TO AFFIX OR
NOT TO AFFIX?
COPYRIGHT NOTICE IN THE UNITED STATES
PAST & PRESENT
Tamar Kirschner
Libr 281, Final Paper
December 2, 1999
______________________________________________________________________
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The information in this paper on this site is intended to furnish readers with general information on matters that they may find to be of interest. While efforts are made to offer current and accurate information, errors can occur. This information is provided as is with no guarantee of completeness, accuracy, or timeliness, and without warranty of any kind, express or implied. The information presented on this site should not be interpreted as professional legal advice. You should consult with an attorney familiar with your particular factual situation for advice before making any decision.
Copyright 1999 by Tamar Kirschner.
Permission granted to reproduce and distribute for educational purposes
Introduction
What is the purpose of copyright notice? In United States law, personal property has never required any label, identification, or warning to be considered the rightful property of its owner. Yet throughout our history Copyright Law has strictly enforced the necessity of asserting ownership of intellectual property in a clear and visible way. Even now, when all original works are protected with or without proper copyright notice, one would be hard pressed to find a published work that does not include one.
A logical reason was laid out in the the House Report under the 1909 Copyright Act: "[It] has the effect of placing in the public domain a substantial body of published material that noone is interested in copyrighting (Nimmer on Copyright § 7.02)." Judges presiding in the 1951 case of Harry Alter Co. v. Graves Refrigeration further justified the need for notice: "Purpose of notice of copyright is to inform public of existence of copyright, time of commencement, by whom claimed, and to prevent innocent persons, who are unaware of existence of copyright, from suffering by making use of material (17 USCS § 401)." According to these explanations, copyright notice not only protects the copyright holder, but also the would-be innocent infringer and public interest.
Ownership of something as intangible as the expression of ideas can be complicated, and copyright notice gives both content owners and users simple guidelines from which to begin. Copyright Law concerning notice has undergone many changes over the centuries, each detail repeatedly fine tuned. It would be tedious to discuss each detail here, but taking a broad look at the evolution of U.S. copyright notice from its beginnings illuminates our collective attitude toward intellectual property.
History
Copyright Law dates back to the Constitution. At that time, copies of all works had to be given to the clerk’s office of the district court before publication in order to be protected under Copyright Law. In addition, after 1909 there were possible financial penalties for failing to register a work for copyright in this way, so there was little choice in the matter. This remained true until the most recent Copyright Act of 1976, which recognizes any creative expression as implicitly copyrighted as soon as it is fixed to a tangible medium. Although a copyright no longer has to be registered or indicated in a notice on the work, certain rules continue to apply to all published works.
It was not until the Copyright Law of 1831 that the issue of copyright notice officially entered the scene. Notices were required on any work that was to be protected. There were specific rules about notice appearing on the title page or title page verso of a book or on the front piece of any other type of creative work that was copyrightable at the time. All copyright notices had to read the same: "Entered according to act of Congress, in the year ____ , by A. B., in the clerk’s office of the district court of ___________ (Bielefield & Cheeseman, p. 22)." Unpublished works were not required to have copyright notice, only those that would enter the public market on a significant scale. This has continued to be so throughout the continuous changes in Copyright Law that followed in the next century and a half. (Jensen, p. 52)
The Copyright Act of 1909 in regard to notice was still quite strict, though there was some leeway as to the wording. There were three ways to indicate the fact of copyright: by writing the word out in its entirety, with the abbreviated "Copr.", or with the © symbol. Next, the correct date of publication and name of the publisher was mandatory. Placement was still crucial for books, journals, and musical works, but for all other copyrightable works, like maps, notice could be placed anywhere that seemed to be easily accessible. (Jensen, p.53-54) Removal of notice by anyone other than the copyright holder did not cause the work to enter into the public domain. Anyone tampering with notices on copies of a work and publicly distributing them faced criminal, rather than civil, charges. This aspect of Copyright Law has remained to date. (Nimmer on Copyright § 7.13)
Beginning with the Copyright Law of 1976, the issue of copyright notice became significantly more flexible. All works in any media, as long as they contained original expression, could be protected by copyright. Errors or even the ommission of notice could be rectified by "reasonable efforts" within a period of five years before a work would slip into the public domain. After the five years, though, no remedy would be possible. (Nimmer on Copyright § 7.02)
Although the inclusion of "Copyright", "Copr.," or © remained the only acceptable ways to indicate copyright, placement of notice on all items was a matter of choice, with the stipulation that it be reasonably accessible. Mention of the copyright holder’s name (usually the publisher) could be abbreviated on all works. (Jensen, p. 53-54)
There was extra flexibility around audio and audiovisual works because of the distinction between the performance of the expression and the physical copies through which these expressions were performed. Mary Brandt Jensen, professor of law and director of the law library at the University of Mississippi, gives the example of Martin Luther King’s "I Have a Dream" speech: "If a sound recording... had been published without any copyright notices, the lack of notice would have affected the copyright in the sounds but not the copyright in the words of the speech (Jensen, p. 53)." Most nations’ Copyright Laws did not require an affixed notice at all and the U.S. was beginning to get in step. (Bielefield & Cheeseman, p. 25)
Berne Convention Implementation Act
On March 1, 1989, the U.S. completed this transition when it joined the Berne Convention, an international copyright treaty that includes over 100 nations worldwide and all industrialized nations. (Nolo.com, 1999) Since then, affixing a notice has not been required. Copyright is automatic for the lifetime of the author plus fifty years after which it falls into the public domain. Works published before 1989 are still required to have the notice, however, and are subject to the Copyright Laws that were in effect at the time of publication.
However, for works published after that date, the copyright notice is mostly a reminder of Copyright Law and it does not have to appear in order for the Courts to recognize the copyright holder’s rights. It is, however, still recommended and would certainly strengthen a case against infringement. Nolo.com, the layman’s on-line guide to U.S. law, explains why copyright notice is still important:
When a work contains a valid notice, an infringer cannot claim in court that he or she didn’t know it was copyrighted. This makes it much easier to win a copyright infringement case and perhaps collect enough damages to make the cost of the case worthwhile. And the very existence of a notice might discourage infringement (Nolo.com, 1999).
Registering a work also became optional and is mostly done only after a work has become central to an infringement suit. A copy of the work must still be given to the Library of Congress under penalty of fine, but the work no longer loses its copyright status if such action is neglected. (Bielefield & Cheeseman, p. 28-29)
Current
Today, a proper and customary notice should include either the word, "Copyright", or the © symbol, the date of publication, and the name of either the author or the owner of all copyright in the published work. (Nolo.com, 1999) If the work is derivative of another copyrighted work or a compilation of other copyrighted works, then only the date of publication of the original item is necessary in order to assert copyright status for both works. A date is not always necessary at all: "The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles (17 USCS § 401)." Users should be wary because a copyright notice only states that something in the work constitutes original expression. A general notice visibly placed can apply to any portion. The work may contain material that belongs to public domain, but there is no requirement that a distinction be made. It is the responsibilty of the user to be sure only the portions in the public domain are taken, a laborious process that entails further research and comparison. (Jensen, p. 55)
As for placement of copyright notice, we still subcribe to the 1976 Act, which eradicates specifications, as long as it is visible "either directly or with the aid of a machine or device (17 USCS § 401)." Even so, the Register of Copyrights makes regulations available, by way of examples, for all types of works. These examples are not considered exhaustive, but allow for some uniformity. For instance, most people know to turn to the title page verso of a book to find the copyright notice. Additionally, while there is no mandatory order of elements included in a notice, it is general practice for the word or symbol for "Copyright" to appear first, followed by either the year of first publication or copyright holder’s name, followed by the remaining element. (Nimmer on Copyright § 7.05)
Since a 1994 U.S. Copyright Law amendment, foreign works that were published before 1989 with lack of or improper copyright notice by U.S. standards can be retrieved back from public domain if formal procedures are followed. This protects foreign copyright holders in the U.S. market, since the laws most nations always operated under required no copyright notice. It encourages more trade of intellectual property between the U.S. and the rest of the world. (Nimmer on Copyright § 7.01) In the same year, our NAFTA agreement with Canada and Mexico created new rights in the film industry: "The United States shall provide protection to motion pictures produced in another Party’s territory that have been declared to be in the public domain pursuant to 17 U.S.C. Section 405. n6 (Reichman & Bressler, 1994)." No such remedies are available to U.S. copyright holders in the same predicament.
Statements
A copyright holder may want to attach to the notice an assertion of full protection under the umbrella of current Copyright Law. Most commonly, especially in traditional print sources, the statement "All Rights Reserved" is used as a warning to potential infringers. Often copyright holders take it further by stating some form of the following statement: "Reproduction, in any form, in whole or in part without permission is prohibited." This is not strictly accurate, since it does not encompass the special limitations of Copyright Law given to libraries, researchers, educational facilities, and for other moderate and non-commercial copying. However, such sweeping statements tend to ward off reckless copying. These statements can also emphasize or clarify particular areas of Copyright Law for users, for example: "including photocopying or recording". Such clarifications are increasingly necessary with the rapid advances in technology and changing modes of information storage. Laws dealing with electronic copyright issues can be quite vague and transitory. Copyright statements might address this problem with instructions relevant to an electronic environment, such as: "specifically including the table of contents and index (often scanned for use in automated information storage and retrieval systems)."
A copyright holder may want to point to any limtations in Copyright Law that afford privileges to particular users, such as the statement that accompanies the American Library Association’s copyright notice in its monthly journal, American Libraries: "Materials in this journal subject to ALA copyright may be reproduced for noncommercial educational purposes." This statement does little more than to summarize the existing fair use exception, but is a considerate and helpful gesture and demonstrates the organization’s desire to promote research and education. Any extra permission not included in Copyright Law that the copyright holder may want to grant should also accompany the notice, along with the contact information of the copyright holder for those who wish to obtain special permission not granted on the work itself. I will elaborate on the issue of permission in just a few pages.
Audio & Audiovisual
Copyright notice on phonorecords of sound recordings follow virtually the same
guidelines as those of print sources, with a few exceptions. Rather than a © , it is
prescribed that each copy should bear the symbol of the letter "P" with a circle around it,
to stand for "Phonorecord". Often both symbols are included. In lieu of a copyright
holder’s name or abbreviation, a "generally known alternative designation of the owner
(17 USCS § 402)" may be used. Notice is customarily placed on the phonorecord itself,
on the label, or even on the outside container. By definition:
A phonorecord is a material object in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed, and from which sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device (Nimmer on Copyright § 7.05).
This ranges from musical works to books on tape. Since phonorecords are not technically copies of works, no notice has ever been required on literary or musical works embodied within them. (Nimmer on Copyright § 7.12)
Although film and video capture sound, audiovisual material is not considered part of the phonorecord family, and it follows different guidelines. Even before 1989 the sound in audiovisual copies did not require copyright notice for protection. Also, public performances, either with live audiences or through the use of machinery -as in movies- have never required notice.
Digitized
Copyrighting works in an automated environment is in an embryonic phase, and very few guidelines exist to direct either owners or users. Software that was published before 1989 must follow the laws in effect at that time, though placement and content of notice is not entirely specified. Notice guidelines have been outlined by Copyright Office Regulations as follows:
(1) on visually perceptible print-outs;
(2) at the user’s terminal at sign on;
(3) continuously on terminal display; or
(4) on a gummed or other label securely affixed to the container used as a permanent receptacle for the copies.
Whichever alternative is used, it should be on a constant basis. Erratic on-line notices offer less protection, as do notices affixed to disposable software containers or wrappers. (Nimmer on Copyright § 7.10)
The software industry’s interest in copyright protection blossomed in the 1980’s, after the passage of the Software Protection Act of 1980, which added a new section 117 n 103 to the 1976 Copyright Act. Before then, trade secret had been the customary mode of protection for these products. It is most common now for both shields to be used in conjunction. In these instances, dual notices are placed on the software copies. The first is the standard copyright notice, which serves to inform users of existing law. The second is usually a statement asserting trade secret status, for example: "The information contained herein is proprietary to ABC Corporation, and may not be disclosed to or used by any person not an employee of said company without express written authorization (Bender, 1986)." Actual cases involving software copyright and trade secret notice have offered little consistency as to the degree of protection software producers can obtain. It is as yet unclear whether the copyright notice compromises the strength of a case concerning an organization’s trade secret. (Bender, 1986)
Permission
There are instance in which a copyright holder may not want to reserve all rights and, instead, prefer to extend user rights beyond the scope of Copyright Law limitations. Since the current Copyright Law claims no need for notice, registration, or even publication in order for automatic copyright protection to be secured, the copyright holder must actively grant permission for the work to become public domain or to be open to certain user rights. (Jensen, p.55-56) Rights granted as part of the copyright notice may be very specific, perhaps granting limited copying rights but no distributing rights, and only those specified rights can be claimed by a user. A copyright holder, when granting these permissions, will probably still be trying to protect his/her market. Any detail omitted defaults to Copyright Law and a user can be made liable for infringement of that detail. This includes the use of language that is vague or undefined. The most common sources that include permission statements are journals, especially academic. These vary widely, sometimes even between different articles in the same journal. Usually the copyright holder in such a scenario seeks to expand the fair use rights of users with educational and/or scientific purposes. (Jensen, p. 134-137)
It is important to note that only the copyright holder can grant permission. This may seem like an obvious point, but it is one which can be convoluted by the fact that sometimes people erroneously believe they hold a copyright when they do not. An author of any expression is the first copyright holder. If s/he signs the rights over to a publisher or anyone else, it is legally binding. According to Jensen, publishers often operate under the assumption that the copyright to a work is automatically theirs when they publish it. This is not so without the documented go ahead granted by the author. So, when a publisher operating under this misconception grants special permission, the permission has no legal substance.
However, in most cases, no special permissions are granted on the work itself, and a user must contact the copyright holder in order to ask for permission or to buy certain licenses. If the copyright notice is thorough and includes the copyright holder’s contact information, then there is a greater likelihood that someone who might otherwise step over the boundaries of their rights will get proper permission, thus protecting the copyright holder’s interests and avoiding the possibility of troublesome legal proceedings. (Nolo.com, 1999)
Relevant Cases
In 1994, a 1st U.S. Circuit Court of Appeals ruled partly in favor of the plaintiff in an infringement suit, French designer and manufacturer Charles Garnier, who had failed to affix notice on his swirled hoop earrings at the time they were released to the public. Garnier’s earring design was copied by Andin International and replicas were sold in competition with the originals. When Garnier discovered the infringement in 1992, he quickly registered the copyright of his design, destroyed all remaining swirled hoop earrings in stock, and affixed notices on each new pair. This was enough for the Court, since he sought to cure the omission within five years, but summary judgement was granted to Andin International pending the recall of all copies that did not bear notice from the inventory of each store and distributor that carried them. Until then, copyright of the design would not be protected under the "reasonable effort" stipulation. (The New York Law Publishing Company, 1994)
A similar sort of half and half ruling entered into the 1995 case of Metzke v. The May Department Stores Company. The department store chain was selling Taiwan-made knock-offs of potpourri jars copyrighted by Metzke. The jars were originally crafted and distributed before the Berne Convention Implementation Act, and each copy did carry proper notice. The defendant claimed that the notice was "tiny" and "essentially illegible", and requested summary judgement. But the Court concluded that the notice was reasonable, even if it did require "close examination", so summary judgement was denied and the unlawful copies were removed from the public market. On the flip side, the defendant was not held liable for infringement damages, since the copier was the Taiwan-based vendor and not the department store chain. (Legal Communications, LTD, 1995)
The copyright notice in the magazine, Sing Out!, that published lyrics to a folk song in the public domain with an added third verse written by Doris Plenn was found to be improper and, therefore, inapplicable. Only one notice appeared for all works contained in the magazine, which is valid. The error was that the magazine’s publisher, Sing Out, Inc., listed itself as the copyright holder of all works therein. That action several decades ago cost Plenn the rights to her lyrics, and they entered into public domain when she made no action to remedy the situation. These facts came to bear in the 1995 case of Sanga Music, Inc. v. EMI Blackwood Music, Inc. in the Second Circuit U.S. Court of Appeals, after the musical group, Enya, made a sound recording of the song, including the third verse. Defendants were granted summary judgement since the Court ascertained that the lyrics had been in the public domain since they were first published in Sing Out! (Andrews Publications, 1995)
Finally, in the pre-’89 software case of M. Bryce & Associates, Inc. v. Gladstone, the defendant was accused of using the plaintiff’s trade secret management information system methodology, which had been printed on a document bearing copyright notice. The defendant pointed to the the unamended aspect of the Copyright Act of 1909, which infers that electing a remedy other than trade secret under state trade secret law is akin to waiving one’s trade secret rights. The state appellate court ultimately ruled in favor of the plaintiff’s breach of contract claim for two particular reasons:
First, it found a clear demarcation between the subject matter protectable by the two methods-- content for trade secret versus form of expression for copyright. Second, the court found an equally clear distinction in the respective ambits of both conduct and malefactors against which protection was afforded: Copyright protects against copying by anyone, whereas trade secret protects against use or disclosure only by those in some prescribed relationship to the owner (Bender, 1986).
While it was unclear as to whether the copyright notice -which allowed for unlimited copies of the manual itself- fell under common law or Federal Copyright Law, the copyright was looked at as a separate matter and did not preempt trade secret.
Conclusion
It has been a long road from the uptight copyright notice rules of 1831 to the more internationally-accepted policy of protection for all works, though the U.S. still holds back as much as possible. It has taken us all this time to be assured that the Constitution, and specifically the Constitutional rights of users of intellectual property and the public interest, would not be compromised by advancing in this direction. The Constitution stands as the ultimate protection of our sacred freedom, both symbolically and in actuality, and intellectual freedom is as treasured a personal right as there is. Nevertheless, it benefits everyone involved, as well as the United States’ role in an increasingly global market to strike a balance between the rights of copyright holders and users. Copyright notice no longer controls the destiny of intellectual property.
Copyright Law of 1831
Copyright Act of 1909
Copyright Law of 1976
Berne Convention Implementation Act of 1989
Foreign Works Amendment of 1994
Sources
17 USCS § 401-402. (1999). Title 17. Copyrights, Chapter 4. Copyright Notice, Deposit, and Registration. LEXIS Law Publishing.
Andrews Publications. (1995, July 15). "2nd Circuit holds song’s publication placed it in the public domain." The Entertainment Litigation Reporter.
Bender, David. (1986, Summer). "The future of software protection: protection of computer programs: the copyright/trade secret interface." The University of Pittsburgh Law Review.
Bielefield, Arlene & Lawrence Cheeseman. (1997). Technology and copyright law: a guidebook for the library, reasearch, and teaching professions. New York, NY: Neal-Schuman Publishers, Inc.
Jensen, Mary Brandt. (1996). Does your project have a copyright problem? A decision-making guide for librarians. Jefferson, NC: McFarland & Company, Inc., Publishers.
Legal Communications, LTD. (1995, April 17). "U.S. District Court--western; intellectual property." Pennsylvania Law Weekly.
The New York Law Publishing Company. (1994, October 28). "After NAFTA, U.S. resurrects copyright in public domain works." New York Law Journal.
The New York Law Publishing Company. (1994, November 7). "Author must have cured omission." The National Law Journal.
Nimmer on Copyright § 7.01-7.13. (1999). "Chapter 7. Statutory Formalities Introduction." Matthew Bender & Company, Inc.
Nolo.com. Copyright protection: what it is, how it works. Retrieved 11/30/99 from the World Wide Web at: http:www.nolo.com/encyclopedia/faqs/pct/pct18.html
Trademark Search
For the cover of this web published paper I created a symbol that consists of a blue broken circle with purple dots connecting the four arcs and a vertical purple wave running through it. Though it is an original creation, its elements are rather generic, so it is unlikely that I am violating anyone else’s trademark. To be sure, I did a trademark search in the U.S. Patent & Trademark Office databases (http://trademarks.uspto.gov/cgi-bin), inputting various combinations of "broken", "circle", "sphere", "vertical", "wave", and "line". I searched both Federal and State databases since the Internet has no geographic boundaries. My searches yielded no significantly similar results. The closest trademark I found was this:
The company that owns the trademark is Fusherashi Co., LTD, a Japan-based manufacturer of "metal industrial fasteners, namely, nuts and bolts." Apart from the fact that my symbol is not confusingly similar to theirs, and the fact that a broken circle is somewhat generic, my copyright notice paper does has no relation to the industry of "metal industrial fasteners". It does not diminish their trademark and it does not compete with their market. Therefore, I conclude that my symbol has lawfully been placed on-line.