Copyright Law: Captain America Comic Artist Kirby Copyrights KO'd - SDNY

Captain America Comics #1 (March 1941) Copyright Marvel

In Marvel v. Kirby, 10 civ. 141 (SDNY July 28, 2011), District Judge Colleen McMahon of the Southern District of New York determined that Jack Kirby's artistic contributions to such characters as The Incredible Hulk, The Mighty Thor, Spider-Man, Iron Man, the X-Men and the Avengers were works for hire under the 1909 Copyright Act.

Accordingly, the Court found notices of copyright termination sent by Kirby's heirs to be invalid and granted summary judgment to Marvel based largely on the written testimony of Stan Lee.

The decision is detailed and interesting for students of comic books and those interested in the "instance and expense" test of the 1909 Copyright Act.

The complaint is here.  Decision below:


Marvel v Kirby McMahon Order 7 28 11

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 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

9th Circuit en Banc: Preemption of Contracts Involving Ideas, and Judges on YouTube: Gnarly!

The 9th Circuit Court of Appeals has a channel on YouTube. A couple of weeks back, I met Chief Judge Alex Kozinski at a Federal Bar Association cocktail party with the greeting "Hey Judge I saw you on YouTube!" This is the type of greeting that New Yorkers think Californians will enjoy. I survived the greeting to have a good discussion. The Cassirer case, the Ninth Circuit en banc video on YouTube here.

But once again, I am drawn back to YouTube for a wonderful argument on an important case (thank you Anonymous tipster). My initial post on the 9th Circuit's original decision in Montz v. Pilgrim Films here.

I rarely take a position in copyright cases (as opposed to Nazi art looting cases) saying that a case is right or wrong. Sometimes I say that a copyright case is well-reasoned. But Montz v. Pilgrim Films, as you can see from my earlier post here, is a case where I opined that the 9th Circuit was "clearly incorrect".

Now with the argument on YouTube, you too can access the wonderful world of copyright and the cutting-edge issue of preemption. Here, the issue is whether or not a state can regulate contracts governing the buying and selling of ideas. This is big, heady, important stuff and this case is of extraordinary importance. I am happy to see the Ninth Circuit take it en banc.

In Chapter 10 of Copyright Litigation Handbook "Removal from State Court and Preemption" I cover the tension between the Copyright Act and state law.

More Copyright Litigation Blog posts on preemption here.

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

How To Testify Before Congress: It's a Whole New World - January 13

Samuel L. Clemens -  Mark Twain - Congressional Gadfly

Image Courtesy Wikipedia

Please join us this Thursday to get Bill LaForge's great new book:  How To Testify Before Congress.

The book features Samuel Clemens (p/k/a Mark Twain)'s testimony before Congress on copyright, which is a big hoot.

Thursday, January 13, 2011, 6:00 PM – 9:00 PM
3 MCLE Credits: 1.5 Skills; 1.5 Professional Practice
New York County Lawyers' Association http://www.nycla.org/
Testifying before Congress is different from giving testimony in any other forum – including courts of law – because the rules are different and the deck is stacked. This CLE will cover preparation and delivery of
congressional testimony from A to Z: the

• context and climate of the committee hearings process;
• how hearings are organized and staged;
• who should testify and how to get invited;
• the types of hearings and committee hearing players;
• preparation of a stellar written statement;
• rehearsal of the witness;
• key ingredients to superbly delivered oral testimony;
• how to respond to committee questions, including handling hostile inquiries and interrogators;
• how to excel as a witness with adequate preparation; and,
• strategies to maximize (or minimize) testimony impact and how to mitigate potential communication crisis.

This program provides a must have tutorial on preparing and delivering testimony before Congress and in Congressional hearings for use by lawyers, agencies, associations, corporations, military personnel, NGO’s
and state and local officials.

Attendees at the program will receive a copy of Testifying Before Congress, by William N. LaForge, The Capital.Net, Inc. ©2010.
 
Program Co-Sponsor: Southern District of New York Chapter of the Federal Bar Association

Program Chair and Moderator: Raymond Dowd, Dunnington, Bartholow & Miller LLP

Faculty: William N. LaForge, Winstead PC, author of Testifying Before Congress
Luke McGrath, Dunnington, Bartholow & Miller LLP
Jeff Richardson, Starkman Associates

Link to flyer with full information here:
http://www.scribd.com/full/46680881?access_key=key-1ckb9vquh4vg3kxalu24

 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

10th Cir: Golan v Holder - First Amendment Challenge to Berne Convention's Taking Works Out of Public Domain Retroactively Fails

The 10th Circuit ruled yesterday against a group of distributors of foreign copyrighted works that had fallen into the public domain, but which Congress had restored copyright status by 1994 legislation implementing the Berne Convention, following the Uruguay Round of trade negotiations.

The group, represented in part by Prof. Lawrence Lessig and the Center for Internet and Society, included a man who had composed a marching band song based on a Shostakovitch symphony that had fallen into the public domain.

The situation arose because the US used to have a rule that if you didn't put a copyright notice on your work and register it with the US copyright office, it would fall into the public domain.   Many distributors of foreign copyrighted works failed to put proper notices on them or register them with the copyright office.  Notices and registration are known as "formalities".   For a while, the US was a rare country that required formalities, most didn't, pursuant to the Berne Convention.   The US enacted the Berne Convention Implementation Act in 1988 abolishing the requirement of formalities, but it did not restore copyright protection to foreign works that had fallen out of copyright.  In 1994, Congress restored copyright protection to these foreign works (it was not automatic and involved some bureaucracy).  People who'd used the works or created derivative works were supposed to work out reasonable license fees or have them fixed by the courts.

You can find the requirement of formalities in the Copyright Act of 1909.  I have included the entire 1909 Copyright Act for easy reference as an appendix to my Copyright Litigation Handbook.

The decision has a lot of interesting legislative history, and it's got a lot of litigation history.  (From my memory) it was in district court where plaintiff lost, there was an appeal that plaintiff won with instruction to perform a First Amendment analysis on remand, then plaintiff won again with the district judge holding that the statute violated the First Amendment.  Now, the 10th Circuit reverses, link to decision below:

10th Cir: Golan v Holder - First Amendment Challenge To Removal of Copyrighted Works From Public Domain Fails



Purchase Copyright Litigation Handbook from West here