Twin Books Corp. v. Walt Disney Co., 95-15250
| Decision Date | 20 May 1996 |
| Docket Number | No. 95-15250,95-15250 |
| Citation | 83 F.3d 1162 |
| Parties | 1995 Copr.L.Dec. P 27,518, 38 U.S.P.Q.2d 1847, 96 Cal. Daily Op. Serv. 3518, 96 Daily Journal D.A.R. 5726 TWIN BOOKS CORPORATION, Plaintiff-Appellant, v. The WALT DISNEY COMPANY; Buena Vista Home Video, Inc.; and Buena Vista Pictures Distribution, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joel Linzner, Ezra Hendon, and Lynn M. Humphreys, Crosby, Heafey, Roach & May, Oakland, California, for plaintiff-appellant.
Timothy E. Carr, Carr & Mussman, San Francisco, California, for defendants-appellees.
Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding.
Before: BEEZER and HAWKINS, Circuit Judges, and 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 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.
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
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, 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.
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