copyright protection in the United States. Nimmer on Copyright § 7.02(C)(1). Under that rule, a publication of a work in the United States without the statutory notice of copyright fell into the public domain, precluding forever any subsequent copyright protection of the published work. See, e.g., LaCienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.), cert. denied, – U.S. —, 116 S.Ct. 331, 133 L.Ed.2d 231 (1995).
However, Bambi, A Life in The Woods was written by a foreign author, and was first published without a notice of copyright in a foreign language in a foreign country, and the general rule applicable to publications within this country does not necessarily apply. Nimmer notes that
[a] heatedly debated question and one which has never been finally settled by judicial determination, relates to the question of whether a work first published outside of the United States was required under the 1909 Act to bear a copyright notice in order to claim copyright protection within the United States.
Nimmer, at § 7.12(D)(2)(a).
Some early courts dealing with the issue indicated that a publication abroad without any copyright notice, like a publication in this country without any copyright notice, would also serve to place the published work into the public domain, thereby precluding any subsequent United States copyright protection. Universal Film Mfg. Co. v. Copperman, 212 F. 301 (S.D.N.Y.), aff’d, 218 F. 577 (2nd Cir. cert. denied, 235 U.S. 704, 35 S.Ct. 209, 59 L.Ed. 433 (1914)); American Code Co. v. Bensinger, 282 F. 829 (2nd Cir.1922); Basevi v. Edward O’Toole Co., 26 F.Supp. 41 (S.D.N.Y.1939). However, these decisions were at odds with the doctrine of territoriality put forth by the Supreme Court.
The idea that United States copyright law should not be given extraterritorial effect had its origins in the case of United Dictionary Co. v. G. & C. Merriam Co., 208 U.S. 260, 28 S.Ct. 290, 52 L.Ed. 478 (1908). There, the Supreme Court looked at the copyright act that preceded the 1909 Act, and found that Congress did not intend the copyright laws to have extraterritorial effect. “Of course, Congress could attach what conditions it saw fit to its grant, but it is unlikely that it would make requirements of personal action beyond the sphere of its control.” Id. at 264, 28 S.Ct. at 290. A few years later, in Ferris v. Frohman, 223 U.S. 424, 32 S.Ct. 263, 56 L.Ed. 492 (1912), the Court applied the same territorial theory under the 1909 Copyright Act, holding that performance of a play in England did not alter that play’s subsequent United States copyright status.
Many years later, in EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 1230, 113 L.Ed.2d 274 (1991), the Supreme Court reminded us that “[i]t is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” Id. at 248, 111 S.Ct. at 1230 (citation omitted).
In 1946, the Second Circuit decided the case of Heim v. Universal Pictures Co., 154 F.2d 480 (2d Cir.1946). In Heim, a song was first published in Hungary in 1935 without any notice of copyright, and an American copyright was subsequently secured in the United States in 1936 by publication with the statutory notice. The court rejected the argument that in order to obtain a valid American copyright, where publication abroad precedes publication in this country, the first copy published abroad must have had a statutory notice of copyright. Rather, the majority opinion stated that publication abroad with no notice or with an erroneous notice would not preclude subsequently obtaining a valid United States copyright.
Such a requirement would achieve no practical purpose. … [T]he most practicable and, as we think, the correct interpretation, is that publication abroad will be in all cases enough, provided that, under the laws of the country where it takes place, it does not result in putting the work into the public domain. Assuming, arguendo, that plaintiff’s publication in Hungary did not do so, it could not affect the [subsequent] American copyright that copies of his song were at any time sold there without any notice of the kind required by our statute, and it would therefore be of no significance, in its effect on the American copy-
