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This is a followup to this comment and the subsequent interchange.

Suppose that a person A publishes a new edition of a work clearly in the Public Domain (PD) such as Conan Doyle's Adventures of Sherlock Holmes or Shakespeare's Hamlet. Suppose further that significant alterations and/or additions have been made to the PD text by A, but there is no copyright notice, and no explicit claim of authorship of those alterations, not in the name of A or,any other name. Is this work effectively protected by copyright?

If another person, B, copies A's revised version and publishes that, Can A successfully sue B? Would the equitable doctrine of "clean hands" prevent such a suit or be raisable as a defense? Could B claim that it is not reasonable to expect B to compare A's version with some other version to detect that changes have been made from teh PD version?

If the revised work includes a statement at the front such as "Includes revisions made 2018" but no statement or claim of authorship and no copyright notice, can A then sue?

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  • So the issue is does B have a defense of reasonable ignorance? A thought experiment - B finds some text and assumes it’s public domain because the language seems very dated.
    – George White
    Commented Nov 20, 2021 at 0:03
  • @George White Does B do any research, even a web search, to find if the text seems to be part of a PD work or not?
    – David Siegel
    Commented Nov 20, 2021 at 0:07
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    Maybe typed in the first paragraph or the title of the work. I still think is copyright infringement but I sympathize with the point of view that A doesn’t have a clear moral standing. The area of law I know best (patent law) convinces me that the law does not need to be logical or care about moral standing.
    – George White
    Commented Nov 20, 2021 at 0:22
  • @George White Black letter law says its infringement, but supercat may have a point about equity.
    – David Siegel
    Commented Nov 20, 2021 at 0:41
  • I agree but don’t have a basis to guess the likely legal outcome.
    – George White
    Commented Nov 20, 2021 at 1:11

3 Answers 3

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Is this work effectively protected by copyright?

Yes.

If another person, B, copies A's revised version and publishes that, Can A successfully sue B?

Yes.

Would the equitable doctrine of "clean hands" prevent such a suit or be raisable as a defense?

No. Copyright is a right granted by statute- it is not an equitable remedy so limitations from equity don’t apply, just as they don’t apply to contract disputes.

Could B claim that it is not reasonable to expect B to compare A's version with some other version to detect that changes have been made from teh PD version?

No. B is obliged to check that they are not breaching copyright before they make a copy.

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    -1 @daleM Equitable defenses can be raised in US copyright cases. For example: “the misuse defense prevents a copyright holder ... from enforcing the copyright in a court of equity.” (Metro-Goldwyn-Mayer Studios v Grokster, , 454 F. Supp. 2d 966, 994 ) (See Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978) The 9th Circuit expressly recognized the defense in Practice Mgmt. Info. Corp. v. AMA., 121 F.3d 516 (1997) At issue: "whether the copyright is being used in a way that violates public policy" 911 F.2d at 978 If it is, the copyright cannot be enforced,
    – David Siegel
    Commented Nov 20, 2021 at 23:07
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If the revised work contains no clear indication that it had been revised, then even if the "clean hands" doctrine is held not to apply, B is probably an "innocent infringer" under 17 USC 504 (c)(2), on the grounds that the "infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright". This reduces the floor on statutory damages to $200, but does not change the amount of any actual damages that may have been proved, if the plaintiff elects actual damages.

If it is the case that:

the revised work includes a statement at the front such as "Includes revisions made 2018" but no statement or claim of authorship and no copyright notice

then the reuser has "reason to believe that his or her acts constituted an infringement of copyright" and would not qualify as an inncent infringer.

I have not been able to find a reported case with a fact pattern similer to the one in the question.

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The clean hands doctrine says that "who comes into equity must come with clean hands", so if the plaintiff has dirty hands, their claim is to be denied. But publishing material that is in the public domain does not dirty one's hands, and copyright law does not impose an obligation to notify potential copiers that you have a legal right to certain aspects of a work made available to the public (the copyright notice is no longer necessary). So I see nothing in A's actions that dirties their hands.

The misuse doctrine is potentially applicable in copyright law. See MGM v. Grokster

Generally, the misuse defense prevents a copyright holder that has misused its copyright from enforcing the copyright in a court of equity. See Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978 (4th Cir. 1990).

However,

The threshold question is what conduct by the copyright holder suffices to trigger the misuse defense... the misuse inquiry focuses on "whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright."

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  • The argument is that by not indicating that the work is a revised version, A lures people into thinking that they can freely reproduce it, as "everyone knows" that Sherlock Holmes is PD. The A sues when B had no intent to infringe. B thinks this is a trap set by A, thus A has unclean hands. Isd B's biew valid? Would a court agree?
    – David Siegel
    Commented Nov 20, 2021 at 0:50
  • Not labeled might be clean hands, mislabeling might not. “Conan Doyle’s Adventures of Sherlock Holmes” does not say to me it is definitely pure and unchanged Conan Doyle vs fan fiction. And the quote is about “equity”. Equity might not be relevant in black and white infringement.
    – George White
    Commented Nov 20, 2021 at 1:21
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    Copyright is not an equitable doctrine
    – Dale M ♦
    Commented Nov 20, 2021 at 2:29
  • @daleM Equitable defenses can be raised in US copyright cases. For example: “the misuse defense prevents a copyright holder ... from enforcing the copyright in a court of equity.” (Metro-Goldwyn-Mayer Studios v Grokster, , 454 F. Supp. 2d 966, 994 ) (See Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970, 978) The 9th Circuit expressly recognized the defense in Practice Mgmt. Info. Corp. v. AMA., 121 F.3d 516 (1997) At issue: "whether the copyright is being used in a way that violates public policy" 911 F.2d at 978 If it is, the copyright cannot be enforced,
    – David Siegel
    Commented Nov 20, 2021 at 23:04
  • @DavidSiegel: Unclean hands is a defense, so the burden of proof is on B to show it. Wouldn't B have to show that A deliberately omitted the copyright notice, with the intent of "luring" people into infringing the copyright? What evidence could prove that, short of an actual confession by A? Otherwise, A will just say "it's settled law that a notice isn't necessary for copyright, and I just didn't feel like including one".
    – Nate Eldredge
    Commented Nov 21, 2021 at 6:53

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