Copyright notice

Introduction

The use of a copyright notice is no longer required under copyright law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.

Notice was required under the 1976 Copyright Act. This requirement was eliminated when the adhered to the Berne Convention, effective March 1, 1989. Section 401(a) of the current Copyright Act provides:

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Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright . . . may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.

”

Although works published without notice before that date could have entered the public domain in the United States, the Uruguay Round Agreements Act (URAA) restored copyright protection for certain foreign works originally published without notice.

Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is the subject of infringement, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in Section 504(c)(2) of the 1976 Copyright Act.

The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or copyright registration with the Copyright Office.

Form of Notice for Visually Perceptible Copies

Copyright symbol

The notice for visually perceptible copies should contain all the following three elements:

1. The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; and
2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, and sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

Example: © 2006 John Doe

The “C in a circle” notice is used only on visually perceptible copies. Certain kinds of works—for example, musical, dramatic, and literary works — may be fixed not in copies but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are phonorecords and not copies, the “C in a circle” notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.

Form of Notice for Phonorecords of Sound Recordings

The copyright notice for phonorecords embodying a sound recording is different from that for other works. Copyright in a sound recording protects the particular series of sounds fixed in the recording against unauthorized reproduction, revision, and distribution. This copyright is distinct from the copyright of the musical, literary, or dramatic work that may be recorded on the phonorecord. Phonorecords may be records (such as LPs and 45s), audio tapes, cassettes, or disks.

The notice for phonorecords embodying a sound recording should contain all the following three elements:

1. The symbol "P in circle" (the letter P in a circle); and
2. The year of first publication of the sound recording; and
3. The name of the owner of the copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.

Example: P in a circle 2006 A.B.C. Records Inc.

Position of Notice

The copyright notice should be affixed to copies or phonorecords in such a way as to “give reasonable notice of the claim of copyright.” The three elements of the notice should ordinarily appear together on the copies or phonorecords or on the phonorecord label or container. The Copyright Office has issued regulations concerning the form and position of the copyright notice.

For works reproduced in machine-readable copies, notice should be:

• With or near the title or at the end of the work, on visually perceptible printouts
• At the user’s terminal at sign-on
• On continuous display on the terminal
• Reproduced durably on a gummed or other label securely affixed to the copies or to a container used as a permanent receptacle for the copies.

Contributions to Collective Works

A “collective work” is one in which a number of contributions that are separate and independent works in themselves are assembled into a collective whole. Examples of collective works include periodicals (such as magazines and journals), encyclopedias, and anthologies.

A single copyright notice applicable to the collective work as a whole serves to indicate protection for all the contributions in the collective work, except for advertisements, regardless of the ownership of copyright in the individual contributions and whether they have been published previously.

However, a separate contribution to a collective work may bear its own notice of copyright, and in some cases, it may be advantageous to utilize the separate notice. As a practical matter, a separate notice informs the public of the identity of the owner of the contribution. For works first published before March 1, 1989, there may be additional reasons to use a separate notice. If the owner of the collective work is not the same as the owner of an individual contribution that does not bear its own notice, the contribution is considered to bear an erroneous notice. Additionally, if an individual author of contributions to a periodical wishes to make a single registration for a group of contributions published within a 12-month period, each contribution must carry its own notice.

A notice for the collective work will not serve as the notice for advertisements inserted on behalf of persons other than the copyright owner of the collective work. These advertisements should each bear a separate notice in the name of the copyright owner of the advertisement.

Publications Incorporating Government Works

Works by the U. S. government are not eligible for copyright protection. For works published on and after March 1, 1989, the previous notice requirement for works consisting primarily of one or more government works has been eliminated. However, use of a notice on such a work will defeat a claim of innocent infringement as previously described provided the notice also includes a statement that identifies either those portions of the work in which copyright is claimed or those portions that constitute U. S. government material.

Example: © 2006 Jane Brown. Copyright claimed in Chapters 7—10, exclusive of government maps

Copies of works published before March 1, 1989, that consist primarily of one or more works of the U. S. government should have a notice and the identifying statement.

Unpublished Works

The copyright notice has never been required on unpublished works. However, because the dividing line between a preliminary distribution and actual publication is sometimes difficult to determine, the author or copyright owner may wish to place a copyright notice on any unpublished copies or phonorecords that leave his or her control. An appropriate notice for an unpublished work might be:

Unpublished work © 2006 Jane Doe

Omission of Notice and Errors in Notice

The effect of publishing a copyrighted work without a copyright notice depends on whether the work was first published before or after March 1, 1989. For works published before March 1, 1989, initial publication without a copyright notice would have extinguished their copyright and consigned them to the public domain.

The 1976 Copyright Act attempted to ameliorate the strict consequences of failure to include notice under prior law. It contained provisions that set out specific corrective steps to cure omissions or certain errors in notice. Under these provisions, an applicant had five years after publication to cure omission of notice or certain errors.

Although these provisions are technically still in the law, their impact has been limited by the Berne Convention Implementation Act of 1988 ("BCIA"), which made notice optional for all works published on and after March 1, 1989. Today, the publication of a work without a copyright notice has no impact on the copyright. However, there may still be instances, such as the defense of innocent infringement, where the question of proper notice may be a factor in assessing damages in infringement actions.

Omission of Notice

Omission of notice is publication without a notice. In addition, some errors are considered the same as omission of notice. These are:

• A notice that does not contain the symbol © (the letter C in a circle), or the word “Copyright” or the abbreviation “Copr.” or, if the work is a sound recording, the symbol P in circle (the letter P in a circle);
• A notice dated more than 1 year later than the date of first publication;
• A notice without a name or date that could reasonably be considered part of the notice;
• A notice that lacks the statement required for works consisting preponderantly of U.S. Government material; and
• A notice located so that it does not give reasonable notice of the claim of copyright.

The omission of notice does not affect the copyright protection, and no corrective steps are required if the work was published on or after March 1, 1989. For works published between January 1, 1978, but before March 1, 1989, no corrective steps are required if:

1. The notice is omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or
2. The omission violated an express written requirement that the published copies or phonorecords bear the prescribed notice.

In all other cases of omission in works published before March 1, 1989, to preserve copyright:

1. The work must have been registered before it was published in any form or before the omission occurred, or it must have been registered within 5 years after the date of publication without notice; and
2. The copyright owner must have made a reasonable effort to add the notice to all copies or phonorecords that were distributed to the public in the United States after the omission was discovered.

If these corrective steps were not taken, the work went into the public domain in the United States 5 years after publication. At that time all U.S. copyright protection was lost and cannot be restored.

Error in Year

If the copyright duration depends on the date of first publication and the year given in the notice is earlier than the actual publication date, protection may be shortened by beginning the term on the date in the notice.

Example: A work made for hire is created in 1983 and is first published in 1988. However, the notice contains the earlier year of 1987. In this case, the term of copyright protection would be measured from the year in the notice, and the expiration date would be 2082, 95 years from 1987.

Error in Name

When the person named in the notice is not the copyright owner, the error may be corrected by:

1. Registering the work in the name of the true owner; or
2. Recording a document in the Copyright Office executed by the person named in the notice that shows the correct ownership.

Otherwise, anyone who innocently infringes the copyright and can prove that he or she was misled by the notice and obtained a transfer or license from the person named in the notice may have a complete defense against the infringement claim.