In This Issue

Magazine and Newspapers: Is the Online Version A Copyright Infringement?

An often overlooked issue is whether the publisher of collective works, such as a magazine, or newspaper could republish those works in new formats or media without infringing the copyright of the individual authors whose works make up the compilation.

Fuelled by a strong demand for digital formats of all forms of copyrighted works and a rapidly expanding cybermarket, hardcopy publications are simply publishing electronic versions online. An essential and overlooked distinction between the hardcopy and the online publications is the ability of the consumer to access each separate copyrighted work of the compilation, independtly and standing alone. Many authors and publishers have NOT given thought to the copyright implications.

Authors and Publishers should pay attention to two U.S. cases: New York Times Company, Inc. v. Tasini, and Faulkner v. Minscape. In New York Times Company, Inc, six freelance writers claimed that the inclusion of print articles in electronic databases and retrievable in isolation, amounted to a copyright infringement. The U.S. Supreme Court agreed "because the databases reproduce and distribute articles standing alone and not in context".

The electronic version of a publication is a particularly troubleseome issue where an article or image becomes a popular download, generating significant revenue. The Supreme Court ruled that the author should be entitled to additional income if there is a demand for the article standing alone from the collective work.

Given the ruling in New York Times Company, Inc. publishers need to negotiate for the inclusion of the right to republish online in their initial contract with freelance contributors. The authors on the other hand must recognize the economic signifance of the grant of such a license and if agreed to, the paycheck should reflect it. Do not assume that because you have the right to publish hard copies you may publish electronic copies without the prior consent of the author.

VIVIAN M. WILLIAMS & ASSOCIATES

212-618-1791

Keeping your Copyright Under Tight Security

Every minute, every day millions of copyrightable works are falling into the public domain permanently. These are cases of squandered copyright. The internet has made it very easy to publish, resulting in that authors uploading their work without the necessary formalities required to preserve their copyright. Once this happens the work falls into the public domain-free for all the world to copy.

A common error is the lingering perception by many authors that common law copyright survives publication of the work. Common law copyright exist from the moment of creation and continues while the work remains unpublished. Once the work is published, common law copyright terminates.

During the early development of copyright law, copyright was indivisable. Only one entity could have held the copyright for a particular work. Back in those days, it was publishers who registered the copyright and therefore, retained all of the copyright.

One of the greatest developments in copyright law is the divisability of copyright. The current state of the law allows more than one persons or entities to hold copyright in the same work. A publisher could copyright the specific rights granted by the author and the author could copyright the remaining rights he or she retains.

F rom the moment of publication, the author's only source of protection is statutory copyright. For this to be obtained certain formalities must be followed, if not the work falls into the public domain. These formalities may be performed by the author or the publisher.

These necessary formalities are not waived for works published in an electronic platform. Therefore, before electronic or any other form of publication, the author should first comply with the statutory formalities.

VIVIAN M. WILLIAMS & ASSOCIATES

212-618-1791

Contempt for Prejudicial Publication - Not Likely At Appellate Level

What is the likelihood that a publication would be found in contempt of court on grounds that it is prejudical to a matter that is being appealed? The answer will almost invariably be never. Yet there is a tendency for editors and commentators to treat matters on appeal as matters presenting issues they are restrained from publishing or commenting on. This is a misunderstanding that curtails freedom of the press.

Contempt of court from prejudicial publication involves the concept known as trial by media, also referred to as prejudgment of litigated issues. It is true that the British House of Lords in Attorney-General v Times Newspapers Ltd once established a general rule that "it was offensive to the law for the Press to prejudge issues in pending cases and hence 'usurp the function of the court". However, the application of this rule has been significantly modified in jurisdictions across the world.

In the U.K. the Phillimore Report, which paved the way for the transformation of the U.K contempt laws, criticized the position taken in the Times Newspapers Ltd case. The issue also reached the European Court of Human Rights and that court ruled that the House of Lords decision in AG v. Times Newspapers Ltd was an infringement of the right to freedom of expression under article 10 of the European Convention.

The 2001 decision of the Federal Court of Australia in North Australian Aboriginal Legal Aid Service Inc. v. Bradley et al also expresses the extent to which the current state of the law defers to freedom of the press. In Bradley, Judge Wilcox states "

a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticised has become a party to litigation either as plaintiff or as defendant". This point is made even stronger when the matter is pending appeal.

The test laid down is South Africa in S v Hartmann et al is a balance of probability that there is a real or substantial risk of prejudice. This risk is unlikely where a judge is deciding even factual issues. The court stated "only a remote possibility exists of a judge, imbued with basic impartiality, legal training and power of objective thought, being consciously or subconsciously influenced by extraneous matter." Commentators and publishers should recognize the distinction between issues to be determined by a jury and those to be deterimined by judges.

I n R v Horsham Justices, ex parte Farquharson el al, a U.K. case, Lord Denning MR stated emphatically that: "at a trial judges are not influenced by what they may have read in the newspapers." This is true even where judges are triers of facts.

As Lord Coulfied points out, in R. v. Her Majesty's Advocate General For Scotland, after the factual issues have been determined and matters of law are being reviewed at the appellate level, the issue of prejudicing the outcome of the proceedings is remote. Lord Coulfied states "The possibility that a professional judge will be influenced by anything he has read about the issues in a case which he has to try is ... remote."

But even before the law was reformed Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd.[1974] stated that "any comment on pending appellate proceedings could only rarely be intrinsically an interference with the due course of law." This comment by Lord Simon recognizes two often overlooked points. First, appellate proceedings do not involve juries. Secondly, appellate proceedings are not a fact finding process.

The issue of trial by media at the appellate level was more succintly stated in the 1990 decision of re Lonrho Plc. Et Al where it was stated "So far as the appellate tribunal is concerned, it is difficult to visualise circumstances in which any court in the United Kingdom exercising appellate jurisdiction would be in the least likely to be influenced by public discussion of the merits of a decision appealed against or of the parties' conduct in the proceedings."

The foregoing clearly shows that publishers and commentators should be least concerned about prejudicing appellate proceedings and stop enjoining themselves simply becuase a matter is pending appeal. This is so because at the appellate level factual issues are already resolved and the process focuses on error of law. This is also the case for constitutional motions addressing matters of law.

Therefore, contempt on grounds of prejudicing an appellate proceeding is hardly a possibility. It should however, be remembered that there are three types of contempt of court. One is, scandalising the court itself. A another form of contempt often overlooked is the abuse of a party to a pending case. The third is prejudicing the outcome of a case. This article limits it attention to the last of the three types of contempt.

VIVIAN M. WILLIAMS & ASSOCIATES

212-618-1791

In ACTION:

C opyright Case Against Major U.S. Cable Network Being Reviewed

Vivian M. Williams, is reviewing a copyright infringement against a cable network that might have taken fair use too far. The graduate of the Benajamin Cardozo School of Law top ranked Intellectual Property Law Program, is also preparing for oral arguments in the U.S. Court of Appeals 2nd Circuit, in another matter during the fall session. The case is about the unauthorized copying of an author's work to produce a series of television programs Vivian M. Williams, Esq.

. While the work at issue is non-fiction, the TV programs copied so much of the author's work that a serious breach of the idea/expression dichotomy is a lively issue.

While copyright protection is not available for ideas and facts the arrangement of facts and ideas constitute an author's coyrightable expression. the courts have also held that an author's viewpoint is part of his copyrightable expression. What is particularly stricking in this case is the fact that most of the materials copied are expressions of the author's viewpoint.

Before the book was published, the idea of producing a TV series from its various chapters was raised with the cable network that is the subject of the law suit. The network did not respond to the author but after the book was published it released a series of programs that the author contends are unauthorized derivative works that involve wholsesale copying of chapters from the book, supplemented with video footage.

Vivian M. Williams has litigated cases in New York State and Federal courts, securing judgments against large corporate entities. He is currently preparing to argue a case before the U.S. Court of Appeals, 2nd Circuit in the fall session.

Vivian M. Williams and Associates

14 Wall Street

20th Floor

New York, NY 10005

212-618-1791

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Consult	Vivian M. Williams & Associates provides services such as Trademark Registration, Copyright Registration, Copyright and Trademark Litigation, Fair Use Defense, First Amendment, Broadcast Regulation, Right of Publicity, Defamation and Contempt Litigation, General Intellectual Property Rights Consultation.
212-618-1791 email: info@vmwassociates.com

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