Other provisions of the statute with specific bearing on the copyright notice include: provisions concerning the notice in works covered by, or eligible for, ad interim copyright; 26 a provision that one notice in each volume or in each number of a newspaper or periodical shall suffice; 27 and a provision that the name of the assignee of a copyright may be substituted in the notice after the assignment has been recorded.28 B. LEGISLATIVE HISTORY OF THE PRESENT PROVISIONS In order to appreciate the importance of the change worked by the 1909 notice provisions it is necessary to realize that, before 1909, copyright was secured by the filing of a title in the Copyright Office, and the deposit of copies on or before the date of publication. The right to secure copyright was lost if for any reason these requirements were not met. It was to mitigate the possibility of unintentional forfeiture that section 9 (now section 10) of the act of 1909 was drafted, permitting copyright to be secured by the very act of publishing a work with the copyright notice affixed to the copies. In the words of the final committee report accompanying the bill which was enacted in 1909: Under the existing law the filing of title and deposit of copies on or before the date of first publication are conditions precedent, and any failure to comply with them works a forfeiture of the copyright. It is proposed under this bill to so change this as to have the copyright effective upon the publication with notice, and the other formalities become conditions subsequent.29 The legislative history of the act of 1909 contains little of significance concerning the philosophy underlying the notice provisions. The basic elements of the present notice requirement were already present in H.R. 19853,30 which was introduced by Representative Currier on May 31, 1906, and which was the first of the series of bills which led to the 1909 statute; the changes in the provisions which were finally enacted, and the relatively few comments on them during the hearings,31 dealt largely with matters of detail. With respect to the copyright notice, all those who testified at the hearings apparently assumed that a notice should be required. The discussions during the hearings centered primarily around two relatively minor questions: whether copies should be required to bear the notice when published outside the United States, and whether the notice requirements should be further liberalized with regard to graphic and artistic works. In connection with both questions, there was also some discussion of the provision dealing with accidental omission of the notice, and the potential effect of this provision upon users and the public. As originally drafted, the bill did not require that the copyright notice for any type of work contain a date. The reason the bill as H.R. REP. NO. 2222, 60th Cong., 2d Sess. 10 (1909). H.R. 19853, 59th Cong., 1st Sess. (1906). "Hearings before Committees on Patents on S. 6330 and H.R. 19853, 59th Cong., 1st Sess. (June 1906); Hearings before Committees on Patents on S. 6330 and H.R. 19853, 59th Cong., 1st Sess. (Dec. 1906); Hearings before Committees on Patents on Pending Bills, 60th Cong., 1st Sess. (1908). 56579-60 finally enacted required the date for literary, dramatic, and musical works is best summarized in the final committee report: No date was required, not even the year in which the copyright was secured, in case of a book or anything else. Serious objections were made to the elimination of the date. It was said that the public would have no means of ascertaining whether the copyright had expired and that the public was entitled to that knowledge. Your committee felt that in case of books or printed publications, including dramatic and musical works, the year in which the copyright began should be stated in the notice, and we have provided for the insertion of the date in the notice on all such works. Your committee did not feel that it was necessary to have the date printed on works of art, etc. Artists have always objected to the copyright notice which they were obliged to put on the pictures, because it was considered a disfigurement, and we have retained substantially the provision of the original bill regarding the notice in such cases.32 The committee report also makes clear why the provision dealing with accidental omission of notice was added to the statute: Section 20 makes a material change in existing law. Under existing law notice of copyright must be printed in every copy of every edition of a book. If any copy of any edition published by authority of the proprietor of the copyright by accident or mistake gets out without the copyright notice, the whole copyright is lost. More copyrights have been lost under this drastic provision of the law than in any other way. Your committee believe that an unintentional failure to comply with this requirement in the case of a single book ought not to have attached to it the penalty involved in the forfeiture of the copyright, ***33 No changes of any real consequence were made as a result of the hearings preceding enactment of the statute,34 but from a reading of the hearings there emerges a general impression that, in the minds of most of the persons interested in copyright legislation in 1909, notice was both necessary and desirable. Two examples of testimony by publishers will serve to point up this feeling. Charles Porterfield, representing a large law book publisher, had this to say concerning the notice requirement: As far as the notice of copyright is concerned, it seems to be very important that every copyrighted thing should bear on its face some indication that it is protected, and for how long it is protected. The interests of the public certainly require that. It is impossible for everybody who wishes any information in that regard to come down here to Washington and overhaul the Copyright Office. The country is too large for that sort of thing. If each copyrighted thing has a notice on it which shows that it is copyrighted for a certain number of years, that is prima facie evidence that it has that protection. If anyone wishes to make further investigation, he then can consult the Copyright Office and see if it has in fact been entered.35 Likewise, George W. Ogilvie, a Chicago publisher, made the following forceful statement: I think every publisher in the United States who desires to be fair to his fellow publishers will agree with me that the only way that a man can tell whether a book is copyrighted or not is to have it contain a notice. If not, leave it out of all of them. Leave it out of every book published. Do not put any notice in at all, and make it [sic] go to the Copyright Office to get the information; but do not leave him "up in the air," as he will be left, some books with a notice and others without. How does he know? If a book is published under various titles and not filed in the Copyright Office, he cannot find out, and if he cannot find out and he takes extracts from the books that are not published it might bankrupt him. It will not bankrupt me, because I do not intend to publish any more books. [Laughter.] 36 32 H.R. REP. NO. 2222, 60th Cong., 24 Sess. 13 (1909). 23 Ibid. 34 See note 31, supra. 35 Hearings (Dec. 1906), supra note 31, at 135. 36 Hearings (1908), supra note 31, at 71. Only two changes in the basic notice provisions have been made since 1909. The first, a technical amendment made at the time of the codification of the copyright law in 1947, simply involved a change in language.37 The second, which was a part of the legislation enacted in 1954 to permit U.S. adherence to the Universal Copyright Convention, allows use of the symbol instead of "Copyright" or "Copr." in the notice for all types of works; 38 before September 16, 1955, the effective date of the amendment, use of the symbol was permissible only for pictorial, graphic, and sculptural works. C. JUDICIAL INTERPRETATION OF THE NOTICE PROVISIONS 1. In general The courts have had many opportunities to interpret and apply the notice provisions of the copyright law. While it is difficult to generalize from a large body of decisions based on differing fact situations, it seems clear that, in their construction of the notice requirements, the courts have tended to adopt one or the other of two opposing philosophies. The earlier of the two philosophies finds part of its origin in the 1834 Supreme Court decision in Wheaton v. Peters.39 This case, upon which much of the American theory of copyright protection is based, dealt with the question of whether a valid copyright could be obtained if all of the statutory formalities had not been met. The court held, in effect, that copyright protection is dependent upon the act of Congress under which it originates, and that Congress may withhold protection or attach mandatory conditions upon which protection depends. This basic proposition was stated by the court as follows: No one can deny that when the legislature are about to vest an exclusive right in an author or an inventor, they have the power to prescribe the conditions on which such right shall be enjoyed; and that no one can avail himself of such right who does not substantially comply with the requisitions of the law.40 On the specific question of formalities, Wheaton v. Peters laid down this principle: All *** this is not a technical grant of precedent and subsequent conditions. the conditions are important, the law requires them to be performed, and, consequently, their performance is essential to a perfect title. On the performance of a part of them the right vests, and this was essential to its protection under the statute; but other acts are to be done, unless Congress have legislated in vain, to render the right perfect.41 The view that the notice requirements must be strictly observed has been followed in a number of cases 42 and may still influence courts today. In recent years, however, the decisions appear to show an increasingly liberal attitude toward the copyright notice; there is a growing body of decisions based on the philosophy that substantial 61 STAT. 668 (1947). 68 STAT. 1030 (1954). 33 U.S. (8 Pet.) 591 (1834). 40 Id. at 663-664. 41 Id. at 665. Mifflin v. R. H. White Co., 190 U.S. 260 (1903); Mifflin v. Dutton, 190 U.S. 265 (1903); Louis Dejonge & Co. v. Breuker & Kessler Co., 235 U.S. 33 (1914); Public Ledger Co. v. Post Printing & Publishing Co., 294 Fed. 430 (8th Cir. 1923); Advertisers Exchange, Inc. v. Anderson, 144 F. 2d 907 (8th Cir. 1944); Booth v. Haggard, 184 F. 2d 470 (8th Cir. 1950); Tompkins v. Rankin, 24 Fed. Cas. 39, No. 14090 (C.C.D. Mass 1876); Jackson v. Walkie, 29 Fed. 15 (C.C.N.D. Ill. 1886); Osgood v. A. S. Aloe Instrument Co., 83 Fed. 470 (C.C.E.D. Mo. 1897); Record & Guide Co. v. Bromley, 175 Fed. 156 (C.C.E.D. Pa. 1909); Haas v. Leo Feist, Inc., 234 Fed. 105 (S.D.N.Y. 1916); Smith v. Bartlett, 18 F. Supp. 35 (D. Me. 1937); Group Publishers, Inc. v. Winchell, 86 F. Supp. 573 (S.D.N.Y. 1949); Metro Associated Services, Inc. v. Webster City Graphic Inc., 117 F. Supp. 224 (N.D. Iowa 1953). 43 44 compliance with the statute is sufficient. Some of the origins of this position may be found in the 1883 decision of the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony, where the Court stated: *** it is enough to say that the object of the statute is to give notice of the copyright to the public by placing upon each copy, in some visible shape, the name of the author, the existence of the claim of exclusive right, and the date at which this right was obtained.45 Since the cases on copyright notice necessarily turn on special facts and technical statutory provisions, the significance of individual decisions on this subject is relatively minor. Nevertheless, a summary review of the interpretation courts have given to the statutory notice provisions on various issues may not only help to reveal come of the strengths and weaknesses of the present law, but also to point the way to considered legislative solutions to some of the problems that now exist. 2. Defective notice: In general (a) Absence of notice.-Regardless of a court's philosophical attitude toward the notice requirements, it would have no alternative but to hold a copyright invalid in an ordinary case of publication of a work in this country without notice. For example, the Supreme Court held that Holmes' "Autocrat of the Breakfast Table" was in the public domain because its serial publication in an uncopyrighted periodical (i.e., bearing no notice) preceded its publication in book form.47 (b) Accidental omission of notice.-The statute provides that accidental omission of the notice "from a particular copy or copies" does not invalidate the copyright, but merely prevents recovery of damages against an innocent infringer who was misled by the absence of the notice.48 In general, the courts have held that the provision is not applicable where the required notice is omitted from all the copies,49 or where the mistake is one of law.50 It has been held to apply only where the notice was omitted "from one or perhaps a very few copies."51 In one of the few cases where the provision was held applicable,52 it appeared that defendant had innocently copied plaintiff's work 43 Callaghan v. Myers, 128 U.S. 617 (1888); Bolles v. Outing Co., 77 Fed. 966 (2d Cir. 1897) aff'd, 175 U.S. 262 (1899); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 73 F. 2d 276 (2d Cir. 1934), cert. denied, 294 U.S. 717 (1935); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F. 2d 406 (2d Cir. 1946), cert. denied, 331 U.S. 820 (1947); National Comics Publications, Inc. v. Fawcett Publications, Inc., 191 F. 2d 594 (2d Cir. 1951); Scribner v. Henry G. Allen Co., 49 Fed. 854 (C.C.S.D.N.Y. 1892). Werckmeister v. Springer Lithographing Co., 63 Fed. 808 (C.C.S.D.N.Y. 1894); Snow v. Mast, 65 Fed. 995 (C.C.S.D. Ohio 1895); Harper & Bros. v. M.A. Donohue & Co., 144 Fed. 491 (C.C.D.N.D. Ill. 1905); American Travel & Hotel Directory Co. v. Gehring Publishing Co., 4 F. 2d 415 (S.D.N.Y. 1925); Hale Nass Corp. v. Brechner 22 COPYRIGHT OFFICE BULLETIN 137 (S.D.N.Y. 1935;) Gogniat v. Universal Pictures Corp., 35 U.S.P.Q. 117 (S.D.N.Y. 1937); Allen v. Walt Disney Productions, Ltd., 41 F. Supp. 134 (S.D.N.Y. 1941); Block v. Plaut, 87 F. Supp. 49 (N.D. Ill. 1949); Powell v. Stransky, 98 F. Supp. 434 (D.S.D. 1951); Harry Alter Co. v. Graves Refrigeration, Inc., 101 F. Supp. 703 (N.D. Ga. 1951); Ziegelheim v. Flohr, 119 F. Supp. 324 (E.D.N.Y, 1954). 44 111 U.S. 53 (1884). 45 Id. at 55. 46 Higgins v. Keuffel, 140 U.S. 428 (1891); Holmes v. Hurst, 174 U.S. 82 (1899); Pierce & Bushnell Manuf'g Co. v. Werckmeister, 72 Fed. 54 (1st Cir. 1896); Sieff v. Continental Auto Supply, Inc., 39 F. Supp. 683 (D. Minn. 1941): Superfine Products, Inc. v. Denny, 54 F. Supp. 148 (N.D. Ga. 1943). In Hoyt v. Daily Mirror, Inc., 31 F. Supp. 89 (S.D.N.Y. 1939), the court dismissed the complaint on the ground that the copies of a published photograph deposited in the Copyright Office lacked the copyright notice and the registration was therefore invalid. The opinion implies that the notice may also have been omitted from the copies which had been distributed, and that this factor may have influenced the decision. 47 Holmes v. Hurst, 174 U.S. 82 (1899). 49 17 U.S.C. § 21 (1947). 49 United Thrift Plan, Inc. v. National Thrift Plan, Inc., 34 F. 2d 300 (E.D.N.Y. 1929); Goes Lithographing Co. v. Apt Lithographic Co., 14 F. Supp. 620 (S.D.N.Ý. 1936); J. A. Richards, Inc. v. New York Post, Inc., 23 F. Supp. 619 (S.D.N.Y. 1938); Deward & Rich, Inc. v. Bristol Savings & Loan Corp., 34 F. Supp. 345 (W.D. Va. 1940), aff'd, 120 F. 2d 537 (4th Cir. 1941). 50 Wildman v. New York Times Co., 42 F. Supp. 412 (S.D.N.Y. 1941). 51 Krafft v. Cohen, 117 F. 2d 579, 581 (3d Cir. 1941). 52 Strauss v. Penn Printing & Publishing Co., 220 Fed. 997 (E.D. Pa. 1915); accord, Wilkes-Barre Record Co. v. Standard Advertising Co., 63 F. 2d 99 (3d Cir. 1933). from a newspaper; a notice had appeared on the mat but, due to injury to the matrix, the symbol had become unrecognizable. The court did not discuss the "particular copy or copies" provision; but it held that, since there was an omission of the prescribed notice, plaintiff was not entitled to recovery of damages. Nevertheless, the court awarded the plaintiff profits, on the theory that the provision specifically excluded the recovery of damages only. Where the infringer had actual notice of the copyright, the fact that some or all of the particular copies to which he had access lacked the notice will not absolve him from liability.53 And where the infringer, though wholly innocent, was misled by something other than the omission of the notice, he has been held fully liable.54 (c) Illegible notice.-Where a notice is so small that it cannot be seen with the naked eye, or is so illegible that it fails to convey the claim to copyright, the courts have generally held the copyright invalid.55 On the other hand, certain courts, in decisions involving microscopic or illegible notices, have considered the copyright valid, but denied damages because the defendant was an innocent infringer.5 Still other courts have merely dismissed the action without discussion of the validity of the copyright. 57 56 The fact that the notice is small does not necessarily afford protection to a would-be infringer. If the notice can be discovered upon a careful inspection of the work, its relative inconspicuousness will not necessarily prevent recovery.58 (d) "Dispersed" notice.-In prescribing the form of the copyright notice, the statute provides that the word or symbol of claim shall be "accompanied by" the name of the copyright owner and (where required) the year date of publication.59 It is rather frequently found that, although a work contains each of the required elements of the notice, they do not all appear together. In such cases it may be difficult to determine whether the dispersed element (or elements) can be considered a part of the copyright notice. In an early case involving this question 60 the year date did not accompany the other elements of the notice, but a date appeared at the bottom of the same page, where the date of publication customarily was located. The court strictly construed the notice provisions, and dismissed the action because of a defective notice. A somewhat later case 61 involved the notice for a periodical which lacked the date; immediately below the notice, separated by a line, appeared the volume and issue numbers and the issue date. The court held that the issue date could not be considered a part of the notice, and that the copyright was therefore invalid. In recent years, in line with their increasingly liberal attitude. toward the notice requirements, the courts appear to have become more generous in their consideration of dispersed notices. One Gerlach-Barklow Co. v. Morris & Bendieu, Inc., 23 F. 2d 159 (2d Cir. 1927); Schellberg v. Empringham, 36 F. 2d 991 (S.D.N.Y. 1929). Krafft v. Cohen, 44 U.S.P.Q. 678 (E.D. Pa. 1940), rev'd on other grounds, 117 F.2d 579 (3d Cir. 1941). Smith v. Bartlett, 18 F. Supp. 35 (D. Me. 1937); Deward & Rich, Inc. v. Bristol Savings & Loan Corp., 34 F. Supp. 345 (W.D. Va. 1940), aff'd, 120 F. 2d 537 (4th Cir. 1941); Advertising Exchange, Inc. v. Witten Hardware Co., 50 F. Supp. 137 (W.D. Mo. 1942). Alfred Decker Cohn Co. v. Etchison Hat Co., 225 Fed. 135 (E.D. Va, 1915); Strauss v. Penn Printing & Publishing Co., 220 Fed. 977 (E.D. Pa. 1915). Smith v. Wilkinson, 19 F. Supp. 841 (D.N.H. 1937), aff'd, 97 F. 2d 506 (1st Cir. 1938). #17 U.S.O. 19 (1047). Tompkins v. Rankin, 24 Fed. Cas. 39, No. 14090 (O.C.D. Mass. 1876). |