Judge Posner of the Seventh Circuit penned a fascinating copyright decision yesterday. In Gaiman v. McFarlane (PDF, 78kb), he made two obvious holdings, and one not-so-obvious one. On the whole, this is a victory for authors' rights, even if it does contain a small potential landmine.
The first, and perhaps most important in the light of Morris and its progeny, holding concerns when the statute of limitations on copyright infringements begins to run. Although not entirely ruling out the concept of "constructive notice," the opinion explicitly holds that none of the following, individually or collectively, constitutes "constructive notice" to the author that there has been an infringement, and therefore starts the running of the three-year statute of limitations:
- The printing of a compilation copyright notice to the compiler in the original edition, with or without notice of copyright of any contributor to the work.
The function of copyright notice is to warn off copiers, not to start the statute of limitations running. There may be situations in which the notice just happens to put a copyright owner on notice that someone is acting in derogation of his rights. Remember that a claim inconsistent with the copyright holder's interest sets the statute running, and in particular circumstances a notice indicating that the defendant was the sole copyright holder might amount to such a claim. But not when the work is a compilation, as Spawn No. 9 plainly is. For it contains, besides [author] Gaiman's contributions and goodness knows who else's, a letter-to-the-editors column containing a number of signed letters from fans plus art work contributed by fans. As [artist/publisher] McFarlane concedes, the copyrights on those letters and on the art work are owned by the fans and his copyrighting the issue is not a claim to own their copyrights.
Slip op. at 11-12 (citations omitted).
- The printing of a compilation copyright notice to the compiler in a later revision or reprint incorporating substantially all of the original edition, even in combination with other works ("unless there is a duty of authors to read the copyright pages of works containing their copyrighted materials—and there is not—then… the notice can affect the accrual of the cause of action only if the victim [actually] reads it").
- The copyright registration filed by a compiler in the compilation. Presumably, this would hold true even if the compiler improperly claimed not a compilation, but a total, copyright.
In addition to the copyright notices, McFarlane registered copyright on the issues and the books. But to suppose that by doing so he provided notice to Gaiman of his exclusive claim to the characters is again untenable. Authors don't consult the records of the Copyright Office to see whether someone has asserted copyright in their works; and anyway McFarlane's registrations no more revealed an intent to claim copyright in Gaiman's contributions, as distinct from McFarlane's own contributions as compiler and illustrator, than the copyright notices did. The significance of registration is that it is a prerequisite to a suit to enforce a copyright. More precisely, an application to register must be filed, and either granted or refused, before suit can be brought…. All that is important in this case is that it is no more the purpose of registration to start statutes of limitations running than it is the purpose of the copyright notice itself to do so.
Slip op. at 14 (citations omitted).
- Negotiations over compensation occurring after publication of the original edition, at least until such negotiations show that the compiler is claiming the original (not just compilation) copyright in a way that would place a prudent author on notice that his or her copyright was being claimed by the compiler. In Gaiman, this involved an explicit statement ("The statement 'all rights to Medieval Spawn and Cogliostro shall continue to be owned by Todd McFarlane Productions' was an unambiguous denial of Gaiman's copyright interest and therefore is the last date on which his claim could have accrued and the three-year copyright statute of limitations thus have begun to run" (citation omitted)). There are probably other ways of doing this; they just didn't appear in this matter.
In this matter, McFarlane's statement that placed Gaiman on notice of the copyright claim was in early 1999. Gaiman filed suit one month short of three years later. Judge Posner ruled that Gaiman therefore filed suit inside the statute of limitations. (This result was obvious after listening to the oral argument in the matter, at which time Judge Posner granted McFarlane's lawyer extra time and then spent it eviscerating McFarlane's lawyer.)
The second holding concerns what is necessary for copyrightability of characters.
[W]here two or more people set out to create a character jointly in such mixed media as comic books and motion pictures and succeed in creating a copyrightable character, it would be paradoxical if though the result of their joint labors had more than enough originality and creativity to be copyrightable, no one could claim copyright. That would be peeling the onion until it disappeared. The decisions that say, rightly in the generality of cases, that each contributor to a joint work must make a contribution that if it stood alone would be copyrightable weren't thinking of the case in which it couldn't stand alone because of the nature of the particular creative process that had produced it.
Slip op. at 21-22.
This does not extend to mere contribution of an idea; it requires at least some originality, albeit not enough originality to justify a copyright in the abstract, standing alone.
The minor landmine is for another time.