Darlene A. Cypser

Dear Mr. Pierce:

I think you are to be commended for your attempts to educate indie filmmakers about intellectual property law. However, you keep creating a false dichotomy in your articles, including the recent "Intellectual Property in the Digital Age" in Issue 63 Vol. 13 of Moviemaker Magazine, between "common law copyright" and "statutory copyright."

There is no common law copyright on anything that is "fixed in any tangible medium." You write "As soon as a screenwriter puts pen to paper or a photographer releases the shutter, copyright protection is afforded to the author. This is known as 'common law copyright.'" That is incorrect.

17 USC §§101 & 102, states that once a copyrightable work is "fixed in any tangible medium of expression" from which it can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" statutory copyright exists in that work. To be "fixed in any tangible medium of expression" it must be in a form that is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated."

17 USC §301 pre-empts common law copyright in anything covered under the statute, i.e. all work that is fixed in a tangible medium, such as the two examples that you gave.

The 9th Circuit reiterated that point on May 24th in its opinion in Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (2006): "Sections 301(a) and (b) of Title 17 describe when the Act preempts legal and equitable rights granted by state common law or statute. Section (a) states: On and after January 1, 1978, all legal and equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103 . . . are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.... Congress explained what the statute made obvious: "[t]he intention of section 301 is to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copyright and that extend to works, within the scope of the Federal copyright law." H.R. Rep. No. 94-1476, at 130 (1976); see also Maljack Prods. v. GoodTimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996)."

Thus common law copyright would persist in things that were not "fixed" such as an unrecorded performance, but not in a written screenplay or photograph. Movies are by nature "fixed" and thus only statutory copyright applies.

Darlene Cypser, Esq.