Intellectual Property Law

Chapter 16 Putting It Into Words Solution

In 1992, your employer, Book Publishing Inc., created a collection of photographs by
five foreign photographers, called Portraits of Europe. All of the photos were in the
public domain in the United States at that time (but not in their countries of origin)
because the photographers failed to include copyright notices on their photographs (at a
time when the United States required such renewals). Draft a short paragraph explaining
to the general counsel of Book Publishing Inc. the rights of the photographers and the
rights of Book Publishing Inc. to the work.

Under the Uruguay Round Agreements Act (URAA), certain copyrighted
works that had fallen into the public domain in the United States (for failure
by the author to include copyright notices on the work) were automatically
restored. Copyrights in the photographs were restored automatically as of
January 1, 1996, and remain protectable for the term they would have
enjoyed had they not entered the public domain. Thus, the photographers
have each “recaptured” the copyrights in their photographs in the United
States, effective January 1, 1996. Book Publishing Inc., however, is a
“reliance party,” which relied on the public domain status of the photos in
using them prior to their automatic copyright restoration under the URAA.
If any of the photographers wish to enforce their rights to their photographs,
they must provide a Notice of Intent to Enforce to Book Publishers Inc. or
must file that Notice with the U.S. Copyright Office. Ordinarily, a reliance
party has 12 months to phase out its use of the copyrighted works or to sell
its stock. In this case, however, the collection is a derivative work of the
original separate photographs. The selection of which photos to include and
the arrangement thereof show creativity and thus qualify this collection as a
derivative work. The author of a derivative work such as Book Publishers
Inc. may continue to exploit the derivative work for the duration of the
restored copyright if it pays the owners of the restored copyright reasonable
compensation for such. Thus, Book Publishers Inc. may continue to sell
Portraits of Europe but must be prepared to pay compensation for use of the
photographs.