Customs Historical Effect in Copyright

Copyright law sometimes will embrace custom as a valid excuse to an infringement claim. In United States Naval Institute v. Charter Communication  Inc., Naval, licensed Charter to publish and distribute the soft back version of the book Hunt for Red October. According to the licensing agreement, the soft-back edition could not be published until October of 1985. The reason being that Naval wanted the profits from the hardback edition for the longest possible time. Charter eventually sped up the printing and distribution of the books to as early as September 20, in various bookstores. Naval eventually sued for infringement on the sales for the days prior to October. Charter contended that the “constructive knowledge of the custom and practices as to early shipping of the books would allow the paperback edition to arrive at stores before the October date, just as long as the issues were not sold. Eventually, after an appeal, the court recognized an infringement on the books sold to persons before October but “the trial court’s finding that the agreement permitted Berkeley to ship before October was not erroneous,” due to custom. This case suggests that even if one sues for infringement the court will look at custom in the agreements between the parties to determine whether an infringement occurred.

However, in Effects, defendant Cohen argued that the section 204 writing requirement (copyright statute) did not pertain to him because “Movie makers do lunch, not contracts”. His suggestion was that due to the custom of the movie industry, a transfer of ownership can take place without the writing requirement of section 204. The court rejected this argument. The court reasoned that (1) common sense tells us that agreements should routinely be put in writing and (2) this encourages them to take their promises seriously because it is harder to backtrack a written contract than an oral one. In addition, the court looked at the purpose of section 204 noting that “it enhances predictability and certainty of copyright ownership – Congress paramount goal when it revised the act in 1976.” This case would suggest that this particular movie industry custom cannot override the copyright law. However the court explained that “The Supreme Court and this circuit, while recognizing custom and practice in the industry have refused to permit movie makers to sidestep the …writing requirement”. This case suggests that perhaps a custom argument can pass judicial scrutiny based on the copyright statute or in the internet world, but the court will look at the purpose of the statute.