Abandonment

[John Cowan]

Rod Dixon wrote:

> If a copyright owner were
> to bring a copyright infringement suit, the filing of the lawsuit would
> tend to diminish the plausibility or persuasiveness of the defense that
> the plaintiff intended to abandon her copyright (abandoment required
> intent).

Consider a work created by Roe.  You make and distribute copies before
the copyright term has expired.

Hypothetical 1: You are sued by Doe, who claims to be the successor to Roe's
original copyright.  You produce a Copyright-Office registered affidavit
by Roe showing abandonment of copyright that predates the supposed transfer.
Doe seems to me to pretty clearly have no case: the assignment of copyright
is an assignment of a nonexistent right.  

Hypothetical 2:  You are sued by Doe etc.  You show that the copy that you
reproduced was manufactured before the supposed transfer of copyright, and
contains the statement "I dedicate this work to the public domain -- Richard
Roe."  Now the court has to decide which of Roe's two explicit intentions
is controlling.  I doubt whether Doe has a case, though he might be able
to assert copyright w/r/t copies that were manufactured under his license
after the transfer of copyright.

Hypothetical 3:  You are sued by Roe himself this time.  You demonstrate that
Roe's work has been copied openly and with Roe's full knowledge by
you and others for many years, to Roe's commercial detriment.  Though
copyright is a creation of statute, an adverse-possession theory looks
plausible, and may save you.

What do you think?

-- 

Schlingt dreifach einen Kreis um dies! || John Cowan <jcowan at reutershealth.com>
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