Wednesday Writs: Debbie Does Dallas, and the Public Domain

[WW1] Case of the Week: M & A Associates, Inc., v. VCX, Inc

We live in an epoch in which the creative mind has no limit to its modes of expression. Music, art, literature, blogging, film.. new creations every day, each the lovingly crafted object of its creator. Our laws are written to protect the rights of these creators, so that none may take from them their intellectual property.

However, even copyrights have their limitations. Under certain conditions and often after a prescribed period of years, some works become public domain to be used by the masses as they see fit, without attribution or remuneration to the artist. This can be a good thing, when it makes the classics so easily accessible to all who care to see, such as Moby Dick, the works of Shakespeare and Beethoven, the art of Van Gogh, Debbie Does Dallas, etc.

“Wait, what?” you say. “That trollop from Texas isn’t THAT old, is she?” No, she’s not, and neither is her famed film. And yet the whole thing is readily available for viewing on Wikicommons.  How is this so?

It was 1978 when Debbie and her pals fornicated their way through the Big D (little A, double L-A-S) on the big screen. The film’s creator, a Mr. David Buckley, was given the rights to the film by his production company, Schoolday Productions. The film debuted in October of 1978 at the Pussycat Theatre in New York City and was then shown widely in theaters which screened pornographic films. That December, all rights, title, and interest in the film was transferred to M & A, a company owned by a Michiganian named Arthur Weisberg.

M & A then contracted with VCX, a company which manufactured and distributed video tapes, giving VCX the exclusive right to distribute the film on video. As part of the agreement, VCX would pay M & A $10 royalties for each copy sold, with a $25,000 advance payment, to be credited at $2,500 a month against the royalties for ten months. About a month after the agreement was signed, VCX president Norman Arno received a copy of DDD. After viewing he noticed something: There was no copyright notice on the film. Arno notified Weisberg and asked for copyright protection.

A few months later, in April of 1979, bootleg copies of Debbie Does Dallas began to surface. Arno hired lawyers to pursue litigation against the porn pirates, and was advised that he would need to add copyright notices to all copies of the film and file a registration with the copyright office, which required certain information from Weisberg. It also required that the same notice be placed on theatre versions of the movie, which Arno did not have the rights to. Arno’s lawyers got in touch with Weisberg to request the notice be added to the theatre version -a common process- but Weisberg would not do it.

Without the copyright, Weisberg could not actually transfer exclusive video distribution rights to Arno, which was explained to Weisberg and his partners. Weisberg was also told that he had no protection against bootleggers of the film, but still he refused. The lawyers determined in late 1981 that all reasonable efforts to add copyright protection to the film had failed. This lack of protection meant that VCX could not sue the bootleggers to stop unauthorized distribution, and thus lost out on sales. Nevertheless, VCX did continue to sell what copies they could. VCX honored its agreement, paying M & A over $235,000 over the next year or so, then stopped in March of 1982.

M & A then sued VCX in federal court in our case of the week, M & A Associates, Inc., v. VCX, Inc. VCX countersued, alleging that M & A was the breaching party. After hearing the evidence and arguments of the parties in 1987, Judge Woods (yes, really) of the US District Court for the Eastern District of Michigan produced a written opinion setting forth the rationale of his decision, which was based on the Copyright Act of 1976.

First, the Court had to determine the original “author” of the work. This is normally the individual who actually creates the work, but in some situations it is actually the employer of that person, when the creation is at the behest of and for the benefit of the employer. The author of Debbie Does Dallas was determined to be David Buckley; he was not an employee of Schoolday Productions, reasoned Judge Woods, because he was actually the sole officer, director, and shareholder of the company. As such, he owned all rights to the film and had the power to transfer those rights to M & A, which in turn gave M & A the authority to assign its rights as well.

Turning to the contract at hand, the Court noted that the instrument itself was silent as to copyright. Under Michigan law, which the Court determined applicable to the case, the Court had to look at the “true intent” of the parties. Both parties admitted that they had not considered legal copyright protections specifically in negotiating the contract. M & A argued that by “exclusive rights”, it meant that M & A would not give those rights to any third party. Even if this was correct, the Court pointed out, without copyright protection M & A was essentially giving anyone and everyone the same supposedly exclusive right promised to VCX.

Because the contract purported to give VCX “exclusive” rights to Debbie Does Dallas, it follows that copyright protection was an implied term of the contract. This gave rise to an obligation on M & A’s behalf to obtain such protections in order to fulfil his contractual promise of exclusivity. M & A’s refusal to do so meant that VCX was paying $10 royalty per video for essentially nothing. The Court thus dismissed M & A’s claim for breach, declining to require VCX to continue paying royalties for a worthless right to exclusivity.

VCX asked the Court to require M & A to pay restitution for damages arising from its failure to ensure copyright protections to effectuate the terms of the contract. The Court agreed, awarding VCX more than $225,000, the amount “in excess of the fair market value of what Weisberg furnished to VCX.”

M & A claimed the doctrine of laches should prevent VCX from recovering. Laches basically means it is unfair to make the loser pay, because the winner waited too long to raise the claim and the loser was somehow prejudiced. In support, M & A pointed out that VCX knew in 1979 that the copyright notice was missing, but waited nearly four years to sue.

However, the Court did not find the delay unreasonable. The distribution of a film to theatres triggers the requirements of copyright notification. A copyright, including the © symbol or word, the year the work was first published, and the name of the copyright owner, must be affixed to the work. Failure to do so “injects the work into the public domain.” However, even if the copyright is not affixed, as long as the registration of the copyright was made before publication or within five years after, and “reasonable effort” is put forth to affix the copyright notification to all known copies, notification requirements can be excused.

At some point, M & A’s Weisberg had registered the copyright; however, he had made no effort to affix the copyright notice to existing copies of the film, making the registration insufficient to create a right of exclusivity which he could then convey to VCX.

The Court found that Weisberg’s actual knowledge of the deficiencies in copyright protection occurred in 1981, when VCX asked him to affix the notification to the theatre versions of the film. The lawsuit was filed in 1983, a delay that the Court did not deem so unreasonable as to invoke laches as a defense.

The result of the suit was judgement entered in favor of VCX in the amount of $225,440.00, and the American classic, Debbie Does Dallas, being thrust forever into the world of public domain.

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