Page:Twin Books v. Walt Disney.pdf/6

, if copies sold in Hungary bore a notice containing the wrong publication date. Heim, 154 F.2d at 487.

The court noted that the Supreme Court in United Dictionary, 208 U.S. 260, 28 S.Ct. 290, held that if a work were copyrighted in the United States, the omission of notice of the American copyright from an edition subsequently published in England did not invalidate the copyright. The court found no reason to distinguish between a foreign publication occurring either before or after obtaining a United States copyright, and, therefore, found Basevi v. Edward O’Toole, supra, 26 F.Supp. 41 wrongly decided on that point.

More recently, this court reconfirmed that copyright laws have no extraterritorial operation in Subafilms Ltd. v. MGM–Pathe Communications Co., 24 F.3d 1088, 1095 (9th Cir.)(en banc, cert. denied, –513 [sic] U.S. —, 115 S.Ct. 512, 130 L.Ed.2d 419 (1994)). “The ‘undisputed axiom’ (citing Nimmer) … that the United States’ copyright laws have no application to extraterritorial infringement predates the 1909 Act.” Id. (citing United Dictionary). Congressional enactment must be presumed to be primarily concerned with domestic conditions. “It is for Congress, and not the courts, to take the initiative in this [copyright] field.” Id. at 1098.

It is clear that from at least 1908, when United Dictionary was decided, to the present time, Congress has never indicated any intention to vary from the exclusively territorial application of United States copyright law. The Subafilms court went back prior to the 1909 Act, tracing the territorial concept, and bringing the axiom forward through the years, finding that United States copyright law applies to what takes place in the United States, not to what takes place in Italy, Germany, or any other foreign place.

Plaintiff Twin Books contends that because the 1909 Act had no extra-territorial effect, the 1923 publication of Bambi did not result in Bambi being placed in the public domain, and did not preclude subsequent United States copyright protection. Twin Books relies heavily on Heim. We agree, and adopt the reasoning of Heim, finding it to be well-reasoned and the latest appellate pronouncement on the precise issue. It is recognized as such by the leading treatise on copyright, Nimmer on Copyright (1994); it has been followed by the United States Copyright Office; and it is consistent with the long-standing axiom that U.S. copyright laws have no extraterritorial effect.

In Heim, as noted above, the court, applying the 1909 Act, opined that publication without a copyright notice in a foreign country did not put the work in the public domain in the United States, “provided that, under the laws of the country where it takes place, it does not result in putting the work in the public domain.” Heim, 154 F.2d at 487.

As there is no contention that Bambi fell into the public domain in Germany in 1923, under Heim, the 1923 publication of Bambi in Germany did not put Bambi in the public domain in the United States. Therefore, we find the 1923 publication did not preclude the author from subsequently obtaining copyright protection in the United States by complying with the 1909 Copyright Act.

Disney contends, and the district court agreed, that the initial copyright of Bambi was secured and commenced in 1923 when it was first published in Germany without a copyright notice of any kind. We disagree.

Under the doctrine of territoriality, and under the clear language of the 1909 Copyright Act, United States copyright protection was not secured for Bambi until 1926, when in compliance with the Act’s requirements, it was published with a United States copyright notice. During 1923, 1924, and 1925, anyone could have sold the Bambi book in the United States or made some derivative movie of the Bambi book, and the author Salten would have had no recourse under the United States copyright law. Nevertheless, the district court held that Bambi’s United States copyright term was running during the 1923–1926 years, when it was totally unprotected under United States copyright law. Such a result is neither warranted under the statute’s language nor would it be