Stanley Hagendorf v. David A. Brown, Martin W. Basiszta

ORDER

We have considered the petition for rehearing and opposition and treat the petition as one for reconsideration, which is granted. Hagendorf argues correctly that one condition for maintaining a valid copyright following publication without copyright notice is “a reasonable effort ... to add notice to all copies ... distributed to the public in the United States after the omission has been discovered.” 17 U.S.C. § 405 (a)(2). See Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 827 (11th Cir.1982).

However, this court was not adjudicating a copyright claim by Brown, but rather the applicability of California’s “judicial proceeding” privilege in a libel action by Hagendorf. Brown did not need a wining claim to be able to invoke the privilege, see, e.g., Albertson v. Raboff, 46 Cal.2d 375 , 295 P.2d 405, 409, 410 (Cal.1956), and it was not our intention to imply that he had one.

But the privilege does not apply to communications that “facially excee[d] any legitimate purpose.” Herzog v. “A” Company, Inc., 138 Cal.App.3d 656 , 188 Cal.Rptr. 155, 158 (App.1982). We found it necessary to respond to Hagendorf’s argument that Brown had no copyright and no…