NOTICE OF COPYRIGHT

I. INTRODUCTION

Among the basic conditions for protection provided in the U.S. copyright law,1 perhaps the most important is the requirement for a copyright notice. To secure and maintain copyright in the United States, the copies of a work published in this country must bear a notice in the form and position specified in the statute.2 Publication of a work without the prescribed notice results in the permanent loss of copyright protection and places the work in the public domain.3 This concept of notice as a condition of copyright has been embodied in the U.S. law almost from the very beginning of Federal copyright legislation since 1802, in fact. Of the countries which today are large producers of copyrighted material, the United States is practically alone in making notice a condition of copyright protection for all types of published works. In approaching a study of this matter, it must inevitably be asked whether the notice requirement is a useless vestige, or whether it has advantages which make its continuation in one form or another desirable.

It is the purpose of this paper to present an objective analysis of the notice provisions: their history, purpose, and interpretation; comparable provisions in foreign and international law; and the arguments advanced as to the relative advantages and disadvantages of notice requirements. Factual studies of the practical utility and operation of the notice provisions are planned for a later date. It is hoped that the present legal study, supplemented by such factual studies, will provide a basis for considering the problem of copyright notice in the forthcoming revision of the copyright law.

II. LEGISLATIVE HISTORY BEFORE 1909

A. LAWS OF THE STATES BEFORE 1790

5

Of the laws passed by the several States pursuant to the 1783 resolution of the Continental Congress, only that of Pennsylvania required that a notice be placed on the copies of copyrighted works. In addition to registration of the name of the proprietor and the title of the work, the Pennsylvania law required:

That no author or proprietor of any book or pamphlet shall be entitled to the benefit of this act unless he shall insert on the back of the title page a copy of the certificate of entry obtained of the prothonotary aforesaid, which the said prothonotary is hereby required to grant without any further reward.'

117 U.S.C. (1947).

Id. §§ 10, 19, 20.

* See Section III infra.

42 STAT. 171 (1802).

18 JOURNAL OF THE UNITED STATES IN CONGRESS ASSEMBLED 256 (1783), reprinted in COPYRIGHT LAWS OF THE UNITED STATES OF AMERICA 1783-1956, p. 1 (Copyright Office, 1956) (hereinafter cited as COPYRIGHT LAWS).

LAWS OF PENNSYLVANIA c. 125 (Bradford 1784), reprinted in COPYRIGHT LAWS, pp. 10-11. 1 Id. § VI.

In three of the States there was a requirement for what might be considered an embryonic copyright notice; Massachusetts, New Hampshire, and Rhode Island 10 granted copyright protection for "all books, treatises, and other literary works, having the name of the author or authors thereof printed and published with the same ***" These laws left no doubt that the presence of the author's name was a condition for securing copyright, because the penalties for infringement could be invoked only when the work infringed was "written by any subject of the United States of America, whose name, as author, shall have been thereto prefixed

* ** 11

B. THE ORIGINAL FEDERAL COPYRIGHT ACT, 1790

Although the first Federal Copyright Act 12 provided for registration as a condition of protection, it contained no requirement for a copyright notice to be impressed on the copies of copyrighted works. It did, however, require that the author or proprietor publish a copy of the record of registration in one or more U.S. newspapers for a period of 4 weeks, within 2 months of the date of registration.13

C. FEDERAL COPYRIGHT STATUTES, 1802-1905

The act of April 29, 1802,14 was the first Federal law to require a notice in copies of copyrighted works. In addition to the newspaper notice, the author or proprietor was required by section 1 of that act to insert a copy of the record "at full length in the title page or in the page immediately following the title" in the case of a book. For maps and charts, a notice in the following form was to be impressed on the face of the work:

day of

Entered according to act of Congress, the 18.. (here insert the date when the same was deposited in the office) by A. B. of the State of (here insert the author's or proprietor's

name and the State in which he resides). Section 2 of the act of 1802 extended the scope of copyright protection to include prints, with a proviso that the author or proprietor "cause the same entry to be truly engraved on such plate, with the name of the proprietor, and printed on every such print or prints as is herein before required to be made on maps or charts."

The act of February 3, 1831,15 a general revision statute, dropped the requirement for newspaper publication of a copy of the record of registration. The provisions dealing with the notice were coordinated and simplified to some extent:

SEC. 5. And be it further enacted, That no person shall be entitled to the benefit of this act, unless he shall give information of copyright being secured, by causing to be inserted, in the several copies of each and every edition published during the term secured on the title-page, or the page immediately following, if it be a book, or, if a map, chart, musical composition, print, cut, or engraving, by causing to be impressed on the face thereof, or if a volume of maps, charts, music, or engravings, upon the title or frontispiece thereof, the following words, viz: MASS. ACTS & LAWS c. 26 (1782), reprinted in COPYRIGHT LAWS, pp. 4–5.

LAWS OF NEW HAMPSHIRE pp. 161-162 (Melcher 1789), reprinted in COPYRIGHT LAWS, p. 8. 10 RHODE ISLAND ACTS & RESOLVES pp. 6-7 (1783), reprinted in COPYRIGHT LAWS, p. 9. "This quotation, and the one immediately prece ling it, are taken from the Massachusetts statute; the equivalent provisions in the statutes of New Hampshire and Rhode Island are substantially the same. 12 1 STAT. 124 (1790).

13 Id. § 3.

14 2 STAT. 171 (1802).

15 4 STAT. 436 (1831).

"Entered according to the act of Congress, in the year clerk's office of the district court of

-

by A. B., in the (as the case may be.)

The next general revision statute, the act of July 8, 1870,16 made certain technical amendments in the notice provisions, but did not change the basic requirement:

SEC. 97. And be it further enacted, That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted, the following words, viz.: "Entered according to act of Congress, in the year by A. B., in the office of the librarian of Congress, at Washington."

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By the act of June 18, 1874,17 the author or proprietor was given the option of using as a notice "***the word 'Copyright,' together with the year the copyright was entered, and the name of the party by whom it was taken out; thus: 'Copyright, 18-, by A. B.'"' is This optional form of notice was to be used under the same conditions and in the same positions as required for the longer form.

Under the act of August 1, 1882,19 "manufacturers of designs for molded decorative articles, tiles, plaques, or articles of pottery or metal subject to copyright" were permitted to place the notice as follows:

upon the back or bottom of such articles, or in such other place upon them as it has heretofore been usual for manufacturers of such articles to employ for the placing of manufacturers, merchants, and trade marks thereon.

The last change in the notice provisions prior to 1909 was incorporated in the act of March 3, 1905,20 and applied only to books in foreign languages first published abroad. It provided that there should be inserted:

* in all copies of such book sold or distributed in the United States, on the title page or the page immediately following, a notice of the reservation of copyright in the name of the proprietor, together with the true date of first publication of such book, in the following words: "Published nineteen hundred Privilege of copyright in the United States reserved under the nineteen hundred and five, by

and

Act approved

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III. THE PRESENT LAW IN THE UNITED STATES

A. PROVISIONS OF THE PRESENT LAW

***

The notice requirements of the present law 21 are essentially the same as those incorporated in the act of March 4, 1909.22 In general, each copy of a work "published or offered for sale in the United States by authority of the copyright proprietor" must bear a copyright notice in the prescribed form and position. Ordinarily the copyright notice consists of three elements:

1. The word "Copyright," the abbreviation "Copr.", or the symbol

;

2. The name of the copyright proprietor;

3. The year in which copyright was secured, in the case of printed literary, musical, or dramatic works.

The elements of the notice are to accompany each other (e.g., John Doe 1957), and the notice is to appear in certain specified locations on the work. The required position for the notice varied with respect to different types of material:

1. Books and other printed publications.-The notice is to appear on the title page or the page immediately following. The "page immediately following" is the reverse side of the title page, where the title page is on the right side of the open book.

2. Periodicals.-There are three options with respect to the position of the notice:

a. On the title page;

b. On the first page of text; or

c. Under the title heading (which is generally understood to be the masthead.)

3. Musical compositions.-Two alternatives as to position are offered:

a. On the title page; or

b. On the first page of music.

An optional form of notice is provided for six classes of works: maps; works of art; reproductions of works of art; drawings or plastic works of a scientific or technical character; photographs; and prints or pictorial illustrations, including commercial prints and labels. The year date need not be used, and the notice may consist of the symbol with the initials, monogram, mark or symbol of the copyright owner, if the owner's name appears upon some accessible portion of the work.

While the statute requires that the notice appear upon "each copy" of a work published in the United States,23 it also contains a provision preventing the invalidation of the copyright when the notice had been omitted "by accident or mistake *** from a particular copy or copies." 24 The omission of the notice under these circumstances does not affect the copyright owner's rights with respect to willful infringers, but limits his right of action against an innocent infringer who was misled by the omission; the innocent infringer is exempted from liability for damages, and is not subject to a permanent injunction unless reimbursed for his outlay.

In addition to the basic notice sections, the statute contains several provisions dealing directly with the copyright notice. Perhaps the most important of these provides that foreign works eligible for protection under the Universal Copyright Convention shall be exempted from several copyright formalities, including the domestic manufacturing requirements and the obligation to deposit copies, if the following condition is met:

*** only if from the time of first publication all the copies of the work published with the authority of the author or other copyright proprietor shall bear the symbol accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright.25

23 17 U.S.C. § 10 (1947). A special exception is made for "books seeking ad interim protection." 24 17 U.S.C. § 21 (1947).

25 Id.§ 9(c), as amended by 68 STAT. 1030 (1954).