5. Defective notice: Date of copyright

(a) In general. The omission of a year date from the notice in a "printed literary, musical, or dramatic work" 109 will invalidate the copyright. For other types of works use of the date is optional, and omission of the date will not affect the validity of the copyright.111

A year date in which the first two digits are omitted (e.g., "Copyright '94. By B. L. Snow") has been held sufficient to identify the year involved.112 As one court has pointed out, there can be little question as to which century is meant.113

Although it is far more common to print the date in Arabic numerals, use of Roman numerals in the notice is unobjectionable.114 As one court put it:

Roman numerals are a part of the language of this country. They are constantly in use upon monumental architecture of all sorts and for serial purposes upon books, and they are a part of the language as taught in the public schools, and understood by all but the most illiterate. Nor can one seriously contend that the notice required by the statute could be fulfilled only by Arabic numerals. If the letters were written out in words, it would certainly be a compliance. I regard the writing of it here in Roman numerals as more nearly a literal compliance with the statute than to write out the year in words.115

(b) Postdated notice. If the date in a notice is that of a year later than the actual year of publication, there are strong indications that a court would hold the notice invalid; 116 it would probably be regarded as an attempt to claim a period of protection longer than that allowed by law. The question was directly litigated in a case that arose over a hundred years ago; the court held that publication of a work in 1846 with an 1847 notice invalidated the copyright." This decision has generally been accepted as representing the law on the point, although there may be situations, especially where publication occurred very near the end of the year, in which the equities might lead a court to uphold the validity of a notice with the date of the next year." (c) Antedated notice.-An antedated notice (one that contains a date earlier than that of actual publication) has been held valid, since the mistake is in favor of the public; 120 the loss, if any, is upon the

109 17 U.S.C. § 19 (1947).

110 Wildman v. New York Times Co., 42 F. Supp. 412 (S.D.N.Y. 1941).

118

119

11 Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 73 F.2d 276 (2d Cir. 1934); cert. denied, 294 U.S. 717 (1935).

112 Snow v. Mast, 65 Fed. 995 (C.C.S.D. Ohio 1895).

113 Bolles v. Outing Co., 77 Fed. 966, 969 (2d Cir. 1897), aff'd 175 U.S. 262 (1899).

114 Stern v. Jerome H. Remick & Co., 175 Fed. 282 (C.C.S.D.N.Y. 1910). In several cases the validity of a copyright has been upheld without reference to the fact that the notice was dated in Roman numerals. See, e.g., Ted Browne Music Co. v. Fowler, 290 Fed. 751 (2d Cir. 1923); M. Witmark & Sons v. Pastime Amusement Co., 298 Fed. 470 (E.D.S.C. 1924), aff'd, 2 F.2d 1020 (4th Cir. 1924); Buck v. Russo, 25 F. Supp. 317 (D. Mass. 1938); Shapiro, Bernstein & Co. v. Jerry Vogel Co., 161 F. 2d 406 (2d Cir. 1946), cert. denied, 331 U.S. 820 (1947).

11 Stern v. Jerome H. Remick & Co., supra note 114, at 283.

116 See, e.g., Baker v. Taylor, 2 Fed. Cas. 478, No. 782 (C.C.S.D.N.Y. 1848); American Code Co. v. Bensinger, 282 Fed. 829 (2d Cir. 1922); Heim v. Universal Pictures Co., 154 F. 2d 480 (2d Cir. 1946). Basevi v. Edward O'Toole Co., 26 F. Supp. 41 (S.D.N.Y. 1939); Leigh v. Gerber, 86 F. Supp. 320 (S.D.N.Y. 1949). 117 Baker v. Taylor, supra note 116.

119 See, e.g., West Publishing Co. v. Edward Thompson Co., 169 Fed. 833, 879 (C.C.E.D.N.Y. 1909); Shapiro, Bernstein & Co. v. Jerry Vogel Co., 161 F. 2d 406 (2d Cir. 1946) cert. denied, 331 U.S. 820 (1947); Basevi v. Edward O'Toole Co., 26 F. Supp. 41 (S.D. N.Y. 1939); Harris v. Miller, 50 U.S.P.Q. 306 (S.D.N.Y. 1941); National Comics Publications, Inc. v. Fawcett Publications, Inc., 93 F. Supp. 349 (S.D.N.Y. 1950), rer'd on other grounds, 191 F. 2d 594 (2d Cir. 1951); Wrench v. Universal Pictures Co., 104 F. Supp. 374 (S.D. N.Y. 1952); 37 C.F.R. § 202.1(b) (8) (1956). But see Schumacher v. Wogram, 35 Fed. 210 (O.Č.S.D.N.Y.

1888).

In two recent cases, defendants claimed that the plaintiff's copyrights were invalid because the applications for copyright registration stated dates of publication a few months later than the actual dates on which the works were published. The courts in both cases declined to accept this defense, on the ground that there had been no fraud or serious prejudice to the public. Although no question as to the validity of the notice was involved in these cases, they may reflect the more liberal attitude of the courts in this area. Advisers, Inc. v. Wiesen-Hart, Inc., 238 F. 2d 706 (6th Cir. 1956), cert. denied, 353 U.S. 949 (1957); Ziegelheim v. Flohr, 119 F. Supp. 324 (E.D.N.Y. 1954).

19 Callaghan v. Myers, 128 U.S. 617 (1888); American Code Co. v. Bensinger, 282 Fed. 829 (2d Cir. 1922); Southern Music Pub. Co. v. Bibo-Lang, Inc., 10 F. Supp. 972 (S.D.N.Y. 1935); Leigh v. Gerber, 86 F. Supp. 320 (8.D.N.Y. 1949).

copyright owner, whose term of protection is computed from the earlier date. In one case the defendant argued that an antedated notice should be held invalid since it would permit the proprietor to sue under the statute for alleged infringement before the copyright actually came into existence. The court, in rejecting this argument, pointed out that the use of an antedated notice would not make statutory protection retroactive, but would merely shorten the term.121 (d) New editions. Whenever a copyrighted work is reprinted without change, a notice containing the original date when copyright was secured should be affixed to it; use of a later date would result in a postdated notice which would invalidate the copyright.122 If an existing work is revised and republished with "new matter," it becomes a "new work" and as such is entitled to separate protection.123 There are decisions holding that the only date required in the notice for a "new work" is the year of publication of that work. 124 However, it is not clear whether these decisions would apply if the "new matter" were incidental to, or clearly separable from, the earlier material.

An interesting question of statutory interpretation arises with respect to the date to appear in the notice on the published version of a work that has earlier been copyrighted by registration in unpublished form. The statute requires the notice to include the year in which "copyright was secured by publication."125 When copyright is secured by registation rather than by publication, should the notice contain the year in which copyright was secured, or the later year in which the work was published for the first time? This is a problem of great importance, especially to music publishers; it is often solved when the published version contains a new arrangement or other copyrightable new matter, thus permitting use of the later date. When the published version is the same as the unpublished version, however, the weight of opinion appears to support the view that the year copyright was secured by registration should be used in the notice."

126

One court's interpretation of the value of the notice is found in a case dealing with these questions.127 A composition registered in unpublished form in 1911 was published with new lyrics in 1912, and with a notice reading:

Copyright MCMXI by Ernie Burnett
Copyright transferred MCMXII to Theron
C. Bennett, Denver, Colo.

121 Basevi v. Edward O'Toole Co., 26 F. Supp. 41 (S.D.N.Y. 1939).

122 Lawrence v. Dana, 15 Fed. Cas. 26, 52 No. 8136 (C.C.D. Mass. 1869); National Comics Publications, Inc. v. Fawcett Publications, Inc., 93 F. Supp. 349 (S.D.N.Y. 1950), rev'd on other grounds, 191 F. 2d 594 (2d Cir. 1951).

123 17 U.S.C. § 7 (1947).

124 Lawrence v. Dana, 15 Fed. Cas. 26, 52 No. 8136 (C.C.D. Mass. 1869); Harris v. Miller, 50 U.S.P.Q. 306 (S.D.N.Y. 1941); National Comics Publications, Inc. v. Fawcett Publications, Inc., 93 F. Supp. 349 (S.D.N.Y. 1950), rev'd on other grounds, 191 F. 2d 594 (2d Cir. 1951). In Wrench v. Universal Pictures Co., 104 F. Supp. 374 (S.D.N.Y. 1952), the court upheld the validity of copyright in the contents of a book published with a 1948 notice, although substantial portions of the work had been copyrighted upon publication in periodicals in 1944 and 1945. The opinion states:

Since the only copyright date necessary to protect the property is 1948, the insertion of "1945" in the copyright notice in the book was superfluous. Although the listing of prior copyrights is a practice of publishers "there is nothing in any act of Congress to show that each successive edition must specify the date of the original copyright." [citation omitted]

125 17 U.S.C. § 19 (1947).

128 See DE WOLF, AN OUTLINE OF COPYRIGHT LAW 57 (1925); HOWELL, THE COPY. RIGHT LAW 105, 107 (3d ed. 1952); 2 LADAS, THE INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY 763 (1938); NICHOLSON, A MANUAL OF AMERICAN COPYRIGHT PRACTICE 129, 175 (2d ed. 1956); SHAFTER, MUSICAL COPYRIGHT 94 (2d ed. 1939); Tannenbaum, Practical Problems in Copyright, in SEVEN COPYRIGHT PROBLEMS ANALYZED 7, 11 (1952); WARNER, RADIO AND TELEVISION RIGHTS § 72 (1953); WEIL, AMERICAN COPYRIGHT LAW 296, 306 (1917). This view has also been adopted by the Copyright Office in its regulations; 37 C.F.R. § 202.2(b) (6) (1956).

127 Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F. 2d 406 (2d Cir. 1946), cert. denied, 331 U.S 820 (1947).

The court acknowledged that there had not been literal compliance with the statutory requirements since, strictly speaking, there was no notice covering the 1912 version. It held the notice valid, however, stating:

Nevertheless it is apparent that he intended to copyright the 1912 version, for that was the song he was publishing. *** The published notice was sufficient to inform a prospective copyist that Bennett was trying to get copyright protection for the published song to which he attached it. Had such a copyist looked up Burnett's copyright, he would have found that it protected an "unpublished song" with different words, but that ought not to have satisfied him that Norton's words were in the public domain; on the contrary, he would then have the more reason to believe that Bennett was trying to protect the song as published, and he should be chargeable with knowledge of such facts as reasonable inquiry would have disclosed. Such an inquiry addressed to Bennett would have disclosed that he was the proprietor of both Norton's words and Burnett's music and intended to obtain protection for the song as published.128

6. Defective notice: Position

(a) Title page. For a book or other printed publication, the copyright law requires that the notice be placed on the "title page or the page immediately following."129 Most of the decisions concerning the position of the notice involve the question of what is a title page. In several cases where the notice was applied to the last page of a publication, the courts have consistently held the notice invalid.130

A more difficult problem has been to determine whether a given page was a "title page" within the meaning of the law. An early case 131 involved a periodical 132 of 106 pages with a notice on page 51. The title of the work appeared at the top of every page, but page 19, the first page containing ordinary reading matter, also bore the title of the publication, the volume and issue number, and the month and year of issue. The court held this to be the "title page" and dismissed the action because the notice was not correctly placed.

133

As indicated by this decision, the title page does not necessarily have to be the first page. On the basis of this concept, the courts have upheld title pages which were removed from the front of the publication, if they were preceded by advertising matter.1 But not all notices may be safely removed from the front of the publication. If, for example, a loose-leaf catalog held together by a paper backing sheet contains, on the backing sheet, all the information as to its contents, manufacturer, manufacturer's address, and telephone number, it has been held improper to place a notice on the fifth sheet of the catalog itself.134

Determination of what is the title page is frequently a question of fact. In one case 135 the paper cover of a book bore one title and another title appeared on page 3. The only notice on the work appeared on page 3, but in his complaint the plaintiff identified the work under the title appearing on the cover. The trial court dismissed the action on the ground of misplaced notice, despite plaintiff's attempts to show that page 3 was actually the title page; the court of appeals

128 Id. at 409.

129 17 U.S.C. § 20 (1947).

130 United Thrift Plan, Inc. v. National Thrift Plan, Inc., 34 F. 2d 300 (E.D.N.Y. 1929); W. S. Bessett Inc. v. Albert S. Germain Co., 18 F. Supp. 249 (D. Mass. 1937); J. A. Richards, Inc. v. N.Y. Post, Inc., 23 F. Supp. 619 (S.D.N.Y. 1938).

Freeman v. The Trade Register, Inc., 173 Fed. 419 (C.C.W.D. Wash. 1909).

The law then in effect treated periodicals as "books" for purposes of specifying the position of the notice; see note 16 supra, and text thereto.

18 American Travel and Hotel Directory Co. v. Gehring Publishing Co., 4 F. 2d 415 (8.D.N.Y. 1925). 1 Siewek Tool Co. v. Morton, 128 F. Supp. 71 (E.D. Mich. 1954).

Booth v. Haggard, 184 F. 2d 470 (8th Off. 1950).

upheld the decision as supported by substantial evidence and in accord with the averments of the complaint. The reverse of this situation arose in a later case,136 in which the court found that the cover page was not the title page, stating:

** it cannot be regarded as a page in any sense, any more than the buckram covering or binding of a law book can be so regarded. It is not part of the published matter and has no connection with it other than that of a cover to protect the printed matter of the text.137

If a copyright notice appears on the outside cover of a periodical, one court has questioned whether it can be said to apply to the contents of the periodical.138 But in a later case in the same district,139 the court held that, where a cover contained copyrightable material and indicated the particular feature emphasized in that issue, the cover could be regarded as a "copyrightable component" part of the magazine. Although both the cover and the magazine bore notice in that case, it would appear that, where there is some relation between the cover and the contents of a magazine, the cover would be regarded as a "title page" and a notice on the cover would extend to the entire magazine.

(b) Detachable tags, etc.-In recent years, questions have arisen with increasing frequency concerning the validity of a notice for an article, affixed to a temporary tag, label, or container which is intended to be removed and discarded when the article is put in use. This problem arose in a recently litigated case 140 and, while the issue was not determinative, the opinion strongly indicates that such a notice is invalid. The court had this to say:

The printed notice of copyright on the two tags attached to the Trifari pins did not meet the statutory requirement that the notice be "on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted." 17 U.S.C. § 19. Thus they could serve plaintiff only by showing that defendants had actual notice of the copyright of an improperly marked article. Defendants' officers state that no notice was on the pin that they copied and it is not unlikely that during handling in a retail store, before the sale, these small tags might have been removed.141

(c) Repetitive designs. Another notice problem is presented by copyrightable designs which are repeated on a continuous sheet or roll of paper, fabric, and the like. In its 1914 decision in Louis DeJonge & Co. v. Breuker & Kessler Co.,142 the Supreme Court held that copyright in a painting which had been reproduced on wrapping paper was lost when twelve repetitions of the painting appeared on a sheet containing a single notice. This concept was upheld in recent years where a copyrighted representation of a chrysanthemum was applied repetitively to dress goods.143

The problem of repetitive designs becomes still more difficult for certain types of works; even if the notice for a wallpaper design, for example, is affixed to the selvedge often enough to satisfy the courts, there is a question as to the effect on copyright protection when the paper is applied to a wall and the selvedge is covered permanently.

188 Fawcett Publications, Inc. v. Elliot Publishing Co., 54 U.S.P.Q. 367 (S.D.N.Y. 1942).

139 Conde Nast Publications, Inc. v. Vogue School of Fashion Modeling, Inc., 105 F. Supp. 325 (S.D.N.Y. 1952).

140 Trifari, Krussman & Fishel, Inc. v. B. Steinberg-Kaslo Co., 144 F. Supp. 577 (S.D.N.Y. 1956). 141 Id. at 582.

143 235 U.S. 33 (1914).

148 Verney Corp. v. Rose Fabric Converters Corp., 87 F. Supp. 802 (S.D.N.Y, 1949).

No cases shed sufficient light on the problem of repetitive notices to determine how often the notice must be applied, or what happens when the notice is obliterated in actual use. If the doctrine of the DeJonge case is carried to its logical conclusion, it would appear difficult to protect repetitive designs without seriously detracting from the esthetic appearance of the product.

IV. THE COPYRIGHT NOTICE IN INTERNATIONAL TREATIES AND CONVENTIONS

A. WESTERN HEMISPHERE COPYRIGHT CONVENTIONS

In the Western Hemisphere today the two principal multilateral copyright conventions in effect are those signed in Bueonos Aires in 1910 and in Washington in 1946;144 the United States is a member of the Buenos Aires Convention. The Washington Convention, as between adherents, supersedes the version signed at Buenos Aires, and to this extent is in effect a revision of the earlier treaty. The Buenos Aires Convention, in article 3, provides:

The acknowledgement of a copyright obtained in one state, in conformity with its laws, shall produce its effects of full right, in all the other states, without the necessity of complying with any other formality, provided always there shall appear in the work a statement that indicates the reservation of the property right.

The sole condition for obtaining protection in another state which is a party to this convention is the inclusion of some sort of a reservation of rights, and in practice this reservation appears usually to take the form of either "Derechos reservados," "All rights reserved," or "All rights reserved under Pan American Copyright Convention." While the question has not been litigated, it also seems probable that any of the forms of copyright notice specified by the United States law should constitute a "reservation of the property right" which would be upheld in the other member countries.

The Washington Convention of 1946 contains, in Article X, the following provision concerning notice:

In order to facilitate the utilization of literary, scientific, and artisitic works, the Contracting States agree to encourage the use on such works of the expression "Copyright" or its abbreviation "Copr." or the letter "C" enclosed with a circle, followed by the year in which the protection begins, the name and address of the copyright owner, and the place of origin of the work. This information should appear on the reverse of the title page in the case of a written work, or in some accessible place according to the nature of the work, such as the margin, on the back, permanent base, pedestial, or the material on which the work is mounted. However, a notice of copyright in this or any other form shall not be interpreted as a condition of protection of the work under the provisions of the present Convention.

The wording of this article was proposed by the United States Delegation in place of the proviso of article 3 of the Buenos Aires Convention, because that delegation believed "that notice is a useful informational

144 The Mexico City Convention of 1902 and the Havana Convention of 1928 have for all practical purposes been superseded. El Salvador is the only country party to the 1902 convention that has not ratified a later treaty, and Panama is in the same position as regards the 1928 Convention.

The following countries are adherents to the Buenos Aires Convention of 1910: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Nicaragua, Panama, Paraguay, Peru, United States of America, and Uruguay.

The following countries are adherents to the Washington Convention of 1946: Argentina, Bolovia, Brazil, Chile, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, and Paraguay.