Newspapers / The Brunswick Beacon (Shallotte, … / Feb. 5, 1987, edition 1 / Page 4
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Opinion Page a. ^ THE NOMSWiCir^lEAi^N Edward M. Sweall and Carolyn H. Swoait PuhUshon Edward M. Swcatt Editor Suaan Uahrr IVeum Editor' Marjorie Megi%em .Aaaocutr Editor Elta Smith .......Sta// ITriler Johnny Craig. Spo^ Editor Mary Polts Office Manmger Cec«dl(9 Gore. Adverthlng HepreMcntative Tammie Galloway & Dorothy Brennan Typeaettera Bill McGowan Preaatnan Brenda Clemmons Photo Technician Clyde And !^!attie Stuiii, Clrntmcna.......CirculMtion Page 4-A Thursday, February 5,1987 what Have We Got To Lose? $100,000! Prete.'Td your ship’s finally come in or that you’ve inherited $100,000. "Buy” Uu-ee common stocks from the New Vuik Stuck Esdiangc «T&1 watch what happens. That’s what Don and I are going to do. if you’d like to join us. We’re both entering the ‘Stock Market Challenge” game run by a majw dai ly in the state. i?F Susan Usher f4 Newspaper Ad Copyright Decision Upheld It was Don's idea. One of his bud dies, Roger, finished in the top 100 contestants last year and has a T-shirt to prove it Don, being the T-shirt fanatic he is, probably wants one of his own. ’Fhat’s the only thing I can figure, because watchiiig money grow isn’t one of my hobbies or Don's. But who know$? Maybe it will be after this contelt stock market, with a little help from the public library, public TV and selected iTUteavines I thnneht about calling my sister for help, or perhaps Clay Fairley, a fellow Toastmaster and a stockbroker. Then I decided to make it a do-it-yourself project, bas ed on research. I’ve since narrowed my list down to personal care pro ducts, health cars on/t JWV **eo/.rat kiUer.” When Don first brought up the idea of entering, I balked, citing a general lack of knowledge and a failure to understand the rules. Inside a little voice was saying, “You’re asking the wrong Usher girl, you know. Carol's the one who likes playing with money and the stock market. She’s the accounting major.” Playing the stock market challenge could be fun, you know. We’ll be getting regular reports on how we're faring in comparison with fellow "investors” and we’ll have an incentive to start following the ex change listings. By the time the game ends, who knows? We may become bullish over the market and invest real money. There are only about 10 stocks I even know the listing abbreviations for. And I’m the person who waited until my money market account wasn’t paying any more interest than my savings account before looking for a better place to invest. Must folks acted a little sooner, I hear. But then I thought about it awhile and reconsidered. In a recent bowl game poll, news partner Etta and I batted better than 6C percejil and we had chosen our teams on the basis of sentiment and regional favoritism. You know how that goes, any ACC team is my favorite if it’s playing a nm-ACC, etc. Maybe we could do as well on the The other night I slipped into the dime store and bought some graph paper and a fine-point pen. Don doesn’t know it yet, but we’re going to chart our stock groups each day—on separate sheets of paper. By the time yoy read thus I will have chosen my three specific stocks, mailed the list with a $1 check enclosed and crossed my fingers. Don won’t know any more than you what my choices are. Come May, with any luck, he may be In Cor a big surprise. Maybe my stocks will do as well as his—or even better! In any case, what have we got to lose? Heart Disease Needs AAore Research He had everything going for him. At age 52, ho had raised a family, retired and was looking forward to doiiig a let of fishing. But then a killer struck—taking his life as it had his mother and brother before. It hit him suddenly and without warning, and ended what could have been a good long life. He was my father. And now he’s one of the statistics you read about, a victim of heart disease. There will be many others who die from this disea.se during the year, arid sQuic of tirerii will be people you know. Heart disease kills more people each year than most other diseases combined. Last year over $50,000 people fell victim to it, according to Dr. Mike Bauerschmidt, president of the county Heart Association chapter. He .»aid 1,000 people a day die from heart-relfltpd di.seases. The higg&st causes of the disease, he said, are a high cholesterol diet, smoking, diabetes, high blood pressure and having a family history of the uidcaac* Bauerschmidt said more research is needed to study things like heart disease and hereditary and how our lifestyles are linked to it Tiiat’s why, he said, February has The U.S. Court of Appeals for the Fourth Circuit, in a precedent- setting 2-1 decision Jan, 23, ruled in favor of The Brunswick Beacon in its copyright irtfringement suit against The Burnswick Free Press, another Shallotte weekly newspaper. The lawsuit was filed April 13, 1984 by the Reacnn. It was first heard on Aug. 30 in the U.S. District Court in Wilmington by federal Magistrate Charles K. Me- Cotter Jr., whose ruling in favor of the Beacon was appealed by the Free Press. McCotter's findings were upheld by Judge Ear! W. Britt, who in June, 1985, j'ound the Free Press guilty of copying ads and permanently enjoined the Free Press from publishing further copyrighted material from the Beacon. The Beacon was awarded damages of $6,000, plus ^'reasonable attorneys fees. ” The Free Press appealed all fin dings of the lower court and was granted a slay of execution of the civil Judgment pending a decision by the appeals court. The appeals court heard arguments in the case Jan. 7, 1986 in Richmond, Va. by If'. Thad Adams H! of Charlotte, attorney for the Beacon, and Larry L. Coats of Raleigh, attorney for the Free Press. The case was heard by Senior Circuit Judge Clement Haynsworih and Circuit Judges Phillips and Hall. Judge Hal! did not agrve wiih the majority deci sion to uphold the lower court in all respects. Senior Judge Haynsworth wrote the decision for the majority view, while Judge Hall wrote his dissenting opinion. Following is the complete text of the opinions of the appeals court, with the exception of legal references. —Editor's note copyright on three ads run by the Beacon. The heart of the controversy is whether the Beacon, whose employees designed the ads and prepared the layouts, had the right, as author, to copyright the ads or whether, uiiidcr the “work made for hire” doctrine, as defined in the 1976 Act the right to claim a copyright belonged solely to the adverti^rs. The district court held that under the statute, as amended in 1976, the newspaper that developed the layouts, not the advertisers, was en- tiUed to claim the copyright It assessed the statutory penalty for each of the three infringing ads and awarded attorneys’ fees, as yet undetermined, upon a finding of willfulness in the violations. We affirm in all respects. I. The Beacon employs persons capable of developing advertising layouts and supplying artistic, pic torial and graphic material The Free Press has no such capability. When an advertiser wishes to run an advertisement ifi the Beacon and he does not already possess a layout, employees the Beacon will develop a layout meeting the advertiser’s re quirements. In those instances, the Beacon claims the c(^yright It in cluded notice of its copyright claim upon each of the adver^ements in volved in this litigation, as well as its general copyright notice of the con tents of the newspaper. The Free reproduced the three advertisements, deleting the Beacon’s copyright notice, but other- newspaper and prevent the adver tisers’ subsequent use of it elsewhere. In that case, it appeared tha \ U9C ttuveiudcia iwu n€V informed of the newspaper’s claim of the right to copyright the adver tisements. In 1969, Judge Friendly wondered whether Congress could possibly have intended this expansive ap plication 01 Uie work made for hire doctrine. Under Article I, Sub-section 8 of the Constitution, Congress is authorized to enact legislation secur ing to authors the exclusive right to their work, but the work made for hire doctrine protected employers of authors and those who commissioned others to write, paint, sculpt or com pose for them. Judge Friendly recognized that the extension of such protection, to some extent, was essential, but he thought that such extension should be limited to situa tions in which the court could fairly imply an intention on the part of the actual author to assign the copyright. |In 1976, Congr^^ substantially «wT0te'the Cop^^l Xct arid made the new statute effective on January i, 1978. For UK first time it included a statutory definition of "work made for hire,” which reads in pertinent part: uiaking w change in two of them and slight change in the third. n. Under the 1909 Act, the “work made for hire” doctrine flourished. Of course, employers were r^arded as the authors, or creators, ctf works prepared by their cnsployecs is the (1) a work prepared by an eziqiloyce within the scope of his or her employment; and (2) a work specially ordered or commissioned for use as a contribu tion to a collective work, as a part ctf a luotiiHi picture or other audiovisual work, as a translation, as a sup- piementary as a compiiHuOn. as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument si^ed by them that the work be cim- sidered a work made for hire... * Efia Smith been named National Heart Mon th—to draw attention to this killer. During this month the local association is joining those across the country to raise money for research aimed at eliminating the disease. lids month the local chapter’s an nual fundralsirig drive volunteers will be going door-to-door asking for donations to the National Heart Foundation. Giving a small donation is one small gesture that could make a dif ference in whether some'^ you know will become another statistic. When a heart fund volunteer comes knocking on my door, I plan to give. It won’t bring t«ck my father and the many others who have died from this HAYNSWORTH, Senior Circuit Judge: lire contestants in this action are two small, competing, weekly newspapers in the town of Shallotte in eastern North Carolina. Tne defen dants, publishers of The Bninswtck Free Press, copied and ran ads that previously appeared in The Broaswics Bcscoa, published by the plaintiffs. They did so with the con sent cf the a!ivc.tisers, Isit at nnitf»h lower rates than those charged by the Beacoa. The copying continued after fruitless protests and an unfulfilled promise that the defendants would inform advertisers of the Beaem's copyright claim and would run copies of ads for which the Beacon claimed to be the copyright owner. This action sought redress for statutory infringement of the course of their employment, but the doctrine extended far efield to reach worics created or prepared on com mission. While the stated endeavor was to ascertain and enforce the In tention of the parties, the usual presumption was that the commis sioner held a copyright upon any work created by another at the in stance of the commissioner, at the conmissioncr’s expense, and for his benefit. Before 1978, it mattered lit tle, if at all, that the commissioner neither possessed nor exercised the right to direct the manner in wMch the work was done. When .«nich rules prevailed, there was little surprise in the holding that the cc^yrighi belonged to the adver tiser, even though his advertisement was designed and prepared by the employees of the newspaper. It was thought inequitable to small businessmen, who probably knew nothing of copyright law, to hold that the newspaper could copyright advertisements prepared by the ine second part « the ueliAltion has no application to this case. Even if the newspaper .is a collective work or a conciliation, there was no agree ment signed by the newspaper and advertiser designating these adver tisements as works for hire. This part of the definition is permissive only and is effective only if both parties execute a written agreement that the work is for hire. Part one, of course, preserves the old rule that a work prepared by an employee within the scope of hU employment is a work made for hire. As Professor Nimmer observes, however, the Copyright Act contains no definition of the term "employee" or "acope of enudey- ment” The meaning of those terms is to be derived from the general law of agency. Those who prepared these adver tisements for publication were employees of the Beacon, and the work for hire doctrine vests the right to copyright in the newspaper publisher. In the circumstances of this case, nothing suggests that Beacon’s employees who prepared the advertisements were employees of the advertisers working in the scops of their einployment by the advertisers. The result of Brat- U^boro Publishing Co. was not based upon an assumption of any such employment. It was based upon the old doctrine of commissioned work, which is inapplicable here under the current statute because oi the absence of a signed, written agree ment. In some circumstances, temporary and transitory situations exist in which an employee of one may be regarded as an employee of another. An example was presented in Aldoa Accessories Ltd. vs. Spiegel, Inc. In that case, an official of the plaintiff conceived an idea of devel^lng and marketing statuettes of a unicorn and of a Pegasus. He submitted sket ches of his mythological horselike creatures, rearing with forefeet ex tended and their full tails resting on the base, to a Japanese firm produc ing porcelain statuettes and to a Taiwanese firm producing brass statuettes. While he was not an artist or a sculptor, in each instance he spent days working closely with Japanese or Taiwanese artists and artisans to produce a clay model that satisfied his expectations. In each in stance, a clay model was prepared after which Ginsberg, AMon’s rf- ficial, directed alterations and ad justments in the shapes, attitudes and proportions. In great detail he directed such things as a movement of a leg and alterations of the attitude of the head, or the flow of the mane. Ail of the work producing the clay models was done In his presence and under his immediate direction. There was abundant basis for the court’s conclusion that Ginsberg had exer cised the right to direct the manner in which the work was performed. He had much more than the right of ap proval or rc)ection while he was directing the artists and artisans in every step of the process of creating a model that was satisfactory to him. The court concluded that the Japanese and Taiwanese artists and artisans, under those cUvurusuinc'es, were temporary employees of Aldon’s, acting in the scope of their employment In producing the clay models. The coiut concluded that Aldon had the right to c(^yright the porcelain and brass figurines. They bore a copyright notice. There are no con^ai'able cir cumstances here. Without doubt the advertisers told the Beacon what they wanted, but there is no sugges tion that they supervised Beacon employees as they developed the advertisements or directed the man ner of the work’s completion. In a case involving facts similar to this case, a district court in Loui siana held that the copyright belong- ;iContlnued On Following Page) disease, but it will help furiher the fight against it It’s a fight I take very seriously. And if my father were alive today, I think he would agree with me that it’s a fight we can’t afford to lose. LETTERS TO THE EDITOR Jo/n T J.L T'_ lo i ■ rr&senr rosnive image Write Us To the editor: Regarding Holden Beach annexa- tim of causeway area. Causeway businessmen, come let us look at another side of the coin. Our business to a large degree is to identify and establish access and parking, including a picnic area with restrooms and boat launching ramp under the new bridge. They are to be commended for their efforts to welcome and accommodate visitors. The Beacon welcomes letters to the editor. All letters must be signed and include the writer’s address. Under no circumstances will unsigned letters be printed, letters should be legible. The Beacon reserves the right to edit Ubeloas comments. Address tetters to The Brunswick Beacon. P.O Box 2558 Shallotte, N.C. 28459. .-.r- between the beach community and causeway business district I (on well understand the town’s reluctance to tax themselves to pro vide service for tourists while the business district has a free ride. I.at Holden Beach. Therefore, we need the good will and cooperatioti of the Island residents to encourage vislUs^ to keep coming. Present town officials are working We recently faced the nightmare (rf lost business and drastically-reduced property values due to the threat cc ,the bridge being relocated. Let us not risk loss again by creating hostility to* juii'i iOgeuier uut We uJght p*" sent a positive image of welcome to our visitors so they will want to return again and again. Carvln Robinson Robinson’s Variety Gray Gull Motel Holden Beach Causeway KqBD O' ^nm/nn 9 To the editor: Enjoy your n«per very much; please renew our subscription for another year. Don’t want to miss any pepcia. Robert C. Monroe Sr. Aberdeen
The Brunswick Beacon (Shallotte, N.C.)
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Feb. 5, 1987, edition 1
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