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prior to distribution for enjoyment by the general public. Patterson v. Century Productions, Inc., 35 USPQ 471 (CCA 2, 1936). So also mercantile rating books have been held to be published when copies are distributed to subscribers on a license basis, but without restriction as to who may obtain a license. Jeweler's Mercantile Agency v. Jeweler's Weekly Pub. Co., 155 N.Y. 241 (1898).
In the copyright laws of many foreign countries, publication is defined simply as the issue of copies of the work to the public, expressly excluding performance in public of a dramatic or musical work, the exhibition in public of an artistic work, or the delivery in public of a lecture or similar production; and this is in line with Article 4, subs. 4 of the Berne Convention (see Appendix). It might have saved the courts many perplexing problems if a similar provision had been incorporated in our own law.
Statutory Requisites : Form and Position
of the Copyright Notice
Form of the Notice (Section 18)
The notice required by section 9 of the Copyright Act is found in section 18, the first part of which reads: “That the notice of copyright required by section nine of this Act shall consist either of the word 'Copyright or the abbreviation 'Copr.,' accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication.” It necessarily follows that publication without the required notice "amounts to a dedication of the work to the public sufficient to defeat all subsequent efforts at copyright protection". Universal Film Co. v. Copperman, 212 F. 301 (1914).
It is axiomatic that “the statutory requirements as to notice must be strictly complied with”. Bentley v. Tibbals, 223 F. 247, 253 (CCA 2, 1915), citing Burrow-Giles Lith. Co. v. Sarony, 111 U.S. 53 (1884), and Bolles v. Outing Co., 175 U.S. 262 (1899). In Mifflin v. White, 190 U.S. 260 (1903), the Supreme Court remarked :
"It is incorrect to say that any form of notice is good which calls attention to the person of whom inquiry can be made and information obtained, since, the right being purely statutory, the public may justly demand that the person claiming a monopoly of publication shall pursue, in substance at least, the statutory method of securing it. In determining whether a notice of copyright is misleading we are not bound to look beyond the face of the notice and inquire whether, under the facts of the particular case, it is reasonable to suppose an intelligent person could actually have been misled." Section 18 certainly leaves little discretion in the matter. Still
the courts have permitted certain variations from the orthodox prescription without fatal results. For example:
The general rule for notices in legal proceedings is that the full name of the party shall be given for purposes of identification; but this is not essential under the copyright law when there is no possible danger of confusion or missing the reference. It has been held that the name and initial may suffice, or even without the initial where identification is clear. Burrow-Giles Lith. Co. v. Sarony, supra; Bolles v. Outing Co., supra. Nor is the omission of "Inc." from the name of a corporate body necessarily fatal. Fleischer Studios, Inc. v. Freundlich, Inc., 23 USPQ 295 (CCA 2, 1934). The year date may be abbreviated, thus '38, Bolles v. Outing Co., 77 F. 966 (CCA 2, 1897); or be in roman numerals or written out. Stern v. Remick, 175 F. 282 (1918).
"Copyrighted” often used in notices is not a material variance. But "Registered" instead of "Copyright” is insufficient. Higgins v. Keuffel, 140 U. S. 428 (1891). "Copyright 1908. Published by
was held sufficient in two cases under the old law, Hills v. Austrich, 120 F. 863 (1903), and Hills v. Hoover, 136 F. 701 (1905); but was held doubtful in Osgood v. Aloe, 83 F. 470 (1897), on the ground that the publisher is not necessarily the copyright owner. If the word "and" had been inserted before "published,” the doubt would have been removed. “Copyright 1908. Drawn by ," was held inadequate in Lydiard v. Woodman, 204 F. 921 (CCA 8, 1913).
The normal form of the notice for a published literary, dramatic or musical work is: “Copyright 19** by John Doe”; but a variance in the order of the three constituents is immaterial. Bentley v. Tibbals, supra. The inclusion of additional words or phrases, e.g., “All Rights Reserved,” adds nothing to the sum total of the rights secured, and is regarded as mere surplusage, provided of course the essential elements are present. The word "by" is unessential.
The name of a corporation or a partnership is sufficient in the notice without including the names of officers or members. Campbell v. Wireback, 269 F. 372 (CCA 4, 1920); Nat'l Cloak Co. v. Kaufman, 189 F. 215 (1911). For certain publications by individual states, copyright is sometimes taken out by the secretary of state for the benefit of the state or directly in the name
of the state, and sometimes under special contract in the name of the reporter or compiler of such material.
One author of a joint enterprise (e.g. an opera) may secure the copyright in his own name and hold it in trust for the benefit of all concerned in its production. In the absence of contract or mutual agreement, equity may determine the respective rights of the co-authors. Maurel v. Smith, 271 F. 211 (CCA 2, 1921).
Where a commercial trade name is used to denote the proprietor, it must be legalized in the state where he conducts business, for it is not to be supposed that Congress intended to permit the use of names in the notice which it would be against the law to use in the state where proceedings are brought. Haas v. Leo Feist, 234 F. 105 (1916). In this case the judge expressed the opinion that the proprietor may use a fictitious name (duly legalized of course) in the notice and register his claim in the real name, and vice versa. But it is preferable to adhere to the orthodox method and register in the name given in the notice, though there is no objection to indicating in the application for registration the other name by way of explanation; e.g., John Smith, doing business as
The use of a pen-name in the notice presents some difficulties. The very purpose of a pen-name is to disguise the identity of the author, but if the identity may be effected by means of a commercial trade name, it may likewise be effected in some cases by means of a "literary" name. For it may happen that the author is better known, or perhaps only known, to the literary world by his pen-name, and in such case the pen-name should be sufficient to meet the requirements of the law; but no reported case directly in point is found. (It seems that the demands of modern library cataloging press for a revelation of the real name of the author, and it is requested in the formal application for copyright registration.)
The notice must be complete in itself and recognizable upon inspection as a notice of copyright; and unless it “tells the tale” adequately it falls short of its primary mission, which is to prevent innocent persons who are unaware of the existence of the copyright from suffering the penalty of the law for making use of the copyrighted article. Stecher Lith. Co. v. Dunston, 233 F. 603 (1916); Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 23 USPQ 295 (CCA 2, 1934). It necessarily follows that every subsequent reproduction of a copyrighted work must, in order to continue the copyright protection, bear the statutory notice. Deward & Rich, Inc. v. Bristol Savings & Loan Corp., 50 USPQ 1 (CCA 4, 1941); Cole v. Phillips H. Lord, Inc., 50 USPQ 490 (1941). Year Date
Observe that it is only in the case of "a printed literary, musical, or dramatic work” that the year date is required in the notice (embracing Classes (a) to (e) inclusive in section 5). The word "printed” is here used in a much broader sense than printing from type set by hand or machine, and includes all modern methods of multiplying a work in copies, such as mimeographing, photography, lithography, typewriting, etc. Macmillan v. King, 223 F. 867 (1914). It was so construed even under the prior law. Roberts v. Myers, Fed. Cas. No. 11,906 (1860) and Chapman v. Ferry, 18 F. 539 (1883), wherein it was held that the "printed title" required to be deposited might be "printed with pen and ink”.
It sometimes happens that the publisher plans to put his work on the market toward the close of the calendar year and has it printed with copyright notice bearing that year date; but subsequently finds it impossible or inexpedient actually to publish the work before the New Year arrives. More often it is the other way about and the work bearing the new year date in the notice is published before the turn of the year. In neither case has the law been complied with, but the legal consequence of the variance in year date is not the same in each case.
Where the year in the notice antedates the year of actual publication, it has been held that the copyright is not thereby lost but that the beginning of the statutory term shall be reckoned from the last day of the year in which publication took place. If, for example, the year date in the notice is 1940 but the publication did not occur until sometime in January 1941, the term is to be reckoned from December 31, 1940, and not from the date of publication. This ruling was laid down by the Supreme Court in a case arising under the prior law, Callaghan v. Myers, 128 U. S. 645 (1888), and has been followed in cases arising under the present law. American Code Co. v. Bensinger, 282 F. 829 (CCA 2, 1922); Southern Music Pub. Co. v. Bibo-Lang, Inc., 26