• The Cold War and the Copyright Act

    by  • December 5, 2012 • copyright

    There’s a fascinating bit of cold war history in the Copyright Act – who knew?

    The story is told in Hendricks & Lewis, PLLC v. George Clinton. George Clinton, of Parliament and Funkadelic fame, owes the law firm Hendricks & Lewis a lot of money. The firm obtained two judgments against Clinton and sought appointment of a receiver to take control of four of Clinton’s copyrighted works.

    But it turns out that the Copyright Act limits transfers of copyright by a governmental body except in the case of bankruptcy:

    When an individual author’s ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

    17 U.S.C. § 201(e). The Hendricks & Lewis court tells us that the provision was added to the Copyright Act in 1973 to keep the Soviet Union from seizing ownership of works produced by dissident authors.

    But the language is not limited to acts by foreign governments. In In re Peregrine Entertainment, Inc. the court avoided the problem by construing the language to mean actions initiated by governmental bodies. The Hendricks & Lewis court disagreed with this interpretation, though:

    The language of the statute does not support this conclusion, however. There is no indication that only acts initiated by the government are precluded. The statute bars not only the seizure, expropriation, or exercise of the rights of ownership by any governmental entity, but also the forced transfer of rights by those entities. If the statute were construed to allow the government to transfer copyrights as long as a private party initiates the action, the evil Congress intended to avoid could be accomplished simply by generating a money judgment against the author.

    Nevertheless, Clinton couldn’t satisfy the conditions precedent for the statute to apply: the works were not created by an individual or, alternatively, the copyrights had previously been transferred voluntarily. The four works that were to be put into receivership were created as works made for hire for Warner Bros., thus they were not works of an individual author. (Warner Bros. transferred the copyright back to Clinton in a 1993 settlement.) And even if Clinton had been the individual author, Clinton assigned the copyright to Warner Bros., thus the works had been previously voluntarily transferred.  The court therefore assigned a receiver for the works.

    Hendricks & Lewis, PLLC v. Clinton, No. C12-0841RSL (W.D. Wash. Nov. 27, 2012).

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