Hillman J considered that the question of whether Moberg's photographs were 'United States works' involved two issues: (i) whether the posting of plaintiff‘s photographs on the Internet is considered "publishing," and, (ii) if so, whether "publishing" on the Internet causes the photographs to be published only in the country where the Internet site is located, or in every country around the world simultaneously.[1]
In reaching its decision, the court focused on the broader purpose and policy rationale behind the Berne Convention. Regarding the issue (i), the court found that it need not "delve into yet another unsettled issue, because even assuming that the German website 'published' the plaintiff's photographs, […] as a matter of U.S. statutory law the photographs were not published simultaneously in the United States". This reasoning was based on part of section 408(a) of the Copyright Act, which states that "registration is not a condition of copyright protection",[2] and the proposition in Kuklachev v. Gelfman[3] and Muchnick v. Thomson Corp.,[4] that "[u]nder the clear language of the statute, which refers only to 'any United States work,' foreign works originating in countries party to the Berne Convention need not comply with section 411."[5] The court concluded that the work was not a "United States work" for the purposes of section 411.
The court held that the acceptance of the defendant's contention that "publishing" on the internet would cause the work in question to become a United States work "would overextend and pervert the United States copyright laws".[6] To subject the copyright owner to the formalities of the copyright laws of every country would be "contrary to the purpose of the Berne Convention … [which] is to provide protection to authors whose works will be published in many countries".[7] The court continued:
[T]he United States copyright laws, in accord with the Berne Convention, provide for protection of foreign works in the United States without requiring the artists to undertake any formalities in the United States. …
To require plaintiff to register his photographs in the United States prior to initiating suit against a United States company and the registrants of U.S.-based websites for their violation of United States law, which protects plaintiff's copyrights, would flout United States law and the international union the U.S. has joined voluntarily. Therefore, the Court finds that plaintiff's photographs are not "United States works," and, accordingly, his copyright infringement claims may stand without registration of the photographs.[8]
- ↑ 666 F. Supp. 2d 415, 421 (D. Del. Oct. 6, 2009).
- ↑ Note that § 408(a) only relates to "protection" of the work, and does not refer to a precondition to instituting a civil infringement action.
- ↑ 600 F. Supp. 2d 437, 473 (E.D.N.Y. 2009).
- ↑ 509 F.3d 116, 133 (2d Cir. 2007).
- ↑ 666 F. Supp. 2d 415, 423 (D. Del. Oct. 6, 2009).
- ↑ 666 F. Supp. 2d 415, 410 (D. Del. Oct. 6, 2009).
- ↑ 666 F. Supp. 2d 415, 422-23 (D. Del. Oct. 6, 2009): "if the publishing of plaintiff's photographs on the German website simultaneously caused them to be published in the United States, and such publication transformed the work into a United States work, plaintiff would be subjected to the very formalities that the Berne Convention eschews. To hold otherwise would require an artist to survey all the copyright laws throughout the world, determine what requirements exist as preconditions to suits in those countries should one of its citizens infringe on the artist's rights, and comply with those formalities, all prior to posting any copyrighted image on the Internet. The Berne Convention was formed, in part, to prevent exactly this result."
- ↑ 666 F. Supp. 2d 415, 423-24 (D. Del. Oct. 6, 2009).
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