiring] publici[ty] and advertise[ment of] the property, the statute further enhances the opportunity of the owner to recover what he has lost.19 Other re al property law doctrines particularly that of the public trustemerged as a way of balancing private and public access to land.20 Because a similar tension exists over access to and use of orphan works, a discussion of this concept is important. 15 See, e.g. Paset v. Old Orchard Bank & Trust Co., 378 N.E.2d 1264 (Ill. App. Ct. 1978) (deeming money found in a bank vault lost after its owner failed to claim it within one year of the finding, even though the bank notified all customers who might have been in the area when the money was lost that it had been found and could be claimed). But see State v. Green, 456 So.2d 1309 (Fla. Dist. Ct. App. 1984) (holding that property left in an apartment after the tenant was hospitalized was not lost because there was no evidenc e that the owner did not intend to claim the property once he was released). 16 1 AM JUR. 2d Abandoned, Lost and Unclaimed Property 27 (2005). As to others besides the true owner, though, the finders possessory rights are tantamount to ownership. Id 17 Id. 18 See People v. Twenty Seven Thousand Four Hundred Ninety Dollars, 1996 WL 33348190 (Mich. Ct. App. 1996) (interpreting and applying what Michigan called its finders statute). 19 Old Orchard Bank & Trust 378 N.E.2d at 1268 (applying Illinois lost goods statute) (internal citations omitted). 20 Michael A. de Gennaro, The Public Trust Servitude: Creating a Policy Based Paradigm for Copyright Dispute Resolution and Enforcement 37 TEX. TECH L. REV. 1131, 1163 (2005).
42 Public Tr ust The public trust doctrine recognizes a property right held by the public at large, and safeguarded by the government, in certain publicly held lands, such as rivers, riverbeds, the sea, and the seashore.21 Although the extent to which these public i nterests should trump private interests in them is debated,22 the public trust does impose three types of restrictions on the governments authority to protect the land.23 First, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the public as well.24 Second, the property may not be sold, even for a cash equivalent, and, lastly, it must be maintained for particular types of uses.25 The public trust doctrine recognizes that the general publi c requires a certain amount of protection in goods that may otherwise be dominated and exploited by special interests.26 For example, if a railroad company buys the land underlying the shores of Lake Michigan to lay its tracks, such a purchase and use of t he land would presumably have a detrimental effect on commerce in the lake and surrounding communities.27 In that case, according to the concededly few courts that have interpreted and applied the public trust doctrine, the government should be able to use its power to revoke the sale for the benefit of the public and maintain the land for 21 Id. at 1164. 22 Some scholar s argue, for example, that under the public trust doctrine, private rights are always subordinate to the publics use of the property. See, e.g. Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not So Brave) New World Order of Inte rnational Intellectual Property Protection 6 IND. J. GLOBAL LEGAL STUD. 11, 38 39 (1998); William Araiza, Democracy, Distrust, and the Public Trust: Process Based Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value 45 UCLA L. REV. 385, 396 (1997). 23 Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention 68 MICH. L. REV. 471, 477 (1970). 24 Id. 25 Id. 26 de Gennaro, supra note 20 at 1165. 27 See, e.g. Ill. Cent. R.R. Co. v. State of Illinois, 146 U.S. 387 (1892).
43 particular types of uses, such as fishing and navigation.28 In this context, then, the government is the steward of the public trust and protects it from the influences of special interests.29 A fourth real property law doctrine also centers, in part, on public use, and thus, is worth examining here. The doctrine of eminent domain, however, is likely only marginally relevant to the orphan works problem, so this abbreviate d discussion does not include many of the aspects of the highly complex statutory and constitutional doctrine. Eminent Domain Eminent domain, put simply, is the inherent power30 of a governmental entity to take privately owned property and convert it to pub lic use without the owners consent, if conditioned upon the constitutional requirement31 of the payment of just compensation to the owner.32 Another constitutional limitation on the taking power is the requirement that the property acquired be done so for a public use.33 A relatively recent and particularly controversial34 U.S. Supreme Court opinion, however, interpreted this clause to allow the taking of private 28 Id. at 454 55 (The harbor of Chicago is of immense value to the people of the state of Illinois, in the facilities it affords to its vast and constantly increasing c ommerce; and the idea that control over its bed and waters [can be] place[d] in the hands of a private corporation, created for a different purpose one limited to transportation of passengers and freight between distant points and the city is a proposition that cannot be defended The ownership of the navigable waters of the harbor, and of the lands under them, is a subject of public concern to the whole people of the state. The trust with which they are held, therefore, cannot be al ienated, .). 29 Id. 30 The governments eminent domain, or condemnation, power is said to be inherent because it is founded on the law of necessity which is inherent in sovereignty and essential to the existence of government. 26 AM JUR. 2d Eminen t Domain 3 (2005). 31 The Fifth Amendment to the United States Constitution prohibits the government from taking its citizens property without just compensation. U.S. CONST. amend. V. 32 Hodel v. Irving, 481 U.S. 704 (1987). 33 U.S. CONST. amend. V. 34 By late 2009, fortythree states had enacted anti Kelo measures, a backlash [that] probably resulted in more new state legislation than any other Supreme Court decision in history. Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINN. L. REV. 2100, 2102 (2009).
44 property for transfer to private individuals for the purpose of promoting economic developm ent.35 In Kelo the New London (Connecticut) Development Corporation a private nonprofit entity established to assist the City in planning economic development initiated condemnation of ten residences and five other properties as part of a 2000 development plan that would transfer the properties to private developers for the stated purpose of promoting economic growth in the area.36 None of the fifteen properties were blighted or otherwise in poor condition.37 In a 54 opinion, the Court endor sed the takings, upheld the economic development rationale for the condemnation and mandated a broad policy of deference to legislative judgments in this field of public use issues.38 The Court rejected the property owners argument that the transfer of their property to private developers rather than to a public body required any heightened degree of judicial scrutiny;39 nor did the Court require the developers or city to provide any evidence that the takings were likely to achieve their claimed economic benefits.40 Rather, the Court said, it, as well as other courts, should not secondguess the Citys considered judgments about the efficacy of the development plan.41 35 Kelo v. City of New London, 545 U.S. 469 (2005). 36 Id. at 473 77. 37 Id. at 475. 38 Id. at 478 85. 39 Id. at 485 86. 40 Id. at 487 88. 41 Id. at 488.
45 CHAPTER 4 APPLICATION OF REAL PROPERTY LAW DOCTRINES TO ORPHAN WORKS The crux of this re search study is to apply various real property law doctrines to orphan works to determine whether these theories provide a feasible solution to the problem. Chapters two and three discussed potentially analogous doctrines two of which, abandonment and adverse possession, courts have already applied to the copyright context, and three others, lost property, public trust, and eminent domain, that courts have never so applied. This chapter applies in the order in which they were presented in the preceding tw o chapters these five real property law doctrines and their elements to the orphan works issue to ascertain whether legislators could borrow from real property law jurisprudence to resolve this copyright dilemma. Abandonment An artist who uses an orpha n work in his or her new creative work could raise abandonment as an affirmative defense1 to a copyright infringement claim. In such a case, the defendant would argue that the copyright owners failure to provide adequate means for locating him or her to inquire about a license to use the work amounts to an overt act evincing an intent to surrender the right in the work.2 That is, a copyright owner according to this defendant who intended to maintain and exploit his or her right in the work surely would have made identifying and contact information easily accessible to the public, and failure to do so constitutes an intent to abandon ownership of the work, thereby submitting it to the public domain. Such an argument, however, is inconsistent with case law, particularly the judicial trend declining to find copyright abandonment where the alleged abandonment occurred through acts 1 An affirmative defense is [a] defendants assertion of facts and arguments that, if true, will defeat the plaintiffs or prosecutions claim, even if all the allegations in the complaint are true. BLACKS LAW DICTIONARY 451 (8th ed. 2004). 2 For a discussion of the elements of abandonment, see supra Cha pter 2, notes 4 7 and accompanying text.
46 of omission, such as the failure to do something related to the work.3 In the case of orphan works, their copyright owners have not unequivocally declared them free for use by the public after the lapse of a certain amount of time;4 nor have they destroyed their only copies of the work, evincing an utter lack of interest in them,5 or declared them to be gift[s] for the benefit of t he world.6 Rather, the only thing that copyright holders in orphan works has done is remain unreachable to potential new users of the work, presumably because of the owners failure to register their copyrights or otherwise provide their contact informati on. Such omission, or inaction, is clearly factually onpoint with those cases in which the copyright owners failed to prosecute potential infringers,7 or adequately promote the copyrighted work.8 A court is likely to find, then, that orphan works copyr ight owners failure to somehow make this information available is merely an act of omission rather than an overt one of commissionthat does not evidence an intent to relinquish their rights in their works. Such a finding is even more likely in light of the fact that the Copyright Act no longer contains certain requirements previously needed for protection. Perhaps most significant and troubling about a strict application of the abandonment doctrine to orphan works is the notion that such a rule would f ind abandonment and, thus, deprive the copyright owner of any remedy for infringement in those cases in which he or she did no more than rely on the statutory safeguards contained in the Copyright Act. That is, the 3 See supra Chapter 2, notes 25 31 and accompanying text. 4 See Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392 (C.D. Cal. 1990). 5 See Pac. & S. Co., Inc. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983). 6 See Bell v. Combined Registry Co., 397 F. Supp. 1241 (N.D. Ill. 197 5). 7 See Hampton v. Paramount Pictures Corp., 279 F.2d 100 (9th Cir. 1960). 8 See Dodd, Mead & Co., Inc. v. Lilienthal, 514 F. Supp. 105, 108 (S.D.N.Y. 1981).
47 Copyright Act no longer requires notice9 or registration10 of a copyrighted work. Although Congress provided strong motivation for notifying others of and registering copyrighted works acts that would presumably create a record of the owners name and contact informationit also made clear that failing to do either does not divest a copyright owner of his or her protection in the right.11 However, if courts were to find abandonment in cases in which owners did nothing more than fail to somehow provide this information, they would be imposing an a dditional requirement for protection that the Copyright Act does not co ntemplate and, in fact, eschews .12 Simply put, a copyright owner, as a matter of public policy, should not be held to have abandoned his or her copyright for failure to take action that the governing statute does not require. Application of the doctrine of abandonment to orphan works, however, does just that and, thus, is not a feasible solution to the problem. 9 17 U.S.C. 401 403 (2006) are the notice provisions of the Copyright Act and state that [w ]henever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies . Id. 401(a) (emphasis a dded to note the use of the permissive may, rather than the mandatory shall). The remaining statutory provisions dictate how notice, if the copyright owner opts to include it, should appear on the work, id. 401(b) (c), and include a strong incentive for doing so: If a notice of copyright in the form and position specified by this section appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendants interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, . Id. 401(d). 10 [T]he owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to th e Copyright Office the deposit specified by this section, . Id. 408(a) (emphasis added). As with notice, however, Congress created a strong incentive for registration of the work: a statutory prohibition on bringing an infringement action unles s the claimed work has been registered. Id. 411(a). The need for [ 411] arises from [a] basic change the bill will make in the present law Copyright registration for published works, which is useful and important to users and the public at la rge, would no longer be compulsory, and should therefore be induced in some practical way. H.R. REP. NO. 94 1476, at 158 (1976). 11 See, e.g. 17 U.S.C. 408(a) (2006) (stating that [s]uch registration is not a condition of copyright protection.) 12 Previous versions of the federal Copyright Act contained notice and registration requirements that Congress eliminated from the most recent revision of the act. See House Report, supra note 10
48 Adverse Possession Before an application of the doctrine of adverse possession to orphan works is undertaken, it is important to note that the U.S. Copyright Office has indicated that it does not consider the doctrine of adverse possession applicable to intellectual property.13 Nonetheless, the doctrine is one of forfeiture and, thus, could potentially be analogized to orphan works and, for that reason, is worthwhile to discuss in the copyright context. Yet, like the doctrine of abandonment, the adverse possession theory is not overly useful to the development of a solution to th e orphan works problem. An effective analogy between adverse possession and orphan works fails for several reasons, namely the inapplicability of a key adverse possession element:14 open and notorious use. Open and notorious use occurs when the property owner is either actually or constructively awarethrough the nonowners highly visible and apparent use of the propertyof such use and essentially acquiesces to that use through the failure to bring a trespass action or other claim against the nonowner.15 The orphan works issue does not contemplate such a scenario, however. That is, the typi cal orphan works problem arises not because a copyright owner failed to object to the unauthorized use of his or her work, but, rather, because that owner, previously unknown 13 Advance Magazine Publishers, Inc. v. Leach, 466 F. Supp. 2d 628, 633 (D. Md. 2006) (including as an exhibit to the opinion a copy of a letter the Copyright Office sent the defendant stating as such). 14 For a discussion of the elements of adverse possession, see supra Chapter 2, notes 32 37 and accompanying text. The inapplicability of one element is fatal to the analysis since all elements are required to succeed in a claim of adverse possession. Bd. of Managers of Soho Intl Arts Condo. v. City of New York, 2005 WL 1153752 (S.D.N.Y. 2005). 15 See supra Chapter 2, note 33
49 or unreachable, did indeed object after such unauthorized use.16 The open and notorious element, then, is simply not analogous to the orphan works context.17 Assuming all of the elements of adverse possession could effectively be applied to orphan w orks, the doctrine fails as a feasible solution to the problem for other reasons, including federal preemption. The United States Constitution vests Congress with the exclusive authority to regulate copyrights and patents,18 and under the Supremacy Clause,19 a state law that interferes with or is contrary to a federal law enacted in accordance with that exclusive power is invalid. Although the states and federal government have concurrent powers to enact copyright laws, state law claims are preempted if th e rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright .20 An application of the doctrine of adverse possession, strictly a matter of state law, would transfer all of the original owners rights to the adverse possessor, who would acquire, through state law, those same rights exclusively granted by the federal Copyright Act.21 In the unlikely event that a plaintiff could rebut a judicial finding of preemption, he or she would still face courts r eluctance to apply the 16 See supra Chapter 1, notes 5 7 and accompanying text. 17 Consider also the facts that gave rise to the finding of the Gee court the sole court to adapt adverse possession to copyright law that the record company s use of the recordings was sufficiently open and notorious. 471 F. Supp. 600, 655 56 (E.D. Pa. 1979). See also supra Chapter 2, notes 41 57 and accompanying tex t. If an orphan works copyright owner failed to object to the use of his or her work for twenty one years, particularly if the user blatantly claimed to actually own the copyright, as the defendant in Gee did, then perhaps the doctrine of adverse possess ion would be more appropriate. 18 U.S. CONST. art I, 8, cl 8. 19 U.S. CONST. art. VI, cl. 2. 20 Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 229 (4th Cir. 1993). 21 Advance Magazine Publishers, Inc. v. Leach, 466 F. Supp. 2d 628, 635 (D. Md. 2006).
50 doctrine even in its traditional application to realty22and the lack of precedential authority for such an application.23 Lost P roperty Considering some of the anecdotal evidence presented about orphan works,24 the connection betwe en them and lost property is striking Recall, for example, the Carnegie Mellon University l ibrary study in which some publishers did not even have records of publishing books in which they owned the copyrights.25 In those cases, the researchers actually had to photocopy and send [the publishers] the title page.26 In essence, the owners of these copyrights lost them; they unwittingly suffered [them] to pass out of [their] possession27 and had no knowledge of their whereabouts or how they were being used, if at all. For that reason, the doctrine of lost property appears to be the first theory examined in this study able to provide an analogy to the orphan works problem at least in those cases in which works are orphaned because their copyright owners sim ply do not know they have them and, thus, a feasible solution to resolving it. This solution is discussed at length in the following chapter.28 Public Trust The relevance of the public trust doctrine for intellectual property is that as with rivers, riverbeds, the sea, the seashore29 and other types of land that may require a certain amount 22 See supra Chapter 2, notes 38 40 and accompanying text. 23 Id. at notes 61 62 24 See supra Chapter 1, notes 1 21 and accompanying text. 25 See id. at notes 16 20 and accompanying text. 26 See Comment of Denise Troll Covey, supra Chapter 1, note 16 at 4. 27 1 AM JUR. 2d Abandoned, Lost and Unclaimed Property 12 (2005). 28 See infra Chapter 5, Conclus ion. 29 de Gennaro, supra Chapter 3, note 20 at 1164.
51 of protectioncertain types of creative works, particularly orphaned ones, may also require protection, perhaps from special interests, and be subject to the publ ic trust.30 The argument would proceed like this: Orphan works, like the land underlying navigable waterways, beaches and coastal areas for example, should belong to the general public so that its members may exploit them to benefit society with new creat ive works.31 The publics continual access to and right in these works, this proponent argues, should surely trump the rights of private authors who did not even value their rights enough to make themselves accessible to others wanting to build on or use t heir works in some way. Relying on the constitutional requirement that Congress secur[e] for limited times to authors and inventors the exclusive right to their respective writings and discoveries in order to promote the progress of science and the usef ul arts ,32 which is surely a public purpose, this solution would call for the federal government to serve as a safeguard of orphan works by declaring them subject to the public trust and available and open for public benefit. Although provocative, this argument is likely to fail, namely because the copyright doctrine in this country tends to favor private rights over public access.33 Thus, Congress 30 When discussing protection from special interests in this context, one is perhaps likely to think of the Google Books Library Project, supra Chapter 1, notes 41 42 and accompanying text, and rightfully so. Several legal scholars have expressed concern that the proposed settlement grants Google an initial monopoly on the use of orphan books and will prevent potential future users from having access to them. Hausman & Sidak, supra Chapter 1, note 41 at 421. 31 See Margaret Chon, Postmodern Progress: Reconsidering the C opyright and Patent Power 43 DEPAUL L. REV. 97, 104 (1993) (noting that various writings of historical figures such as James Madison, who introduced the copyright clause in the constitutional convention, and Thomas Jefferson, one of the first patent commi ssioners, indicate that property inheres in the first instance in an individuals freedom to use the knowledge of others rather than an individuals freedom to exclude others from the use of the knowledge.). 32 U.S. CONST. art I, 8, cl 8 ( emphasis added). 33 Maureen Ryan, Cyberspace as Public Space: A Public Trust Paradigm for Copyright in a Digital World, 79 OR. L. REV. 647, 683 84 (2000). As examples of this preference, Professor Maureen Ryan, who advocates for the creation of a public trust doctr ine for material on the Internet, cites the extension of copyright protection to databases, a move that she argues is merely a ruse for granting protection to uncopyrightable facts and ideas, and the
52 which has been known to delegate the job of coming up with [copyright] legislation to interested private parti es34is unlikely to approve any scheme that divests copyright owners of their rights, even if the government is appointed as the public steward of the works. In fact, the first orphan works proposal to go before Congress sought to facilitate the publics access to copyrighted works the bill was even dubbed the Public Domain Enhancement Act but failed to leave committee and was not reintroduced.35 A further obstacle is courts reluctance to apply the public trust doctrine, even in traditional property sett ings, and an unresolved question among them as to whether the theory even applies to the federal government.36 The public trust doctrine, then, does not offer a feasible solution to the orphan works problem. Eminent Domain At first blush, eminent do main seems a promising doctrine from which to derive an orphan works resolution, particularly in light of Kelo s drastic extension of what constitutes public use and the Courts increased level of legislative deference.37 The analogy fails, however, because of incongruence between the elements. In cases of eminent domain, the government takes private property for public use in exchange for providing just compensation to the owner, who is presumably easy to locate. Conversely, the owners of copyrights in orphan works are unknown, or at the very least unreachable, so the government could not provide them just validation of shrink wrap licenses, which enable licens ors to dominate the rights of the public in information transactions through the mechanism of private adhesion contracting. Id. at 682 83. 34 Jessica D. Litman, The Exclusive Right to Read 13 CARDOZO ARTS & ENT. L.J. 29, 53 (1994). 35 See supra Chapter 1, note 27 and accompanying text. 36 See, e.g. District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1082, 1083 (D.C. Cir. 1984) (In this country the public trust doctrine has developed almost exclusively as a matter of state law There has, however, been no parallel development of the doctrine as it pertains to federally owned [property and] neither the Supreme Court nor the federal courts of appeals have expressly decided whether public trust duti es apply to the United States.). 37 See supra Chapter 3, notes 30 41 and accompanying text.
53 compensation even if it so wanted. However, as just stated, the government seems highly averse to elevating public rights over private ones.38 38 In response to Kelo for example, state legislators united [i]n a r are display of unanimity to support eminent domain reform in a manner that cut across partisan lines. John M. Broder, States Curbing Right to Seize Private Homes N.Y. TIMES, Feb. 21, 2006, at A1. By late 2009, fortythree states had enacted measu res that circumscribed the governments ability to exercise its inherent sovereign power of eminent domain. Somin, supra Chapter 3, note 34
54 CHAPTE R 5 RESEARCH SUMMARY AND CONCLUSION Summary When the copyright term of protection was relatively short, and owners were required to delineate their property with notice symbols the intellectual equivalent of No Trespassing signs the copyright law of thi s country was sufficient to govern authors exclusive right [s] to their writings.1 However, recent developments in copyright law including term extensions and an elimination of the formalities of registration, renewal, and notice created the orpha n works dilemma, which copyright law alone is struggling to address. This thesis sought to determine whether real property, which many courts and commentators acknowledge in their intellectual property discussions, can be analogized to the copyright conte xt to provide a feasible solution to orphan works, which currently threate n the production of new works of authorship. Research Question 1 Research Question 1 sought to identify whether any courts have ever applied real property law doc tr ines to the cop yright context. This study found that v arious courts have modified the real property law theories of abandonment and adverse possession to resolve copyright disputes. Courts have found abandonment, however, only in those cases where copyright owners inte nded to surrender their rights as evinced by an overt act demonstrating such intent. Affirmative acts sufficient to indicate an intent to relinquish the protection include d a copyright owners unequivocal declaration that the work is free for use by other s after a two day waiting period; destruction of the only copy of the protected work; and written statements declaring the work to be a gift to the world. Conversely, courts have found acts of omission, 1 U.S. CONST. art I, 8, cl 8.
55 such as the failure to prosecute copyright infringements or adequately promote the copyrighted work insufficient evidence of an intent to give up exclusive rights in copyrighted works. While courts are willing to extend the real property law doctrine of abandonment to the copyright setting in cases in which an intent to surrender the right is unequivocal, they are reluctant to apply the theory of adverse possession to the copyright context, mainly because this doctrine of forfeiture is a drastic measure that should be undertaken stringently, even in its traditional realty application. Thus, courts decline to resolve copyright disputes through an application of adverse possession, relying, instead, for example, on preemption or the statute of limitations. The one exception to this general trend is a 1979 federal district court opinion that explicitly extended adverse possession to copyright when it ruled that defendants wrongful possession of the exclusive rights in a sound recording, unopposed by the plaintiff for more than twenty years, transformed th e infringement into defendants actual ownership of the copyright. Research Question 2 Research Question 2 sought to determine whether these doctrines, abandonment and adverse possession could provide a feasible solution to orphan works; the study found that neither doctrine does so. An orphan work copyright owners failure to make his or her contact information readily available to potential new users of the work is unlikely to constitute the overt act of relinquishment required for a finding of abandonment, particularly in light of the Copyright Acts elimination of notice and registration requirements. Likewise, adverse possession adapted to copyright law by only one court and highly disfavored, even in its traditional realty application, by most oth ers does not present an apt analogy, mainly because of the lack of open and notorious use in orphan works cases. The true owner in an adverse possession case acquiesces to the nonowners open and notorious use of the property, whereas
56 the true owner of an orphan work is unknown, or at the very least unreachable, and does object when he or she learns of the unauthorized use. Research Question 3 Research Question 3 asked whether other real property law doctrinesthose never applied to an intellectual property setting could provide a workable solution. The findings presented in this study show that the orphan works problem is not likely to find its resolution in two of these real property law doctrines : the public trust or eminent domain. More specifically, both courts and legislators are unlikely to strip copyright owners of their private rights even if done for the benefit of the public the crux of both the public trust and eminent domain doctrines. If courts are averse to doing so in cases of real proper ty, their likelihood to creatively expand the doctrine and do so in cases of intellectual property is highly improbable. However, the elements of the doctrine of lost property, although also never applied to the copyright context, are present in some cases of orphan works, and, thus, this theory presents a feasible solution to the problem Conclusion As this study revealed, copyright owners who are unaware of their ownership in certain rights exist and present a scenario that seems to mirror those cases in which property owners involuntarily parted with their property and, thus, lost it Concededly, not all orphan work copyright owners fit into this category. Presumably many are aware of their ownership rights but, for whatever reason, do not advertise or otherwise make known those rights. However, the solution for finders of lost property who want to establish rights in the property can be applied to both scenarios. As a reminder, the finder of lost property who wants to exercise a nonpossessory interest in it must show that he or she was the finder of the property and that it was, indeed, lost. In the orphan works context, the potential user of the copyrighted work may satisfy the first
57 element easily by showing that he or she wants to use the work i n some way and cannot locate the owner. The second element, however, is more problematic. In property law, a showing that the property is truly lost is made by evidence that it had been out of the owners possession for a substantial period of time or evi dence indicating that the owner is unlikely to claim the property. When a copyright owner neglectfully fails to register or provide notice of his or her work, along with contact information, a presumption that the owner is unlikely to claim the property s hould arise. Much like a store customer who does not claim money lost in the store despite the stores notification that it had been found and could be claimed,2 the owner of an unregistered copyright evinces an intent to ignore the value in the work. C ontinuing the store example, the federal government through the Copyright Acts voluntary but highly encouraged notice and registration systems notifies copyright owners that they can easily claim the value in their protected works by making themselves ava ilable to grant licenses. H owever, public policy dictates that a potential user of the protected work or the finder of the lost money in the store example, be allowed to use it. As with lost property, though, the new user obtains only a right of possession or, in this case, a right of use, which the true owner is entitled to recover if he or she ever appears and objects to the use. In the orphan works context, this right to recover would manifest itself as a right to prevent future unauthorized use 2 These facts mirror those in Pase t v. Old Orchard Bank & Trust Co., 378 N.E.2d 1264 (Ill. App. Ct. 1978), in which an Illinois court deemed money found in a bank vault lost after its owner failed to claim it within one year of the finding, even though the bank notified all customers who m ight have been in the area when the money was lost that it had been found and could be claimed. A store, rather than a bank, is used in this analogy, however, to avoid any confusion between lost property, which can occur anywhere, and unclaimed property, which is unique to banks and other financial institutions, which may turn over to the state, without notifying the owner, unclaimed property remaining in accounts after the lapse of a statutorily determined time. See, e.g. FLA. STAT. ANN. 717.117 (West 2010).
58 Proposals for Legislation The lost good statutes governing lost property in some jurisdictions are applicable to orphan works. In Florida, for example, the finder of lost property must turn it over to a law enforcement agency, which must provide notice of the find by an advertisement published once a week for two consecutive weeks in a newspaper of general circulation in the county where the property was found .3 If the true owner does not come forward within ninety days of the find, title is v ested in the finder.4 A similar federal statute could govern orphan works. Under this statutory scheme, t he potential user of an orphan work would report his or her desire to use the work to the copyright enforcement agency, the U.S. C opyright Office, which would provide notice of this desire through a searchable database available online. After the expiration of the statutorily specified time period, the user of the orphan work would not gain title to it but would be permitted to use it without being subject to any liability, including damages. If the potential user does not record in the database his or her desire to use the work, however, the true owner would be entitled to damages but the remedy of profit disgorgement would be prohibited. This stat ute would also make clear that the new user is entitled to exclusivity only as to his or her addition of new elements. That is, copyright protection would extend only to the material contributed by the author of the new work, who does not gain any exclusi ve right in the underlying orphan work.5 This result that a n orphan work be free for use in a new work when its owner does not come forward after a specified period of time is almost required by the Constitution because 3 FLA. STAT. ANN. 705.103(2)(b)(1) (West 2010). 4 Id. 705.104(1). 5 This requirement is in accordance with 17 U.S.C. 103(b) (2006) (The copyright in a compilation or derivative work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.).
59 orphan works like all copyrighted w orks, exist only for the benefit of the public. That is, the constitutional protection for copyright was created solely to provide incentives for the expressive community to maximize the output of works of authorship. However, that purpose does not exist with orphan works ; these authors are not seeking the financial rewards of their creative effort s to advance the public welfare through the ir talents. In fact, they seem to ignore the value in their works, and copyrights in orphan works have actually had the opposite of their intended effect: The y produce a dis incentive to create new works because of the fear of legal liability. Orphan works are akin to unproductive, useful land that cannot be exploited for the growth of creative activity in this country ; and since their copyright protection exist s only for the welfare of the public, both the Constitution and public policy dictate that they be free for use. The proposed statutory solution the Orphan Works Act of 2008, does not effectively address this constitutional dilemma because it places the onus on potential new users, limiting the infringement damages against them only if the y performed a reasonably diligent search for the copyright owner. This requirement, as well as the vagueness of a reasonabl y diligent search, imposes an additional burden on new users tha t could serve as a disincentive to produce new works, in ironic contravention of the constitutio n al mandate that copyright exist solely to benefit the public by stimulating the production of creative works The solution presented in this study, derived wholly and modified slightly from the doctrine of lost property, strikes the balance between a copyright owners right in his or her creation and the publics interest in the production of new c reative works. Perhaps more importantly, though, it highlights the fact that other bodies of property law exist as a way to balance private and public rights in copyright M ost of the real property law doctrines examined in this study could not be effect ively analogized to orphan works H owever, perhaps an analogy
60 to more closely related areas of property law would yield more feasible solutions both qualitatively and quantitatively. More specifically, future research studies could examine and, when appropriate, analogize trademark, patent, and trade secrets jurisprudence to the orphan works problem Moreover, a future researcher could conduct a fiftystate survey of lost goods statutes and propose a federal law or amendment to the Copyright Act using t he precise language contained in and compiled from these state statutes. Such a study would further emphasize the usefulness of examining other bodies of law when trying to develop additional resolutions to this difficult dilemma that pits the public good against the private right.
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66 BIOGRAPHICAL SKETCH Kristen Rasmussen, born and raised in Pensacola, Florida, received her J.D./M.A. M.C. joint degree from the media law program at the University of Florida in May 2010. She received her bachelors degree, magna cum laude in news editorial journalism in 2000 from Texas Christian University, where she was man aging editor of the TCU Daily Skiff an d a free lance reporter for the Fort Worth Star Telegram After graduation from TCU, Kristen reported for The Providence Journal and, after that, for the Pensacola News Journal During her summers in the graduate program at UF, she clerked for a federal judge in Pensacola and in the Office of General Counsel for Gannett Co., Inc., which publishes USA Today and owns more than ninety newspapers and t elevision stations nationwide. After graduating from UF, Kristen served as a legal fellow at the Reporters Committee for Freedom of the Press in northern Virginia.