Newspapers / The Brunswick Beacon (Shallotte, … / Feb. 5, 1987, edition 1 / Page 5
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4 } Newspaper Ad Copyright Decision Upheld THE BRUNSWICK BEACON; Thur^y, F-bniary s. IW-Fsgc 5^A (('uikUnuctI rrum Prccctljag Page) iMi to Uic ndvortiscr. ITic court reasoned that to hold that the preparer had die copyright would produce an absurd result. The absurd result was that whenever the adver* tiscinent WH.S prepared by a third party, such as an advertising agency, puhtiention of the advertisement would Infringe the copyright. The n.ssunicd absunlity is unlnie, of course. The copyright Ls not infringed when the advertisement is published In acconlance with the Intention of the parlies. The advertiser unques* tionably lias a license to do that. When the Canfield case was ap- pealed to the Court of Appeals for the Fifth (hmdt, it expressly declined to pass upon Uie ownership of the copyright but held Uie copyright in valid because of Insufficiency of notice. Unlike the situation here, there was no individual copyright notice on the advertisement, as n»- quired. The presence oi a copyright notice on each copyrighted advertisement in the Beacon may alleviate substan- lialiy the concern of the court in Rrat- tleboro i’ublishing Cu. The adver tisers are not left In a continuing stale of ignorance about the copyright claims of the newspaper. Moreover, tlie only person with any incentive to enforce the copyright is the publi.shei of the newspaper. Short of some possible misuse, the adver tiser hjis no incentive to prevent rnpid)lication by another newspaper at a ver>- cheap rate, but the newspaper publisher may undersian- !ably he concerned about what it regards as unfair competition. Considerations of fairness and ap propriateness, however, are of little concern here. Congress nas made ihe choice, and it is for us to apply the statute as the Congress intended. As rewritten in 1976, the Copyright Act requires the conclusion that the copyright Is owned by the newspaper publi.shcr whose employees prepared it, unless there is a written agree ment signed by it and the advertiser that the work should be considered work for hire. III. The district court absolved the publisher, Caroline Schock, of the Free Press from any personal liabili ty. She liad the largest financial In vestment in the Free Press and the nominal title of publisher, but she had no real authority and her duties were menial. Ill aoditiuii iu suiiiiioiy (/enaiuSs, the district court held that the infr ingements were willful and awarded attorneys' fees, the amount of which is yet to be determined. We affirm Iwth of these rulings. The case is to be remanded for far ther proceedings to determine and assess the attorneys’ fees. AFFIRMED AND REMANDED HALL, Circuit Judge, dissenting: I cannot agree with the majority's conclusion tliat the copyrights in this case arc owned by the publisher of the newspaper whose staff prepared the ads. For this reason, I respectful ly dissent. Neither the language of the amend ed statute nor its legislative history convinci'-s me that Congress intended to change the employer-employee relationship for copyright purposes or to construe it so narrowly as to mandate the result reached by the majority in this case. In my view, the district court in Caafield v. The Pc&- ohatoula Times, correctly decided this issue, when it held that under the 1976 Copyright Act, as under the previoiLs statute, the advertiser—not the newspaper—is the copyright owner of the ad commissioned by the advertiser but designed, prepared, and printed by the newspaper. As tl*e district court in Caafield noted, the arrangement between an advertiser and a newspaper which creates and runs the ad ^ not a tradi tional employer-employee relation ship. Nevertheless, the ads in this case, as in Canfield, were created at the insistence and expense of the advertisers, who retained the right to control and supervise both the nature and content (tf the ads. In fact, one of 9 SHALLOTTE the adveriisefs In the iriatant case, the co-owner of a car dealership, originated a slogan used In his ad. Regardless of whether the adver tiser's control Is ever exercised, however, the only rational conclusion is that Congress under the 1976 Act intended for the au pfOuuCcd by tbe newspaper to be a work made for hire. This conclusion is fuiiy supported by the language of Section 201(b) of the 1976 Copyright Act and its legislative history: In the case of a work made for hire, the employer or other p4>rson for whom the work was prepared is con sidered the author for purposes of this title, and, unless the parties have expressly agreed otherwise In a writ ten Instrument signed by them, owns all of the rights comprised in the copyright. Comments contained in the House Report accompanying this section confirm that: Section 201(b) of the bill adopts one of the basic pniicipica Cf the present law: that in the case of works made for hire the employer Is considered the author of the work, and is regard ed as the initial owner of copyright unless there has been an agreement othenvise. The subsection also re quires that any agreement under which the employee is to own rights be in writing and signed by the par ties. The House Report further demonstrates Congress’ rejection of certain amendments to the work- made-for-hire doctrine proposed by I COMPLETE CLEANINE I LAUNDRY AND 1 fiLTIPATIAH SFRVICES I I 754-4435 ON. FRI. 7-6, SAT ft-1 •motion picture screenwriters and composers: Their proposal was for the recogni tion of something similar to the 'shop right’ doctrine of patent law: with some exceptions, the employer would acquire the right to use the empicyee's work to the extent needed for purposes of his regular business, but the employee would retain all uUier ligiiia os lOTig as u€ w she refrained for the authorizing of com peting uses. However, while this change might theoretically improve the bargaining position of screen writers and others as a group, the practical benefits that Individual authors would receive are highly ccxi- jeclural. The pcsumptlon (sic) that initial ownership rights vest In the employer for hire is well establshed In American copyright law, and to exchange that for the uncertainities of the sh(^ right doctrine would not only be of dubiixis value to employers and employees alike, but might also reopen a number of other issues. THE IX)NG BILL of the Oystercatcher gives us a clue to Its feeding habits. Bills Of Birds Give Clues To Diet 1^ Just as we can Identify the food animals are likely to eat by the shape of their mouths and teeth, wc can speculate on diets of birds by the shapes of their bills. Birds have bills shaped for cracking seed, for probing mud, for digging insects from bark, for catching fish, for sucking nectar from flowers, or for scooping food from the water. Bill Fover The bills of hummingbirds are straight and slender for probing deep into flowers for nectar. Moat spar rows, warblers, kinglets and similar small birds use their short bills for eating small seed, berries and In sects. Despite the majority’s conclusion to the contrary, its holding In favor of me ocmc-vq uOcs produce an abstin! result, whereby the advertisers become infringers of the party they hired to produce their ads. Surely, this result was not what Congress In tended when it passed the 1976 amendments, as demonstrated by its specific rejection of the shop right doctoiic. For Uie foregoing reasons, I would reverse the judgment of the district court. Along our coast, many of th** shorebirds depend upon the abUity to probe the sand and mud between the tides in search siuail crusiacea, snaiis, etc. Their bills are long and slender and the holes leR In the sand attest to the uses to which they are put. Some of the birds with this type bill are the sandpipers, willets, whimbrells, knots, dunlins and avocets. Other waterbirds have bills design ed for catching fish. The herons, Ibis, egrets, and aruhinga use their bills la stalking and overtaking frogs, crabs and minnows for their nourishment The hawks, owls, osprey, kites and other birds of prey have heavy, short, curved bills which are sharp and capable of tearing apart the fish or mice or Insect? they usually catch with their talons. Some of the seed eaters have large, hca\’y bills with which they can crack the outer shells of seed to get to the food Inside. Cardinals, bluejays and grosbeaks are examples of these seed eaters. Woodpeckers and nuthatches use their thin, poLnted bills to dig into the bark and trunks of trees for Insects. Birds using their bills for scooping fish from water are the pelicans the spoonbills. Pelicans have hooked up per ma.ndib!es and distensible throat pouches and can grip large fish and bring them into Uie “baskets” or poucirea. SpoonbUb place thdr wtd* spoon-Uke bills underneath the water and move them from side to side like a windshield wiper as they walk along and “spoon-up” small fish and oUier marine life. Bills of birds give us clues about what they do for food. We can Infer a great deal about the bird’s diet by ex amining its bill, for the bill has been formed to handle the food the bird eats. A/f 111cTj1jIj£^u11 likciViUsl About Our Ml _ ome Equity Loan Is HavingTb Pay The Interest Because the interest is all you have to pay until a home equity loan from NCNB reaches maturity LineOne® Equity is a revoking line of credit based on the equity in a home. And it’s one of the few consum.er loans for which interest deductions may still be allowable under the new tax law But it’s different from most other home equity loans in that it allows you to pay as little or as much of the principal each m*onth as you choose.\bu even have the option of only paying the interest each month. 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The Brunswick Beacon (Shallotte, N.C.)
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Feb. 5, 1987, edition 1
5
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