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Suppose Bob owns the copyright to a TV show. Unfortunately, Bob isn't very smart, and he keeps the only copy in the world in a warehouse, and the warehouse accidentally burns down. Does this have any effect on Bob's ownership of the copyright?

At some point in the future, Bob wants to file a copyright infringement claim (like maybe someone with really good memory saw the show and recreated it from scratch). How can Bob prove infringement if there is nothing to compare it to?

Kate Gregory
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SegNerd
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    Would you consider replacing the TV show with a poem, so that the version re-created from memory can be 100% identical to the original? That would remove a major variable that doesn't seem to be directly related to the question. – Someone Feb 07 '24 at 20:20
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    I would also suggest replacing a TV show with something else. TV shows do not emerge from nothing. There will be tons of unused shots, dozens of actors, extras, camera operators, audio technicians and other people involved with scripts, notes and plenty of other imperfect "copies" of the show. – Tom Feb 08 '24 at 13:52
  • @Jen I know the question is tagged for USA, but in other countries, 'registering' a work is not needed for copyright to apply. – MikeB Feb 08 '24 at 13:54
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    @MikeB It's not required in the US, either. It helps with enforcement and allows the holder to claim additional damages. (I think Jen's comment referred to the fact that a copy must be provided to the US Copyright office in order to register a copyright, which would negate the premise that the only copy was destroyed.) – chepner Feb 08 '24 at 13:58
  • next they will be asking if nobody ever saw or heard it before it burned down, does it still exist? – Kphysics Feb 08 '24 at 15:26
  • Does the copyright office really keep copies of every work ever submitted to them? Can they really recover them on request? It's a little late to reword the question, but feel free to assume it was a written work if that makes the legal issue clearer. – SegNerd Feb 08 '24 at 18:24
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    @Someone: The density of the copyrighted work, and its corresponding inability to be recreated from memory, seems like a key part of the question. – Corbin Feb 08 '24 at 19:25
  • Is this question based on The Simpsons? – user253751 Feb 08 '24 at 21:30
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    @chepner: Strictly speaking, it was required in the US (regardless of whether you wanted a copyright!), but the DC Circuit says that's a taking so now it's not required anymore. – Kevin Feb 08 '24 at 23:41
  • @Someone if it was recreated, would it be a copy of the first poem, or a different poem derived from the first one by the same author that now owns copyrights to both of them. – user28434 Feb 09 '24 at 14:35
  • @user28434 if I memorize a poem word for word and write it out, I don't think any claim could be plausibly made that it's a derivative work. It's simply a copy. – Someone Feb 09 '24 at 15:49
  • @user253751 No. I don’t even know which Simpsons you are talking about. But I obviously don’t remember all 760 episodes, so it could be in there. – SegNerd Feb 10 '24 at 03:02
  • @SegNerd in "The Day the Violence Died", Bart isn't very smart, and accidentally burns down the only copy of a movie he's trying to sue someone over the copyright of. – user253751 Feb 10 '24 at 22:28

3 Answers3

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Does this have any effect on Bob's ownership of the copyright?

No. You can own a copyright to something you don't have a copy of. Enforcing it might indeed be difficult however.

ohwilleke
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    +1 To put it another way, Bob has exactly the legal rights under copyright law after the fire as he did before -- he just has a lot less evidence with which to prove it. – bdb484 Feb 08 '24 at 01:25
  • @bdb484 I totally agree. – ohwilleke Feb 08 '24 at 01:31
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    Not difficult, it is unenforcable. Cf. "The two fundamental criteria of copyright protection [are] originality and fixation in tangible form" Feist Publications, Inc. v. Rural Tel. Serv. Co.. – user3819867 Feb 08 '24 at 13:31
  • If a playwright's heir physically possessed all authorized copies of a play that had been performed and seen by many, and where then to destroy all extant copies and retype the play from memory, would the copyright on the play expire 70 years from the death of the original playwright, or after the death of the heir, if the newly-typed play was viewed as indistinguishable from the original play that many people had seen? – supercat Feb 08 '24 at 17:57
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    @supercat From the death of the original playwright. – ohwilleke Feb 08 '24 at 17:59
  • @ohwilleke: Even though between the destruction of the original scripts and their retyping, the work would not exist in any tangible form whatsoever? I suppose that if copyright didn't persist despite the lack of tangible form, then anyone and everyone who independently transcribed a copy of the play from memory would have equal rights to it, but then it's unclear what exactly the "tangible form" requirement actually means. – supercat Feb 08 '24 at 18:18
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    @supercat Yes. Once the copyright arises from the work being placed in tangible form, there is no requirement that this be in continuous existence for the copyright to continue to exist. – ohwilleke Feb 08 '24 at 18:21
  • @supercat only if you are a pharmaceutical company. Then you can find a different use for the play, and renew your copyright. Wait. I might have mixed two IP concepts. – Mindwin Remember Monica Feb 09 '24 at 14:47
  • As I mentioned below, there is 2 aspects on intellectual property: a) the creativity behind it, and b) the time factor. Do not forget that the claim could have two parts: 1) Bob had the idea and somebody copied his idea (the how would be quite relevant as the work doesn't exist) and 2) He had the idea before the other person. Point 1 could be easier to prove, point 2 without any physical proof is quite difficult. I can turn around the question: How would Bob proof he is not the copycat or wants to make easy money? – Canelo Digital Feb 09 '24 at 15:16
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    @MindwinRememberMonica that's a Patent. – Trish Feb 09 '24 at 19:31
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    @CaneloDigital There is no claim for ideas. ideas are not copyrightable at all and never were – Trish Feb 09 '24 at 19:42
  • Sounds like you can have the beer but it will be empty. – akostadinov Feb 10 '24 at 16:05
  • @Trish Yes. "I might have mixed two IP concepts". – Mindwin Remember Monica Feb 14 '24 at 14:19
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Though you don't have to register a copyright to hold the rights, you do have to register it before you can bring a lawsuit for infringement.

If the video was already registered, then there may still be a copy in the Library of Congress (or partial copy). If not, the person who lost the only copy would not be able to register it and thus not bring a suit.

Adrian McCarthy
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We can assume it's not a TV recording of the show, nor the original filming tapes with actors, etc. but only a manuscript, otherwise the work would have many copies lying around (tv station, etc.). So the show never got filmed nor streamed and the original manuscript got burnt.

Theoretically Bob owns the copyright, but how does he prove it? To be able to fully enforce a copyright you usually have to register your work in the corresponding administration to prove 2 things: a) the work is yours, and b) you had the idea at time X (before person B at a later time). Also if you have any proof of the original work with an official timestamp (post or email over a public service), that would be enouh, but in this case there is nothing, just a work hidden in a storage locker.

Now to be able to enforce in future the copyright, he would at least have to remember from scratch the main points in the TV Show, write them down again and register those with the US Copyright office. Otherwise Bob will face a lengthy trial where he will have to defend his claim that he had the original idea and somebody "stole" it from him, also taking into account, that the accused could argue he came by himself to a similar idea at an earlier point in time than Bob. That would be pretty costly for Bob with very few chances to win, except he would have proof that the accused got the idea from him (voice recording, email traffic of aknowledgment, etc.). Nevertheless if the accused did register his work properly before the claim and Bob did not even have the slightest register of his idea (not even an email to himself over a public server as gmail where he describes his idea), it will very very difficult for bob to defend his claim.

To register a claim to copyright with the U.S. Copyright Office, the claimant must: (1) submit a properly completed application; (2) pay a nonrefundable fee; and (3) deposit the required number of copies of the works to be registered.

So it depends on the country. I know that in switzerland for example specially in early times, an (e)mail to yourself over a public (e)mail service (which cannot falsify dates), is enough to make a claim, even if the counterparty registers the work for himself at a later date. This would be a valid proof. Then the second step would be to compare the works to judge if they are similar enough to infringe copyright.

hope that helps

Canelo Digital
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  • Ideas are not copyrightable. Only the specific expression is. – Trish Feb 09 '24 at 19:44
  • that's what I implicitly refer to... as a composer, poet, author, or even software-developer the idea is the artwork, the artwork is the materialized idea, or as you mention it: the specific expression. for example: a hardware-chip architecture is based on an idea, and the specific expression is the materialization of the idea. didn't I express that clearly enough? the term work (like artwork) is clear to me, and the concept too... – Canelo Digital Feb 11 '24 at 23:01
  • Idea =/= specific expression in law. Chips also are not covered by copyright at all. The Idea of "Home alone" is "Bratty kid is left at home over christmas and defends his home against silly thieves." That is not protectable, because ideas have no creative expression. The movie Home Alone has creative expression and is copyrighted. – Trish Feb 11 '24 at 23:05
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    As stated I know that well, hence the use of the term "work" in my answer. And yes, Chip architecture is copyrighted as stated here https://en.wikipedia.org/wiki/Semiconductor_intellectual_property_core – Canelo Digital Feb 11 '24 at 23:34