US District court says that the artistic license is a contract

US District court says that the artistic license is a contract

Posted Aug 25, 2007 0:43 UTC (Sat) by bojan (subscriber, #14302)
Parent article: US District court says that the artistic license is a contract

I'm not sure how the author of the article concluded that this licence is a contract. All the judge says is that he believes that based on the scope of the licence, the plaintiff would not have a cause of action based in copyright:

> Therefore, under this reasoning, Plaintiff may have a claim against Defendants for breach the nonexclusive license agreement, but perhaps not a claim sounding in copyright.

I think what the judge missed here is that this licence is a gift - that is because it is a gratuitous promise - in other words, the licensor isn't asking for any promise or performance in return (things necessary for a contract to form). So, the licensor won't be able to "get" the licensor on any kind of contractual obligation, as there aren't any.

Which leaves us where? I think the judge (with all due respect) overlooked the fact that mucking around with copyright notices is in itself copyright infringement:

http://www.copyright.gov/title17/92chap5.html#501
http://www.copyright.gov/title17/92chap1.html#106a
http://www.copyright.gov/title17/92chap5.html#506

So, it is inherent in copyright law that "do not change copyright notice" is by definition within the "scope of the licence".

Otherwise, anyone could simply change any copyright notice on any work that was licensed under a permissive licence and get away with it. If that were true, then this would be meaningless:

http://www.copyright.gov/title17/92chap3.html#301

In other words, copyright would lose its power to lesser laws rather quickly. I think we are likely to see and interesting appeal here.

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