sive distribution rights to the Film in the United States.
In 1974, PDS went bankrupt. Italfilm acquired all “rights of economic utilization” to the Film pursuant to a deed of assignment executed by PDS’s liquidator on September 26, 1974. See Plaintiffs’ Exhibits, at H.[1] However, by the terms of that deed, excepted from the transfer were “rights previously acquired by third parties, provided they are duly approved by the competent Italian authorities with respect to the monetary regulations in force.” See id., at H, ¶ 2.[2] Shortly thereafter, Italfilm assigned all rights to the Film to GFC. In October of 1974, plaintiffs GFC and IFEX entered into a series of agreements, the effect of which was to grant IFEX an exclusive license to create and distribute a subtitled version of the Film for a period of twelve years, beginning in 1977. See Exhibit E to Defendants’ Notice of Motion. In 1977, IFEX, in turn, granted an exclusive ten-year license to the Film to MacMillian Films, Inc. (“MacMillian”). In 1982, soon after MacMillian was acquired by Films Incorporated, MacMillian was renamed Brandon.
DISCUSSION
Defendants claim that plaintiffs have no valid rights to the Film. They argue that pursuant to the bankruptcy decree, Italfilm took the rights to the Film subject to the preexisting rights of Feiner. Plaintiffs dispute this, arguing that since defendants failed to obtain the Italian Government authorization required by Currency Law No. 476, see note 5, supra, the grant to Feiner is void and of no effect. See Second Amended Complaint, at ¶ 19.[3]
However, since it appears clear that the Film is now in the public domain, and that neither party may properly claim any proprietary rights in the Film, it is not necessary to resolve these issues. It is undisputed that the date of publication of the Film was December 6, 1948. See Plaintiffs 3(g) Statement, at ¶ 16.[4] Under the 1909 Act, statutory copyright protection attached and endured for twenty-eight years from the date of first publication with notice. See 17 U.S.C. § 24 (1976) (1909 Act) (superseded).[5] Thereafter, an application for renewal of copyright would have had to have
- ↑ Prior to bankruptcy, PDS changed its name to Produzioni del Secolo. See Defendants’ Memo at 4 n. 4. Italfilm was the highest bidder in an auction held by an Italian Bankruptcy Court and was awarded the rights to the Film pursuant to a decree from the Bankruptcy Court. See Plaintiffs’ Exhibits, at H.
- ↑ The parties submit that the bankruptcy decree referred to Italian Currency Decree-Law No. 476 of June 6, 1956, Gazetta Ufficiale della Republica Italiana 6 (February 1, 1965), which states that contracts between residents of Italy and foreign parties may not be made without proper authorization by the Italian Ministry of Foreign Trade. See Plaintiffs’ Exhibits, at J, art. 2.
- ↑ These issues are complicated by the fact that the 1967 agreement between PDS and Feiner expressly states that the agreement is made in New York and “shall be governed in accordance with the laws of the State of New York.” See Plaintiffs’ Exhibits, at A, ¶ 12. Unless unreasonable, the parties’ choice of law, as expressed in their contract, governs that contract. See, e.g., CBS, Inc. (CBS Records Division) v. Tucker, 412 F.Supp. 1222, 1226 n. 5 (S.D.N.Y.1976); Fleischmann Distilling Corp. v. Distillers Co., Ltd., 395 F.Supp. 221, 229 (S.D.N.Y.1975).
- ↑ Under American copyright laws, the fact that the Film was first published in Italy does not diminish its copyrightability here. “For domestic copyright purposes generally there is no significance in where a work is published. If [a] work is published anywhere in the world, it is ‘published,’ with all of the consequences that flow therefrom.” 3 M. Nimmer, Nimmer on Copyright § 17.04[D], at 17-17 (1985) (footnote omitted). One such consequence of publication with notice is the termination of protection under common law copyright. See, e.g., Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S.Ct. 722, 52 L.Ed. 1086 (1908); G. Ricordi & Co. v. Haendler, 194 F.2d 914 (2d Cir.1952).
- ↑ Section 24 of the 1909 Act provided:
Sec. 24. Duration; Renewal and Extension The copyright secured by this title shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author’s true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee
