Page:Penguin Books v. New Christian Church.pdf/12

 under the Copyright Act: plaintiffs must demonstrate (1) ownership of a valid copyright; and (2) unauthorized copying by the defendant. E.g., Design Options, Inc. v. BellePointe, Inc., 940 F.Supp. 86, 89 (S.D.N.Y.1996). A certificate of registration from the United States Registrar of Copyrights constitutes prima facie evidence of the validity of the subject copyright, see 17 U.S.C. § 410(c), and once such a certificate has been presented, the burden shifts to defendants to rebut the copyright’s presumptive validity. Design Options, Inc., 940 F.Supp. at 89.

To establish their defense to infringement, defendants must demonstrate that the work was “published,” as that term is used and defined in the copyright context, without copyright notice. Kepner–Tregoe, Inc. v. Vroom, 186 F.3d 283, 287–88 (2d Cir.1999). The showing of a work to a select group of people for a limited purpose (such as to seek commentary or criticism) does not constitute “publication” within the meaning of the copyright law, and is legally insufficient to place the work into the public domain. E.g., ''Acad. of Motion Picture Arts and Sciences v. Creative House Promotions, Inc.'', 944 F.2d 1446 (9th Cir.1991). In particular, the creator of a work has the right to show it to a limited class of people without jeopardizing the common law copyright, and, under such circumstances, the publication will be deemed “limited.” Id. at 1451; Procter & Gamble Co. v. Colgate–Palmolive Co., No. 96 Civ. 9123, 1998 WL 788802, at *38 (S.D.N.Y.1998).

Such a limited publication will be found where the publication was (1) to a definitely select group, (2) for a limited purpose, and (3) without the right of diffusion, reproduction distribution or sale. White v. Kimmell, 193 F.2d 744, 746–47 (9th Cir.1952); Continental Casualty Co. v. Beardsley, 253 F.2d 702, 706–07 (2d Cir.1958), ''cert. denied'', 358 U.S. 816, 79 S.Ct. 25, 3 L.Ed.2d 58 (1958); Procter & Gamble Co., 1998 WL 788802 at *38.

A work may enter the public domain through a general publication where the copyright holder acts in a fashion that exceeds the scope of this “limited publication.” Thus, “[a] general publication occurs when a work is made available to members of the public regardless of who they are or what they will do with it.” ''Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1442; see also Continental Casualty Co.'', 253 F.2d at 706–07.


 * B.&emsp;The Plaintiffs Have the Burden of Proof

The plaintiffs have established they hold a valid registered copyright in the Course via their certificate of registration granted in December 1975, Penguin Books, 2000 WL 1028634, at *15, which creates a presumption of first date of publication. The certificate of registration contains a date of October 6, 1975 as the date of first publication.

The Church and Endeavor have met their initial burden of proof to show that the Course entered the public domain or was “published” prior to October 6, 1975 without notice of copyright. Kepner–Tregoe, 186 F.3d at 287–88. ''Acad. of Motion Picture Arts and Sciences, 944 F.2d at 1451; H.W. Wilson Co. v. Nat’l Library Serv. Co.'', 402 F.Supp. 456, 458. (S.D.N.Y.1975).

“A general publication ‘occurs when by the consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away or otherwise made available to the general public, or when an authorized offer is made to dispose of the work in any such manner even if a sale or other such disposition does not in fact occur.’”