Posted by KatNip on September 20, 1998 at 01:13:48:
In Reply to: Re: Patrick Henry..Re: "common law copyright"? posted by djf on September 19, 1998 at 23:54:37:
Thanks djf! Exactly the point of my post.
“[E]quity acts in personam (“against the person”),
while the law acts only in rem (“against the
property”). Thomas Conyngton & Louis O. Bergh,
Business Law, 4th ed. (The Ronald Press Company,
1949), p. 10.
“Equity is rooted in conscience. An injunction
is, as it always has been, ‘an extraordinary
remedial process, which is granted, not as a
matter of right, but in the exercise of a sound
judicial discretion.’” Morrison v. Work, 266 U.S.
481, 490, 45 S.Ct. 149, 153, 69 L.Ed. 394.
Justice Frankfurter concurring in Hurd v. Hodge,
68 S.Ct. 847, 853, 334 U.S. 24, 36 (1948).
: : Copyright. In the strict sense of the term,
: : considering copyright as the right of the author
: : to publish his manuscript and still retain a
: : monopoly therein, the courts uniformly hold that
: : copyright is wholly statutory, and depends on the
: : right created under the acts of Congress in
: : pursuance of the authority conferred by the
: : constitution. Thompson v. Hubbard, 9 S.Ct. 710.
: : Therefore a copyright cannot be sustained as a
: : right existing at common law; but as it exists
: : in the United States, depends wholly on the
: : legislation of Congress, Banks v. Manchester,
: : 9 S.Ct. 36, which intsead of sanctioning an
: : existing right created a new one. This seems
: : to be the clear import of the law, connected
: : with the circumstances under which it was enacted.
: : Wheaton v. Peters, 8 Pet. 591.
: : : Yes, a "common-law copyright" serves to protect an author's rights in an unpublished work. However, once published, the copyright laws of the United States of America (as codified in Title 17, USC) appear to govern. Even a brief reading of Title 17 will reveal the fact that copyright protection IS NOT LOST merely because of failure to register the copyright with the proper governmental office. Notice the phrase "register the copyright." Obviously, one DOES NOT APPLY to the government FOR a copyright. The copyright exists as a matter of COMMON RIGHT. The registrations provisions of the statute provide for the FORMAL PROTECTION BY STATUTE of the pre-existing copyright rights of the author, as well as increasing the types of recovery available upon infringement.
: : : As you reade Title 17, you will notice that recovery for infringement is also NOT barred by reason of lack of registration. Only certain FORMS of recovery (such as attorney's fees) are relinquished if the registration was not accomplished and/or attempted.
: The common law rights of an author and those of his assignee will be protected by a court of equity. <> Wheaton v. Peters, 8 Pet 591; Denis v. Leclere, 1 Mort 297. (A common law right is protected in a court of Equity as only actual damages can be obtained in a common law court.)
: "Will" is mandatory on the courts
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