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Suppose a person creates an original work that would qualify for copyright protection. But then that creator publishes the work and claims that it was actually created by some long-dead artist, which (if true) means that the work is in the public domain.

Having published the work in a way that credibly disclaims copyright protection, is the creator estopped from making any future claim of copyright in the work?

(The first step in this scenario is not uncommon: See, for example, forgeries and musical hoaxes. Often the false attribution is done to draw attention to the work that the true creator may not merit. Which could be part of a fraudulent scheme. But for the purposes of this question: allow that the creator has not profited from the false attribution before attempting to claim copyright.)

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It’s an open legal question if copyright can be “disclaimed”

Copyright is a statutory property right that comes into existence when an artistic or literary work is created. Unless that statutory scheme provides a mechanism for extinguishing that right, it’s legally uncertain that this can be done. As an analogy, if you own a car, you can’t leave it by the road and say, “that is no longer my car”; you have dispose of the car in accordance with the law to extinguish your ownership of it.

Most jurisdictions provide only one mechanism for the extinction of copyright - lapse after a specified time period.

Estoppel might be the wrong lens

While there is a strong argument for proprietary estoppel by encouragement, which requires:

  • A (the inducing party) to play a role in the adoption by B (the relying party) of an assumption as to the existing legal rights of B or as to the future conduct of A;
  • B alters his position in reliance upon his assumption about his presently existing rights or in reliance upon his assumption in relation to his future acquisition of property rights;
  • It was reasonable for B to adopt and act on the assumption in the way that he did, and A, with knowledge about B’s assumption, ought reasonably to have expected B to change his position in reliance upon that assumption;
  • B has, or will, suffer an identifiable detriment if A departs from the induced assumption upon which B acted to alter his position; and
  • it would be against the conscience of A for A, by her action or inaction, to depart from B’s assumption.

Here:

  • A has induced B to believe the work is public domain and that B therefore has a legal right to publish it;
  • B altered his position by publishing it;
  • Depending on the circumstances, it may or may not be reasonable for B to have done this. B would need to prove that it was;
  • B will suffer a detriment; and
  • it would be unconscionable for A to profit from that.

While these elements might be made out, and should certainly be part of a defence against the copyright infringement suit, there's a more straightforward defence.

A is committing fraud

He is dishonesty and deceptively attempting to both obtain financial advantage and cause financial harm by bringing the suit. QED.

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  • Surely a competent lawyer would pursue both angles, yes? Nov 3, 2023 at 15:54
  • @A.R. That’s what I said
    – Dale M
    Nov 3, 2023 at 19:46
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is the creator estopped from making any future claim of copyright in the work?

It depends on the extent to which the author's conduct is indicative of abandonment, which precludes a subsequent claim of copyright.

Black's Law Dictionary defines abandonment as "[t]he voluntary relinquishment of possession of thing by owner with intention of terminating his ownership, but without vesting it in any other person. [...] 'Abandonment' includes both the intention to abandon and the external act by which the intention is carried into effect. [...] [T]he intention is the first and paramount object of inquiry [...] the lapse of time may be evidence of an intention to abandon, and where it is accompanied by acts manifesting such an intention, it may be considered in determining whether there has been abandonment".

Establishing the element of non-vesting is straightforward: Attribution to someone the author knew was dead reflects that ownership is not to be vested in any other person.

The external act is the author's voluntary attribution to the long-dead artist.

Intention to terminate ownership seems harder to prove, "although the lapse of time may be evidence of an intention to abandon", Id. See also National Comics Publications, Inc. v. Fawcett, 191 F.2d 594 ("We do not mean that the "proprietor" [...] may not evince such a consistent disregard of his right to copyright [his work] as to justify the inference that he intends to "abandon"", brackets added).

Whether or not the author profited from the false attribution seems inconsequential. The question of abandonment is decisive because to abandon entails "intent of never again resuming one's right or interest". Black's Law Dictionary.

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