<b>Cameo Clips</b> Controversial Ruling On Copyright Protection for Foreign Works

Jean-Emmanuel Renoir sold molds of the sculptures to Breseder Inc., owner of a fine art company, and Breseder began advertising reproductions of the sculptures for sale. The trust sued Renoir and Breseder in federal district court in Arizona, arguing that they were infringing the trust's copyright in violation of the federal Copyright Act. Renoir countered that the sculptures had fallen into the public domain.

The district court relied on Twin Books v. Walt Disney Co., 83 F.3d 1162 (9th Cir. 1996), involving ownership of Bambi's copyright. In Twin Books, the Ninth Circuit held that, although the original book, Bambi, ein Leben im Walde (Bambi, a Life in the Woods), was published in Germany in 1923 without proper notice of U.S. copyright, it had not fallen into the public domain.

Although before passage of the Copyright Act of 1976, works published without this so-called copyright “formality” fell into the public domain, the Twin Books court held that Bambi had not fallen into the public domain because it met applicable German copyright requirements.

The holding has been criticized by courts and scholars. While the general rule is that works published before 1923 have fallen into the public domain, Twin Books created an exception for a class of works published before that date: foreign works that were not copyrighted and that had not fallen into the public domain previously. Critics have argued that Twin Books ' and now Guino ' give unequal copyright protection to U.S. and foreign works.

“This case presents an interesting ' and problematic ' situation for any court,” says David Korzenik, a partner at New York's Miller Korzenik Sommers and an adjunct professor of law at Yeshiva University Benjamin N. Cardozo School of Law. “You want to respect the doctrine of national treatment and honor the copyright laws of each nation, but you want to avoid anomalies ' such as disparate treatment of foreign copyrights ' that can occur when you honor those foreign laws,” he said. “Whichever way [the Ninth Circuit] ruled, there was going to be a counterintuitive result for one party or the other.”

The U.S. Court of Appeals for the Ninth Circuit upheld a copyright infringement verdict against the great-grandson of artist Pierre-Auguste Renoir in a fight over the right to reproduce sculptures created by the French impressionist. Soci't' Civile Succession Richard Guino v. Renoir, No. 07-15582. The appeals court noted that stare decisis required it to follow its controversial 1996 precedent regarding Walt Disney's copyright for Bambi. Although that ruling “can be, and has been, criticized, it is still binding in this circuit. We are thus bound to follow it,” the court said.

A three-judge panel held that foreign works ' here, the Renoir sculptures ' were protected by U.S. copyright because they were created before the effective date of the Copyright Act of 1976 and hadn't been copyrighted or fallen into the public domain. Between 1913 and 1917, Renoir and his assistant, Richard Guino, created 11 sculptures that they published in 1917 under Renoir's name without an American-style copyright notice.

Guino obtained a ruling from the Cour de Cassation, France's highest court, that he was a co-author of the sculptures. The court awarded Guino a half interest in the pieces, which were exhibited in Paris in 1974 as “Renoir-Guino” works. Ownership changed again in 1982, when the Guino family and some members of the Renoir family ' but not his great-grandson, Jean-Emmanuel Renoir ' executed an agreement giving the Guino family the rights to reproductions of the sculptures. Guino's family created a trust, Soci't' Civile Succession Richard Guino, to hold the rights.

Jean-Emmanuel Renoir sold molds of the sculptures to Breseder Inc., owner of a fine art company, and Breseder began advertising reproductions of the sculptures for sale. The trust sued Renoir and Breseder in federal district court in Arizona, arguing that they were infringing the trust's copyright in violation of the federal Copyright Act. Renoir countered that the sculptures had fallen into the public domain.

The district court relied on Twin Books v. Walt Disney Co. , 83 F.3d 1162 (9th Cir. 1996), involving ownership of Bambi's copyright. In Twin Books, the Ninth Circuit held that, although the original book, Bambi, ein Leben im Walde (Bambi, a Life in the Woods), was published in Germany in 1923 without proper notice of U.S. copyright, it had not fallen into the public domain.

Although before passage of the Copyright Act of 1976, works published without this so-called copyright “formality” fell into the public domain, the Twin Books court held that Bambi had not fallen into the public domain because it met applicable German copyright requirements.

The holding has been criticized by courts and scholars. While the general rule is that works published before 1923 have fallen into the public domain, Twin Books created an exception for a class of works published before that date: foreign works that were not copyrighted and that had not fallen into the public domain previously. Critics have argued that Twin Books ' and now Guino ' give unequal copyright protection to U.S. and foreign works.

“This case presents an interesting ' and problematic ' situation for any court,” says David Korzenik, a partner at New York's Miller Korzenik Sommers and an adjunct professor of law at Yeshiva University Benjamin N. Cardozo School of Law. “You want to respect the doctrine of national treatment and honor the copyright laws of each nation, but you want to avoid anomalies ' such as disparate treatment of foreign copyrights ' that can occur when you honor those foreign laws,” he said. “Whichever way [the Ninth Circuit] ruled, there was going to be a counterintuitive result for one party or the other.”