Page:Twin Books v. Walt Disney.pdf/4

 1926, when the German language version was republished in Germany with a United States copyright notice allegedly misstating that the original publication occurred in 1926, rather than in 1923, a claim Disney does not pursue here, and we do not reach. Finally, Disney claimed that Bambi fell into the public domain in 1951, when Anna Wyler allegedly failed to timely renew the copyright.

The district court did not reach the arguments that Bambi fell into the public domain in 1923 or in 1926. Rather, the court found that United States copyright protection was secured and commenced in 1923, upon first publication of the German language book in Germany without any notice of copyright; that the 1954 renewal by Anna Wyler was untimely under the 1909 Copyright Act; and that Bambi fell into the public domain in 1951 because a renewal had not been timely filed. The court then held that President Eisenhower’s Presidential Proclamation of 1960 did not save the 1954 renewal of copyright from being untimely, and finally, that licensee estoppel does not apply in this case. The district court entered summary judgment in favor of the Defendants.

In this court, Defendants renew their arguments that Bambi fell into the public domain in 1923, and in the alternative, that Bambi fell into the public domain in 1951. We find that Bambi did not fall into the public domain in 1923. We reverse the district court’s findings that the initial copyright was secured and commenced in 1923, expired in 1951 when no renewal was filed, and therefore, that Bambi fell into the public domain in 1951. Therefore, we need not reach the issues concerning the Presidential Proclamation and/or licensee estoppel.

It is undisputed that the 1909 Copyright Act, 17 U.S.C. §§ 1, [sic] et seq. (superseded 1976) applies in this case. Under the 1909 Act, an unpublished work was protected by state common law copyright from the moment of its creation until it was either published or until it received protection under the federal copyright scheme. Roy Export Co. Establishment of Vaduz, Liechtenstein v. Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1101 (2d Cir.), ''cert. denied'', 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982). When a work was published for the first time, it lost state common law protection. The owner could, however, obtain federal protection for the published work by complying with the requirements of the 1909 Copyright Act. If the owner failed to satisfy the Act’s requirements, the published work was interjected irrevocably into the public domain precluding any subsequent protection of the work under the 1909 Copyright Act. Id.

The 1909 Act provided that an author was entitled to 28 years of protection from the date he or she secured a copyright on a work, and that the copyright could, before the first 28-year period expired, be renewed for another 28-year term. Section 9 of the 1909 Act provided that the author of any work could secure a copyright for his work under the conditions and terms specified in the Act. Section 10 provided that “[a]ny person … may secure copyright for his work by publication thereof with the notice of copyright required by this title.” Section 19 set forth the specifications of a proper notice.

It is undisputed that the publication of the German language version of Bambi in Germany in 1923 did not meet with the requirements of the 1909 Copyright Act, in that it was published without the notice statutorily required if United States protection was sought. It is also undisputed, for purposes of this argument, that the 1923 publication in Germany satisfied whatever German requirements there were to prevent the work from falling into the public domain in Germany. Thus, Disney does not argue that the 1923 publication in Germany placed Bambi in the German public domain, but rather, that because it did not comply with the 1909 Act requirements, it fell into the public domain in the United States, and was, therefore, subject to anyone, including Disney, using it thereafter.

The general rule under the 1909 Act is that a work must bear a valid copyright notice upon publication in order to secure