John G. Koeltl

“ A work is a "Berne Convention work" if-- (1) in the case of an unpublished work, one or more of the authors is a national of a nation adhering to the Berne Convention, or in the case of a published work, one or more of the authors is a national of a nation adhering to the Berne Convention on the date of first publication; (2) the work was first published in a nation adhering to the Berne Convention, or was simultaneously first published in a nation adhering to the Berne Convention and in a foreign nation that does not adhere to the Berne Convention. ”

“ In fact, no part of the copying element of the claim is in controversy in this action, because defendants Russian Kurier,
Page 1125 Inc. and Oleg Pogrebnoy do not claim to have obtained any authorization from anyone to publish the articles that they have copied into Kurier. They rest their defense in this case on the allegation that while they have no rights to the works that they have copied, neither do the plaintiffs. They argue that the plaintiffs do not possess rights in the copied works, but that the rights are possessed solely by the individual authors of the works. ”

“ Plaintiff Itar-Tass Russian News Agency, formerly known as the Telegraph Agency of the Soviet Union (TASS) , is a privately owned news gathering corporation centered in Moscow. Plaintiff Itar-Tass, USA, Inc., a New York corporation, is its wholly owned subsidiary with its principal place of business in New York, New York. Plaintiffs Argumenty i Fakty, Komsomolskaya Pravda, Express Gazeta, Moskovskie Novosti ("Moscow News") , and Nezavisimaya Gazeta are private newspapers with their principal places of business in Russia. The newspapers also distribute and sell papers in the United States. ”

“ In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes ”

“ Another means by which a news organization may acquire exclusive rights under Russian law is by contract. A reporter may
Page 1129 transfer his rights to his work to his employer by an Author's Agreement. See Article 30. There was extensive testimony that [**25] reporters do transfer their rights to their newspaper publishers to exploit their articles. ”

“ This is a copyright infringement action in which the plaintiffs seek preliminary injunctive relief enjoining the defendants from unauthorized copying for profit of the publications of the news organization plaintiffs. [1] The news organization plaintiffs are members of the Russian press. They have sued the defendant Russian Kurier, Inc. and others for allegedly participating in the infringement of their rights in news articles and reports by copying the articles without authorization and publishing them in the United States in a newspaper called Kurier. ”

“ The plaintiffs have yet to receive the certificates of copyright registration for which they applied. [7] In any case, the registrations are not directly relevant to the present application for a preliminary injunction because the preliminary injunction is directed at preventing the continued and ongoing publication of the copyrighted works after March 13, 1995. ”

“ The Bratus and Sadikov commentary, relied on by the plaintiffs' expert as well as the defendants', states: The organization-legal person owns the copyright to the publication as a whole. Copyright is retained in full by the authors of the works included in such a publication. ”