Copyright or PD, 1946 radio broadcast

[Mark600]

What is the name of your state? Nj
I am locked in a battle royale with eBay. They susepended me for selling a transcription of a radio broadcast made by Al Jolson on WOR in New York in October of 1946. I understand eBay taking an interest in insuring their site is not used for the commerce of copyrighted materials, but I feel it behooves them to understand just when such materials move into the public domain.
I beleive that unless the radio station re asserted their copyright, that the program has long been in the PD. Has WOR renewed their copyright? I say very unlikely. If so, is it not their responsibility to notify eBay that their copyrighted material is being sold. Absent that are we not reasonable to assume that the 23 year period of copyright has come and gone without renewal.
Furthermore, eBay has literally hundreds of listings of OTR (old time radio) programs. Just type OTR into their search. Jack Benny, Fiber McGee, Bing Crosby, hundreds of programs. Are these recordings not in the public domain?
What say you copyright attorneys?

 

[racer72]

Ebay doesn't go through all the listings looking for those possibly violating copyrights. Someone filed a complaint, that is why you were 86'd. Contact Ebay for the name of whoever filed the complant and you will probably also find out who owns the copyright.

 

[Mark600]

You may be right but here's is what I think happened. The first time I heard from eBay on this was just days after I originally listed the item. In order to be forthright with buyers, I put in the listing that what they were getting is a CD-R of the radio program. In the event you are unaware, a CD-R, is a CD that you burn, i.e. create, yourself on your home computer. Since CD-Rs are a great source of illegal copying, as audio and video cassettes have been before them, I beleive eBay has software that that scans listings for "CD-R" and variations thereof. CD-Rs have become the bane of ASCAP and BMI as well as software developers since you can easily copy any audio or software CD very easily. To insure no such copies are sold on eBay, I beleive they scan for these and similar words. My first encounter was too quick for a copyright holder to have responded.
I told eBay the material was PD and relisted it without the words CD-R. I said you are receiving a copy of material that is in the Public Domain. Once that wording was in, I didn't hear from them for a while until they wrote me that they had warned me before and I was suspended.
In any event, absent the remote possibility that WOR has renewed it's copyright, is this material now in the public domain?

 

[divgradcurl]

Hi Mark600,

You are correct in assuming that, unless the copyright was renewed, the work would be in the public domain. Check out http://www.bitlaw.com/copyright/duration.html for a simple explanation, or U.S.C.S. Title 17 Section 304 for the more compicated version.

You should (although I have never tried) be able to check with the Copyright office to see if the work's copyright has been renewed.

eBay is just trying to protect itself from being vicariously liable for copyright infringement -- if it allows infringing material to be sold through it's service, it opens itself up (potentially) to liability. Therefore, rather than try and determine what might be infringing, it just blocks a whole bunch of potentially infringing material.

Also, it is not safe to "assume" -- if WOR has renewed their copyright, it will be on file in the copyright office, and that filing will be "constructive notice" -- the court will assume that you knew about the copyright due to constructive notice, and may find that you willfully infringed, which could open you (and eBay) up to greater damages.

So, eBay is doing the right thing to protect itself here. If you go to the copyright office and find that there is no renewal registration filed, then it is pulbic domain and you could approach eBay with the evidence -- but the burden of proof will be on you in this case to show that you are not infringing on WOR's copyright.

This is info I've researched myself and studied in my copyright class, but does not in any way represent legal advice -- not even close!