Page:Twin Books v. Walt Disney.pdf/3

 QUACKENBUSH, Senior District Judge:

Plaintiff Twin Books Corporation (Twin Books) appeals the district court’s judgment granting the Defendants’ Motion for Summary Judgment in this action for copyright infringement brought pursuant to the Copyright Act of 1909, ch. 320, 35 Stat. 1075, current version at 17 U.S.C. §§ 101 et seq. The district court had original jurisdiction pursuant to 28 U.S.C. § 1338(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.

This appeal involves the children’s classic tale, Bambi, A Life in the Woods. It is a very common misconception that Bambi was the brainchild of the world’s foremost entertainer of children, Walt Disney. To the contrary, the young fawn named Bambi was brought to life in Austria by an Austrian citizen named Felix Salten, and was born in the wooded wilderness of Germany in 1923. Bambi learned very early in life that the meadow, where his mother took him to graze and play, was full of potential dangers everywhere he turned. Unfortunately, Bambi’s creator, Mr. Salten, could not know of the equally dangerous conditions lurking in the world of copyright protection under the United States Copyright Act of 1909, particularly as it pertained to Salten, a foreign author publishing his work in a foreign country.

The first appearance of the German speaking Bambi in Germany in 1923 by publication contained no notice to the world that Mr. Salten intended to protect the young German fawn. Therefore, Bambi was fair game for any deer hunter in the world outside of Germany. However, in 1926, Salten must have realized this potential danger, and therefore, he republished the German language Bambi, A Life in the Woods in Germany, this time with a notice of United States copyright, in an attempt to afford Bambi some protection from the dangerous American hunters. The copyright on the Bambi story was timely registered in the United States in early 1927.

On December 3, 1936, Salten and his publisher assigned certain rights in the Bambi book to Sidney Franklin, who then in 1937, assigned his rights in Bambi to Walt Disney (Disney). Disney made an instant star out of Bambi, first releasing the animated Bambi movie in 1942. The movie has been rereleased seven times, and Disney has very successfully marketed numerous Bambi products, including video cassettes, toys, and books based on the Bambi story.

The author Salten died in 1945. His daughter and heir, Anna Salten Wyler, renewed the U.S. copyright on Bambi in 1954. In 1958, Anna Wyler negotiated and executed three agreements with Disney concerning her rights in Bambi. Anna Wyler died in 1977, leaving her husband Veit Wyler as her sole heir and successor to her right in the literary properties of her father, the author Salten. In 1993, Veit Wyler and his two children assigned all their rights in Bambi to the Plaintiff Twin Books.

Disagreements arose as to the rights of the parties under the 1958 Wyler–Disney agreements, and Plaintiff then initiated this action. Defendant Walt Disney moved for summary judgment in the district court on three theories: (1) the Bambi book is in the public domain; (2) the 1958 Anna Wyler agreements granted Disney renewal copyrights in the Bambi motion picture throughout the second copyright term; and (3) the Veit Wyler assignment to Twin Books made Twin Books a non-exclusive licensee only. Twin Books also moved for summary judgment. In response to Twin Books’ motion, Disney conceded there were triable issues of fact concerning the interpretation and effect of the Anna Wyler agreements with Disney. Because the legal effect of the subsequent Veit Wyler assignment to Twin Books also depends on the effect of the Anna Wyler agreements with Disney, the district court found that Disney’s Motion for Summary Judgment rested solely on its argument that Bambi was and is in the public domain and that therefore, the copyrights were invalid.

Disney’s public domain argument in the district court was threefold. Disney first claimed that Bambi fell into the public domain in 1923, when it was published without any notice of copyright in the German language in Germany. Disney next claimed that Bambi fell into the public domain in