Morris v. Business Concepts, Inc.
Decision Date | 18 March 2002 |
Docket Number | Docket No. 00-7509. |
Citation | 283 F.3d 502 |
Parties | Lois B. MORRIS, Plaintiff-Appellant, v. BUSINESS CONCEPTS, INC., James J. Maher and Petra H. Maher, Defendants-Appellees. |
Court | U.S. Court of Appeals — Second Circuit |
David B. Wolf, New York, N.Y. (Cowan, DeBaets, Abrahams & Sheppard, LLP, of counsel), for Plaintiff-Appellant.
Jeffrey A. Oppenheim, New York, N.Y. (Law Office of Jeffrey A. Oppenheim, of counsel), for Defendants-Appellees.
Before OAKES, KEARSE and CABRANES, Circuit Judges.
In response to the petition for rehearing, we write to clarify part of the reasoning in our opinion. Because it might significantly affect some future case, we wish to modify our opinion by removing Part I.
In saying that "an owner of a particular right — as opposed to the copyright itself — would not be a copyright owner," Morris v. Business Concepts, Inc., 259 F.3d 65, 69 (2d Cir.2001), we relied upon the great copyright treatise, 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 10.02[C][2], at 10-28 (2000):
[T]here is never more than a single copyright in a work, notwithstanding the author's exclusive license of certain rights.
While Nimmer is supported by at least one other treatise, Boorstyn on Copyright,1 others are not so clear or perhaps are even contrary.2
We recognize that the language of Section 101 itself, and of the Supreme Court in the recent case New York Times Co., Inc. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001), casts serious doubt upon the question whether there may be only "a single copyright in a work." The statute, as pointed out in footnote 2, supra, states that a "`[c]opyright owner,' with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right."3 17 U.S.C. § 101 (2001). And the Supreme Court, as part of its approach to the collective work problem, said that Tasini, 121 S.Ct. at 2388-89 (footnote omitted).
But even if we could resolve the thorny problem of whether a single copyright exists, we would still have to answer the question whether (assuming that both the author and the exclusive licensee are copyright owners) a registration by one can, for purposes of § 411(a), cover the rights of the other. The statute itself does not answer this question since it requires only that registration be made "in accordance with this title," which includes other sections of the title such as §§ 408 and 409, as well as the Copyright Office's registration practices and regulations.
Morris contends that the holding in Streetwise Maps, Inc. v. Vandam, Inc., 159 F.3d 739, 747 (2d Cir.1998), that the registration of a derivative work meets the jurisdictional requirements of § 411(a) in a suit for infringement of the original work where the claimant owns the copyright in both, requires us to find that if Condé Nast was a "copyright owner" of Morris's articles at the time it registered the issues of Allure in which they appeared, then those articles are registered for the purposes of § 411(a). See Woods v. Universal City Studios, Inc., 920 F.Supp. 62, 64 (S.D.N.Y.1996), cited in Streetwise Maps, 159 F.3d at 747. We disagree. In Streetwise Maps, the plaintiff apparently owned all of the rights to the original work at the time it registered the copyright. See 159 F.3d at 746-47. In this case, it is undisputed that Condé Nast owned only some of the rights to Morris's articles at the time it registered the relevant issues of Allure.
The distinction between those constituent parts of a collective work in which the author of the collective work owns all rights and those constituent parts in which the author does not own all rights is critical in determining whether a copyright registration in a collective work also registers a copyright claim in a particular constituent work. As explained in the Circular for Copyright Registration on Form SE, which concerns the form used by Condé Nast to register the issues of Allure as serial publications:
The claimant registering a serial may claim copyright not only in the collective-work authorship for which the claimant is responsible but also in any independently authored contributions in which all rights have been transferred to the claimant by the contributors.
If the serial issue includes any independently authored contributions in which all the rights have not been transferred by the contributor to the claimant for the serial issue as a whole, those contributions are not included in the claim being registered, because the claimant in these contributions is different from the claimant in the entire serial issue.
Copyright Office Circular No. 62 (Serials) (emphasis in original). This language highlights that if all rights in a constituent work have not been transferred to the claimant, a collective work registration will not apply to the constituent work. If, on the other hand, all rights have been transferred to the claimant, then the constituent work is included in the registration of the collective work.
We recognize that "the Copyright Office has no authority to give opinions or define legal terms, and [that] its interpretation on an issue never before decided should not be given controlling weight," Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 946-47 (2d Cir.1975) (footnotes omitted). In this case, however, we find the Office's interpretation persuasive. Cf. United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2175, 150 L.Ed.2d 292 (2001) ( ). Accordingly, we hold that unless the copyright owner of a collective work also owns all the rights in a constituent part, a collective work registration will not extend to a constituent part.
Although Tasini contains much language favorable to the authors of an article included by a publisher in a collective work, see 121 S.Ct. at 2388-89, it is not to the contrary. In Tasini, Id. at 2385. In our case, Morris did not register her copyright, though she could, of course, have done so. The Copyright Office regulations permit:
as a general rule, only one registration per work. Under these regulations an exclusive transferee of a single § 106 right, who qualifies as a "copyright owner" under the § 101 definition, will not be permitted to register a claim in that single right. Based on both practical and legal considerations, these regulations are designed "to make[] clear that the copyright `claimant' for purposes of copyright registration is the author of the work for which registration is sought or a person or organization that has obtained ownership of all rights under the copyright initially belonging to the author." Interim Regulation: Part 202-Registration of Claims to Copyright, 43 Fed. Reg. 965 (1978).
We therefore conclude...
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