Pouring Analog Wine into Digital Bottles
By Catherine Sansum Kirkman
Internet publishers frequently want to put online valuable creative properties dating from the analog days. But does a publisher have the legal right to "go digital" with a creative property, without first obtaining permission from, and making the inevitable payment to, the original author or rights-holder?
Enter the lawyer, whose job it is to determine what legal rights are implicated by a proposed online use and who is legally entitled to exercise those rights. This column will discuss how preexisting license agreements are interpreted by the courts to cover uses that were not explicitly spelled out at the time of the contract. This issue arises when licensing permission was acquired to use a creative property, but the buzzwords "online," "interactive," "multimedia" or similar terms were not used. This is the case for most licenses granted before the Internet and multimedia made it big in the early 1990s, although electronic-rights clauses were in use in the publishing industry before then. Further complicating the matter is the fact that even today, "multimedia," "electronic," and similar categories of legal rights do not have a single legal meaning, so disputes are still likely, even when these terms have been used in a contract.
Many times during this century, the courts have had to interpret the scope and meaning of existing contracts for new technologies such as "talking" motion pictures, television broadcasting, and home video. The question is whether the right to exploit a work in these media should be granted to a particular licensee or reserved by the counterpart licensor.
