Summer calls out for a cool drink and good reading material. In today’s blog entry, we’ll look at the significance of the months of July and August in terms of literary copyright history. Grab your sangria.

Part I: July 18th is celebrated in many European countries as Saint Frederick’s Day, commemorating the murder in 838 of Frederick, Bishop of Utrecht, known for his piety and erudition. In Spain, St. Frederick’s Day holds special significance. It was the saint’s day that the Granadan poet and playwright Federico Garcia Lorca (Lorca) shared with his father Federico. On July 18, 1936, the family was celebrating at its country home at the Huerta de San Vicente outside Granada. The poet had returned home from Madrid just days earlier, lionized in the local press for his recent successes on the Madrid stage, having completed the manuscript of a new play that would become The House of Bernarda Alba.

But darker forces were also at work on July 18, 1936. From the Canary Islands, General Francisco Franco broadcast a message to “take back Spain” from the democratically elected Spanish Republican government. He called upon troops and sympathizers in Spanish Morocco and mainland Spain to join the Nationalist uprising and take up arms, thereby launching the Spanish Civil War that lasted for three long and exceptionally bloody years. A few weeks later in Granada, Lorca was caught in those cross hairs and arrested by sympathizers of Franco’s Falangist movement. The charges were trumped up; he was said to possess a radio with which he ostensibly communicated with “Bolsheviks.”  More likely, Lorca’s anti-Fascist and pro-Republican leanings, as well as his defiance of middle class Catholic norms (as portrayed in his plays and persona life), enraged local commanders and would-be politicians in Granada.

Lorca met his untimely death at the age of 33 in 1936 (more details in our August blog entry) having already published numerous collections of poetry (Book of Poems, Poems of Deep Song, Gypsy Ballads, Poet in New York), plus several plays that had been produced in Spain and Latin America (The Shoemakers Prodigious Wife, Blood Wedding, Yerma, Dona Rosita the Spinster, and The House of Bernarda Alba.) In Spain, this body of work finally passed into the public domain on January 1, 2017, following the conclusion of the calendar year (2016) that marked 80 years since his death.  Spain has applied a lengthier term of protection to the works of certain authors than the European Union’s norm of “life plus 70” years.  The “extra decade” of protection for the works of Lorca had created a sense of pent up demand from publishers, theatrical producers and creators who were eager to bring Lorca’s works to the public but chafed at the control and conditions imposed by the Lorca heirs. The lapse of copyright protection means that in Spain publishers, writers, translators, playwrights, and others are finally free to reproduce, perform, adapt or create new derivative works without seeking consent from the Fundación Federico Garcia Lorca that represented the heirs’ interests.

And yet, paradoxically, Spain’s most famous writer since Cervantes has found his enduring longevity far from home: across the Atlantic in the United States. Due to the way the U.S. Congress “fast tracked” the legislation by which the U.S. joined the WTO in 1995, known as the Uruguay Round Agreements Act (URAA), copyright protection for certain foreign restored works, including the works of Lorca, will remain in effect in the United States for years to come.

How did this situation arise? Before answering that question, let’s review the status of copyrights laws in Spain that governed the protection for his prodigious output of poems and plays. During Lorca’s lifetime, copyright for literary and dramatic works in Spain was governed by the 1879 Copyright Act which granted a term of protection of 80 years from the death of the author. Under that Act, Spanish authors were required to register their works with the Registro Nacional (National Registry) within one year of the date of publication to affirm title and secure copyright protection; however, the work did not have to be published in order to be registered, since protection attached from the moment of creation. Dramatic works that were performed on stage and also registered with the Registro Nacional received copyright protection whether or not the plays were also published by a drama service or literary house.  The Spanish copyright system of the day was thus more lenient toward authors than  the U.S. system of the period governed by the 1909 U.S. Copyright Act (the 1909 Act) which still abided by stricter formalities regarding the period within which registration of published works needed to be secured and which did not accord protection to dramatic works unless they were “fixed” in a tangible medium such as a printed play book (video recording not yet having been invented.)

When a democratic Spain adopted a new copyright law, effective December 7, 1987, it adopted the Berne Convention scheme by which an author’s right is made up of two distinct types: the economic or patrimonial right and the moral right.  The 1987 Copyright Act specifically incorporated the 80-year term of protection from the 1879 Act for the economic rights of authors who created their works under the 1879 Act and died prior to December 7, 1987.  This group included Lorca as well as other notable authors of the early twentieth century. The 1987 Copyright Act also carried forward the notion of authors’ moral rights which had first been adopted when Spain joined the Berne Convention in 1933. Moral rights today include the right to claim recognition for authorship of a work and the right to integrity of a work, restraining any distortions, modifications or alternations that are likely to prejudice the author’s legitimate interests or threaten his or her reputation, and the right to alter the work (subject to certain limitations.) Moral rights are descendible under Spanish law; in the case of Lorca, his moral rights descended to his heirs. Whether the moral rights of the Lorca heirs might still be in effect after the economic rights have gone into the public domain as of January 1, 2017 is an unsettled question; jurisprudence on the post-mortem exercise of moral rights is scant in Spain.

But the status of copyright protection for Lorca’s works in the Spanish language in the U.S. was problematic by the early 1990s. While several popular English-language translations of Lorca’s plays remained protected under US copyright law, it was thought that failure to abide by formalities like renewal and copyright notice required by the 1909 Act may have jeopardized full protection for the original Spanish works that had been created in the 1920s and 1930s. Perhaps this is what led the Lorca heirs to take advantage of the narrow window of opportunity afforded by the URAA to apply to restore copyright in his body of work. The heirs filed just such a Notice of Intent on May 8, 1997 with the US Copyright Office, which was published in the Register of the Copyright Office on August 22, 1997. The first listed work was Lorca’s chilling drama of revenge, Blood Wedding (Bodas de Sangre in Spanish.)

Under this Notice procedure, parties who had been using any of the listed Lorca works, relying on their status as public domain works, had a limited period to continue their use before negotiating with the heirs to obtain authorization or cease their use altogether. Once that period elapsed, the exclusive rights under copyright, including the right to authorize new translations or adaptations, belonged to the Lorca heirs; any public performances of the plays would henceforth require their prior permission and, correspondingly, payment of royalties.

Next time, we’ll look at the turn of events that led to the anomaly that Lorca’s works live on under U.S. copyright protection while now freely available in Spain.

Read the full article in the Journal of the Copyright Society of the USA.

This blog piece is adapted from the article “Federico Garcia Lorca: The Paradox of Duration of Copyright by the author that appeared in the Journal of the Copyright Society of the USA, Vol. 65, No. 1, Winter 2018.

For our inaugural issue, and because it’s harvest time in California where we are located, we’ll devote space to a little understood form of intellectual property protection called geographical indicators or GIs that are about to become headline news. In the U.S., GIs can be protected as certification marks or perhaps collective marks through registration at the USPTO and some trademarks may incorporate geographic terms.  But other countries and the European Union have more elaborate sui generis systems for protecting and registering GIs; some treaties also protect GIs. This difference in approach and attitude is fueling tensions in several international arenas that have direct effects on producers in California and other states, and policymakers in Washington, D.C.

WIPO and Free Trade Agreements

Developments at the World Intellectual Property Organization (WIPO) in Geneva about Geographical Indicators (GIs) and new Free Trade Agreements (FTA) negotiated by the European Union (EU) with Canada, Japan and China in recent months will have direct bearing on the worldwide marketability of dairy and viticulture products, not only those originating in the U.S., but also those from other large exporting countries like Argentina and Australia. http://money.cnn.com/2017/07/04/news/economy/japan-eu-trade-deal-summit/index.html The EU FTA negotiations with the Mercosur countries of Argentina, Brazil, Paraguay and Uruguay began in early October in Buenos Aires and will continue through the end of this year. It’s likely the EU will seek to extend within the Mercosur countries the same protections it achieved for its list of GIs agreed earlier with Canada, Japan and China. Old World and New World norms in food culture are clashing, and the talks are peppered with old-fashioned trade policy maneuvers.

Your Feta or Greek Feta

The push for expanded GI protections has now reached international proportions. It affects the bottom line of US and other New World producers who argue that many Old-World designations for cheese in particular have become mere common names or generic terms for food items in North and South America and Asia and are no longer deserving of special protection. At stake is the use of such terms as Feta, Asiago, Gorgonzola or Fontina, among others, to label cheeses that move in the global marketplace. In this two-part article, we’ll look at the essential vocabulary for understanding this form of intellectual property protection and analyze the regulations and policy issues at play that may affect clients in these important industries.

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