The U.S. District Court for the Northern District of Illinois, Eastern Division in FASA Corp. v. Playmates Toys, Inc. (1995) 892 F. Supp. 1061 stated:
16. In the instant case, we find that federal authority, as well as that of Illinois and California converge on the conclusion that Playmates’ waiver form is unenforceable because it purports to require the signor to waive unknown future claims. Such a waiver is void as against public policy (FASA Corp, supra, 1066).
17. The California Civil Code provides that “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release. . . .” Cal. Civ. § 1542. Thus, we believe that California recognizes the general proposition that a waiver of future unknown claims is unenforceable (FASA Corp, supra, 1066).
22. In the instant case, we are persuaded that a purported waiver of future, unknown federal intellectual property rights is unenforceable and void as against public policy. Such a waiver would permit a party to violate another’s intellectual property rights with impunity in contravention of the clear and long standing public policies underlying the trademark, copyright and patent laws. Giving force to such waivers would invariably stifle creativity and inventiveness and inhibit inventors from presenting their creations to others. Thus, even if we were not to look at state law as a guide we would reach the same conclusion: The waiver of unknown future claims is unenforceable (1070).
The Ninth Circuit Court of Appeals in A&M Records v. Napster, Inc. (2001), 239 F.3d 1004 stated:
“Waiver is the intentional relinquishment of a known right with knowledge of its existence and the intent to relinquish it.” United States v. King Features Entm’t, Inc., 843 F.2d 394, 399 (9th Cir. 1988). In copyright, waiver or abandonment of copyright “occurs only if there is an intent by the copyright proprietor to surrender rights in his work.” Melville B. Nimmer & David Nimmer, Nimmer On Copyright P 13.06 (2000); see also Micro Star v. Formgen, Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (discussing abandonment) (1026).
The United States District Court for the Central District of California, Western Division in Lanard Toys Ltd. v. Novelty, Inc. (2006), 2006 U.S. Dist. LEXIS 96703 stated:
The Court concludes that, insofar as plaintiffs have established a likelihood of success of the merits on their claim for copyright infringement as to the protected elements on the packaging of plaintiffs’ “Drop Copter” toy, plaintiffs are entitled to a presumption of irreparable harm. See, e.g., Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999) (citing Cadence Design Sys., 125 F.3d at 826). Moreover, the Court concludes that defendants have failed to rebut this presumption of irreparable harm. First, the Court is unpersuaded, as defendants appear to contend, that plaintiffs have abandoned their copyright in the packaging of plaintiffs’ “Drop Copter” toy. “In copyright, waiver or abandonment ‘occurs only if there is an intent by the copyright proprietor to surrender rights in his work.'” A&M Records v. Napster, Inc., 239 F.3d 1004, 1026 (9th Cir. 2001) (quoting 4 Nimmer & Nimmer, Nimmer on Copyright P 13.06 (2000)). Accordingly, the Ninth Circuit has held that “abandonment of a right must be manifested by some overt act indicating an intention to abandon the right.” Microstar v. Formgen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998) (citing Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960)). It does not appear from the record that plaintiffs have manifested an intention to abandon their copyright through any overt act (Lanard Toys, supra, 41-42).
The Ninth Circuit Court of Appeals in Micro Star v. Formgen Inc. (1998), 154 F.3d 1107 held:
In case FormGen didn’t license away its rights, Micro Star argues that, by providing the Build Editor and encouraging players to create their own levels, FormGen abandoned all rights to its protected expression. It is well settled that rights gained under the Copyright Act may be abandoned. But abandonment of a right must be manifested by some overt act indicating an intention to abandon that right. See Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960) (Micro Star, supra, 1114).
The Second Curcuit Court of Appeals in Nat’l Comics Publs., Inc. v. Fawcett Publs., Inc. (1951) 191 F.2d 594 held:
[W]e do not doubt that the “author or proprietor of any work made the subject of copyright” by the Copyright Law may “abandon” his literary property in the “work” before he has published it, or his copyright in it after he has done so; but he must “abandon” it by some overt act which manifests his purpose to surrender his rights in the “work,” and to allow the public to copy it (Nat’l Comics, supra, 598).
The following are from headnotes in Nat’l Comics in the LexisNexis document:
Section 21 of the Copyright Act, 17 U.S.C.S. § 21, provides that when the proprietor has sought to comply with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright as against an infringer who has actual notice.
Section 9 of the Copyright Act (Act), 17 U.S.C.S. § 9, declares that it is the author or proprietor of any work who is entitled to its copyright, § 10 of the Act declares that he may obtain it by publication with the required notice affixed, and § 19 of the Act prescribes what the notice must be.
The First Circuit U.S. Court of Appeals in Egner v. E. C. Schirmer Music Co. (1943) 139 F.2d 398 stated:
When their compilation was put on sale at the West Point Hotel, this publication and sale with the consent of Gruber amounted to such a general publication as to dedicate the song to the public and worked an abandonment of Gruber’s common-law right to a copyright. “If an author permit his intellectual production to be published his right to a copyright is lost as effectually as the right of an inventor to a patent upon an invention which he deliberately abandons to the public, and this, too, irrespective of his actual intention not to make such abandonment.” Holmes v. Hurst, 1899, 174 U.S. 82, 89, 19 S.Ct. 606, 609, 43 L.Ed. 904. Wagner v. Conried, C.C.S.D.N.Y. 1903, 125 F. 798; see Werckmeister v. American Lithographic Co., 2 Cir., 1904, 134 F. 321, 326, 68 L.R.A. 591 (Egner, supra, 399-400).
The US District Court of Arizona, in Melchizedek v. Holt (2011) 792 F. Supp. 2d 1042 stated:
An overt act indicating the abandonment of copyright protection in one work does not automatically result in the abandonment of copyright protection in subsequent works. E.g., Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1395 (C.D. Cal. 1990) (finding that abandonment ended when the plaintiff changed the contents of the copyright notice on his newsletters; yet, the revised notice did not avoid abandonment of the newsletters distributed under the original notice) . . . At a minimum, the original selection and arrangement of the materials in the Copyrighted Works are subject to copyright protection distinct from copyright protectionin the 1992 Video (Melchizedek, supra, 1052, bold typeface added).
17 USCS §102 reads in full:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
KJV Truth Music 