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02A copyright notice
About This Page
This page contains the following subsections:
1909 Act: §18
1947 Act: §19
1976 Act: §401 (visually perceptible copies), §402 (phonorecords), Transitional and Supplementary Provisions §108 (for pre-1978 works when copied 1978 and later)
CFR: §202.2 Copyright notice.
House Report 94-1476 provides background and perspective.
“Before March 1, 1989, the use of copyright notice was mandatory on all published works, and any work first published before that date should have carried a notice. For works published on and after March 1, 1989, use of copyright notice is optional.” (Information Circular 14)
“[T]he 1988 Berne Convention Implementation Act … amended the copyright law to make the use of a copyright notice optional on copies of works published on and after March 1, 1989.” (Information Circular 3)
“Works published before January 1, 1978, are governed by the previous copyright law. Under that law, if a work was published under the copyright owner’s authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.” (Information Circular 3)
Although the case as a whole involved a question of whether the work was entitled to copyright, the Court took note of an error of date in the notice:
“In regard to volume 35, the title was deposited January 28, 1867, and the notice printed in the volume purports to show that the copyright was entered in 1866. The statute required that each copy of the book should have inserted in it a statement of the year the copyright was entered. It is sufficient to say, in answer to this objection, that the variance must be regarded as immaterial, inasmuch as the statement that the title was recorded in an earlier year than the actual year, being conclusive on the person taking the copyright, could cause no injury to any other person or to the public, because the copyright would expire in twenty-eight years from the expiration of the year stated in the notice in the book, and not in twenty-eight years from the time of the recording of the title.”
With regard to another volume in the same series, the Court addressed an omission of one of the claimants in the notice:
“In regard to volume 36, it is objected that the certificate of the clerk shows that the printed title was deposited by ‘E. B. Myers & Chandler,’ and that the printed notice of the entry of copyright in the volume as published purports to show that the copyright was entered by E. B. Myers alone. We think that, under the circumstances of the case, as the printed notice contained the name of E. B. Myers, the variance was immaterial, and that the statute was substantially complied with, particularly as it is not shown that the defendants were misled by the variance or induced to do or omit anything because of it.”
The Court decided in favor of the publisher insofar as these notices are concerned as well as insofar as the works contained sufficient new work to warrant copyright protection.
This would be a simple case of a copyright notice on a reprint that was deficient, thus rendering the work into the public domain. However, because the two parties to the suit were suing each other over payments and because of contractual agreements, the result was that the Supreme Court had to decide whether a seller of a copyright of a work which thereafter entered the public domain was himself prohibited from reprinting it given the contractual issue.
Hubbard Bros. bought rights to a previously-published book from N.D. Thompson & Co., acquiring “book, plates, copyright, illustrations, and stamps”. (The book was Manning’s Illustrated Stock Doctor and Live Stock Encyclopedia, by J. Russell Manning, M.D., V.S.) The two parties thereafter sued each other over unpaid installments, different interpretations over what was included in the sale, and Thompson selling copies of the work. When the Supreme Court received the case, “The remaining question is as to whether Hubbard, as the owner of the copyright of the Manning book, can maintain his suit against Thompson for its infringement.
“The following statement is made in the brief by Hubbard: ‘It is conceded that plaintiff’s book was duly entered for copyright; that before publication a printed copy of the title of the book was delivered at the office of the librarian of Congress at Washington; that, within ten days after publication, two complete copies of the best edition of the book were delivered at the office of the librarian of Congress at Washington; and that on the page next after the title-page there was printed, in every copy of the first edition of the book, notice of copyright in the following words, viz.: “Entered according to act of Congress, in the year 1880, by N.D. Thompson & Co., in the office of the Librarian of Congress, at Washington.” It is also conceded that, after Mr. Thompson had delivered the electrotype plates of the book to Hubbard Brother, they changed the form of the copyright notice so as to read as follows, viz.: “Entered according to Act of Congress,” in which form the notice was printed in the copies of several editions, and that afterward plaintiff again changed the notice of copyright so as to read as follows: “Copyright, 1880,” in which last mentioned form the notice was printed in the copies of several editions.’
“One of the forms used by Hubbard did not state either the year in which the copyright was entered, or by whom it was entered; while the other form mentioned the year but not the name.[…]
“It is very clear that Hubbard, as the proprietor of the copyright, was bound to give the statutory notice in the several copies of every edition published by him, and that he did not do so. The plain declaration of the statute is, that no person shall maintain an action for the infringement of his copyright, unless he shall give notice thereof by inserting the prescribed words in the several copies of every edition published. That means, every edition which he, as controlling the publication, publishes. His failure to give such notice debars him from maintaining an action for the infringement of his copyright. The word ‘action’ means an action either at law or in equity.[…]
“It is not enough that Thompson, while he owned the copyright, gave the required notice in the copies of every edition he published, while it was his copyright. The inhibition of the statute extended to and operated upon Hubbard while he owned the copyright, in respect to the copies of every edition which he published, and for his failure he is debarred from maintaining his action.”
The only remaining issues concern specific aspects of the actions of Thompson and Hubbard, not aspects of copyright law per se. Nonetheless, the findings of the Court reveals that these two parties did not escape justice for their misdeeds:
Given that Thompson had contractually disclaimed the rights he previously had, this could mean he was bound not to reprint the work. However, given his opponent’s lack of standing, Hubbard did not have grounds insofar as copyright was concerned to sue. The rest of the public was not so restricted: “The view is urged, that … as Thompson himself took the copyright, and had vested the title to it in Hubbard, he has no right to infringe the copyright, although it may be invalid as to the rest of the world. But we are of opinion that the failure of Hubbard to comply with the statute operated to prevent his right of action against Thompson from coming into existence. This right of action, as well as the copyright itself, is wholly statutory, and the means of securing any right of action in Hubbard are only those prescribed by Congress.”
A copyright notice had appeared in print formatted like this:
|Copyright by the Real Estate Record and Builders’ Guide Co.|
|Vol. LXXV||May 6, 1905||1938|
“[T]he date on the second line is the date of publication, and evidently was not intended to be a part of the notice of copyright… . A continuous black line is drawn completely across the column between the first and second lines, making it perfectly clear that the copyright notice was regarded as fully finished upon the first line, and that the second line was used for the different purpose of giving the date of publication, the volume number, and what seems to be the total number of the weekly issues.”
EDITOR’S NOTE: The law says that where a book is issued in multiple volumes, each must have a copyright notice. There wasn’t any comparable rule for motion pictures, but when a movie was distributed to be shown in installments of successive chapters, one new part shown each week, it had been standard practice that each chapter was copyrighted separately. Where a feature-length movie was distributed with the expectation that the whole of it would be shown in one admission, one registration covered the whole of the movie, even though the projectionist would mount and dismount multiple reels.
Shooting Big Game With a Camera was registered as a “motion picture other than photoplay” with a length of 6000 feet distributed across eight reels. “Upon the first reel, and upon that reel only, appeared the notice, ‘Copyright 1928 by F. B. Patterson, Pres. of National Cash Register Co.’”
Defendant “Cummins got hold of one of the positive copies” and had Empire Laboratories make a duplicate negative. From 1,000 to 1,500 feet were incorporated into a later motion picture titled The Jungle Killer, which Cummins copyrighted giving claimant name as Century Productions Inc. on August 15, 1932.
The defense argued that the reels other than the first had no copyright notice, thus these reels were fair game. In that the earlier movie contained genuine scenes of hunts in actual jungles, these scenes could be easily intercut with newly-shot scenes to make The Jungle Killer more exciting with less of Cummins’s effort.
The Court ruled, regarding the earlier film: “This picture was copyrighted as a whole under one title and the first reel did bear sufficient notice. The division of the picture into reels was more or less arbitrary for convenience in handling… [thus] the picture should be treated as one, so far as notice is required, making the one notice the picture bore as effective as though each reel had been separately so marked.”
(Another aspect of this case is summarized under limited publication of movies.)
The copyright notice on all of the dolls manufactured in 1964 by a particular company read
Dolls made previous years had no notice. The Court concluded: “All dolls sold or publicly distributed by [Danish firm Dam Things] without copyright notice are in the public domain, including [troll] dolls made in Denmark… and sold to [American distributor Scandia House] during 1961 and 1962, and dolls made by [firm’s American licensee] Royalty Designs, Inc., and sold by Dam Things to Scandia House.”
The Copyright Office rejected the company’s attempt at deposit because the notice carried the name of the country and not the copyright proprietor. The Court agreed that the Copyright Office acted properly. Furthermore, the company by manufacturing dolls in 1964 that had “1961” as the date in the notice and depositing them in the Copyright Office did not reverse the error committed since 1961, in that the huge quantities of the dolls already sold had put the design into the public domain. (The court action occurred when Dam Things licensed Uneeda Doll Co. to manufacture copies.)
From the Code of Federal Regulations, Title 37, §202.2 Copyright notice:
“(a) General. (1) With respect to a work published before January 1, 1978, copyright was secured, or the right to secure it was lost, except for works seeking ad interim copyright, at the date of publication, i.e., the date on which copies are first placed on sale, sold, or publicly distributed, depending upon the adequacy of the notice of copyright on the work at that time. The adequacy of the copyright notice for such a work is determined by the copyright statute as it existed on the date of first publication.
“(2) If before January 1, 1978, publication occurred by distribution of copies or in some other manner, without the statutory notice or with an inadequate notice, as determined by the copyright statute as it existed on the date of first publication, the right to secure copyright was lost. In such cases, copyright cannot be secured by adding the notice to copies distributed at a later date.
“(3) Works first published abroad before January 1, 1978, other than works for which ad interim copyright has been obtained, must have borne an adequate copyright notice. The adequacy of the copyright notice for such works is determined by the copyright statute as it existed on the date of first publication abroad.
“(b) Defects in notice. Where the copyright notice on a work published before January 1, 1978, does not meet the requirements of title 17 of the United States Code as it existed on December 31, 1977, the Copyright Office will reject an application for copyright registration. Common defects in the notice include, among others the following:
“(1) The notice lacks one or more of the necessary elements (i.e., the word ‘Copyright,’ the abbreviation ‘Copr.’, or the symbol ©, or, in the case of a sound recording, the symbol ©; the name of the copyright proprietor, or, in the case of a sound recording, the name, a recognizable abbreviation of the name, or a generally known alternative designation, of the copyright owner; and, when required, the year date of publication);
“(2) The elements of the notice are so dispersed that a necessary element is not identified as a part of the notice; in the case of a sound recording, however, if the producer is named on the label or container, and if no other name appears in conjunction with the notice, his name will be considered a part of the notice;
“(3) The notice is not in one of the positions prescribed by law;
“(4) The notice is in a foreign language;
“(5) The name in the notice is that of someone who had no authority to secure copyright in his name;
“(6) The year date in the copyright notice is later than the date of the year in which copyright was actually secured […]
“(7) A notice is permanently covered so that it cannot be seen without tearing the work apart;
“(8) A notice is illegible or so small that it cannot be read without the aid of a magnifying glass: Provided, however, That where the work itself requires magnification for its ordinary use (e.g., a microfilm, microcard or motion picture) a notice which will be readable when so magnified, will not constitute a reason for rejection of the claim;
“(9) A notice is on a detachable tag and will eventually be detached and discarded when the work is put in use;
“(10) A notice is on the wrapper or container which is not a part of the work and which will eventually be removed and discarded when the work is put to use; the notice may be on a container which is designed and can be expected to remain with the work;
“(11) The notice is restricted or limited exclusively to an uncopyrightable element, either by virtue of its position on the work, by the use of asterisks, or by other means.
“[24 FR 4956, June 18, 1959; 24 FR 6163, July 31, 1959, as amended at 37 FR 3055, Feb. 11, 1972; 46 FR 33249, June 29, 1981; 46 FR 34329, July 1, 1981; 60 FR 34168, June 30, 1995; 66 FR 34373, June 28, 2001; 66 FR 40322, Aug. 2, 2001]”
02A.1 copyright notice on art works
CFR: § 202.10 Pictorial, graphic, and sculptural works.
“The year [in the notice] may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles” (Information Circular 3)
“The visual arts category consists of pictorial, graphic, or sculptural works, including 2-dimensional and 3-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, architectural works and models.” (Fact sheet FL115)
The Fleischer Studios, one of the most significant and successful makers of cartoon movies, sued after the defendant manufactured unauthorized dolls of Betty Boop, the star of scores of Fleischer shorts. Freundlich argued that Fleischer’s copyright on her had been compromised. Freundlich had copied the character from Fleischer’s “copyrighted book of cartoons”. Freundich and co-appellants “argue that the copyright is invalid because [Fleischer] published copies of the copyrighted work without complying with” the statutes. There was no year in the notice.
“As to the notice of date required by the statute, section 18 of the Copyright Law provides that the year in which copyright was secured shall be inserted in the notice if it be a printed literary, musical or dramatic work… What was copyrighted here [was] cartoon characters displayed in bound leaf form… To say that the appellee’s article is a book and as such is a literary work would be incorrect.”
(Freundlich would be sued by Fleischer again in a follow-up case [DC,SDNY (5-4-1936), 30 USPQ 125], but this was over Freundlich not complying with the earlier verdict. This Court decided Freundlich “filed a false account of the sales of the infringing dolls.”)
(Another aspect of this case is under copyright notice: name.)
illustration: Judge Manton described Betty Boop as “a certain female character having a unique and original face, pouting in baby fashion.” Betty Boop is a trademarked character of Hearst Holdings, Inc. (for King Features Syndicate). Miss Boop appears here in a frame from a public domain film.
02A.2 copyright notice on compilations
1909 Act: §6
1947 Act: §7
1976 Act: §103
Copyright certificates were issued for illustrated catalogs published by a hardware store, which in applying for copyright stated (as recorded on the certificates): “New matter consists of new artistic drawings of merchandise, new textual and pictorial matter not previously published and new layouts and revisions”. The Appeals Court found this to be sufficient: “We find that the certificates give all notice the statute requires.” The Appeals Judge did concede, citing the trial judge, that “inasmuch as much of the material in the catalogues was admittedly not copyrightable, the notice on the cover of the catalogues was insufficient to give notice to public as to which of the myriad items in catalogues were copyrighted.” However, the requirements of the law had been satisfied, thus “the liability of appellees has been established and the only remaining issue to be tried is that of damages.”
Cases Summarized in Other Sections
|Other aspects of compilations are summarized in the section on compilations.|
For the record:
The editor of this web site was at the registration desk of the Copyright Office one time when a copyright owner submitted an application on which was stapled a supplementary page listing a slew of previous works by others incorporated into that author’s new work. These earlier were identified as being by the specific other authors, as having been previously published, and being now in the public domain. The clerk called in an experienced supervisor from elsewhere in the building who then read through the material and explained to the applicant that the Copyright Office does not need such exhaustive lists and that where the Application Form asks the applicant to “Identify any preexisting work or works that this work is based on or incorporates”, the Copyright Office prefers a summary answer such as “incorporates quotations from hundreds of […]”, or “reproduces 242 illustrations from 51 public-domain motion pictures” or “includes 13 sound clips from 11 public-domain motion pictures”. (The last three quotes are from one of my own previous registrations.)
The Copyright Registration and Renewal Information Chart and Web Site
© 2007 David P. Hayes