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USPQ 321 (1935). It is important to bear this ruling in mind in connection with renewals, lest the application arrive too late for action.
Contrariwise, if the year date in the notice is 1941 and the publication took place sometime in December, 1940, the variance is deemed fatal to the copyright. American Code Co. v. Bensinger, supra, citing Baker v. Taylor, 2 Fed. Cas. 478 (1848). Even where the year date need not be included in the copyright notice (Classes (f) to (k) inclusive—maps, prints, photographs, etc.), it has been said that "if the copyright owner elects to give the date of the copyright (publication), the date must certainly not be later than the actual date.” Basevi v. O'Toole Co., Inc., 40 USPQ 334 (1939).
The reason advanced by the courts for this distinction is that, in the former case the error is in favor of the public interest by shortening the term of copyright by so much, the proprietor claiming less than his due; whereas, in the latter case the error is against the public interest, being tantamount to claiming a year longer than the law allows. The Copyright Office will issue certificates of registration in the former case, but not in the latter. The Office, however, attempts to guard publishers against these pitfalls by sending out warning notices well before the close of the calendar year. New Editions
In the case of new editions containing new matter, it has been held that only the year date of publication of the new edition need appear in the copyright notice. West Pub. Co. v. Thompson, 176 F. 833 (CCA 2, 1910), citing Lawrence v. Dana, Fed. Cas. No. 8,136 (1869). This ruling harmonizes with the provision in section 6 that "works republished with new matter” are to be regarded as "new works" for the purposes of the Act. Harris v. Miller, 50 USPQ 306 (1941).
In such cases "the propriety of separate and independent copyright always depends upon the presence or absence of original work”. Hough, D.J., in Edmonds v. Stern, 248 F. 897 (1918). There is no precise yardstick of measurement, but generally speaking it is not the quantity of original work but its quality and importance that is to be considered, and this of course varies with the nature of the work. A city map, for example, may be copyrighted anew by the addition of new subdivisions to bring
it up to date, even though these comprise but a small fraction of the map as a whole. "In considering differences between maps the substantial character between such differences cannot be tested in terms of inches”. Sauer v. Detroit Times Co., 247 F. 687 (1917). But a republished musical composition does not become a new work within section 6 merely because of new editing, fingering or phrasing. (See Copyright Office Rule 201.4, subpar. 5, in Appendix.) On the other hand, a price-list catalog, republished from time to time with necessary changes, comes within the scope of section 6. Sief v. Continental Auto Supply, Inc., 50 USPQ 19 (1941).
Unless, therefore, the "new matter" involves new work of authorship of substantial character, due consideration being given to the nature and purpose of the work, it is safer to use only the original year date in the notice on the new edition, and thereby avoid the risk of losing the copyright in toto attendant upon using a later year date. Alternative Form of Notice The second sentence of section 18 of the Act provides :
"In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section 5 of this Act, the notice may consist of the letter C inclosed within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That 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, his name shall appear.”
The little word "may" implies of course that this is merely an alternative form of notice for the works specified. The other form prescribed in the first sentence of the section may be used instead, with or without the year date of publication. Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., 23 USPQ 295 (CCA 2, 1934).
Motion pictures were added as separate classes, (1) and (m), by the amendatory Act of 1912 (37 St. L. 488). Prior to that time they were deemed registrable as a unit in the category of photographs, Class (j), as under the old law, Edison v. Lubin, 122 F. 240 (1903); and were entitled to carry the alternative form of notice. Having been legislated out of the “preferred” class by the amendatory Act, they were thereafter required to carry the other form of notice. Inasmuch as photoplays are held to be "dramatic works", Tiffany Productions v. Dewing, 9 USPQ 545 (1931), and the term "printed” includes reproduction by photographic process, it would seem that for these at least the notice should contain the year date of publication, as required for a "printed dramatic work".
A picture book without continuity of story should presumably bear the first form of notice, Copyright, or Copr., accompanied by the name of the copyright proprietor, but since it is not a "literary, musical, or dramatic work” such notice need not bear the year date of publication. Fleischer Studios, Inc. v. Ralph A. Freundlich, Inc., supra.
The permissive use of the symbol © was a concession to the artists and lithographers, who complained that the customary notice tended to disfigure works of art. (Original Hearings, Vol. 2, Dec. 1906, pp. 97-100.) It may only be used for the classes specified, namely, maps, works of art or reproductions thereof, drawings or plastic works of a scientific or technical character, photographs, prints and pictorial illustrations, including commercial prints and labels (section 5, Classes (f) to (k) inclusive).
Note carefully that the C is to be placed within the circle, and not vice versa nor on the outside; and that it should be a circle, not a square, triangle or other geometrical figure. Such variations from the statutory prescription may not pass muster in a suit for infringement, though no reported cases directly in point are found.
The symbol and accompanying initials must not be a lilliputian affair requiring a magnifying glass for discernment, Smith v. Wilkinson, 35 USPQ 113 (1937), aff'd 38 USPQ 1, nor so blurred in the process of reproduction as not to be recognizable on sight. Smith v. Bartlett, 32 USPQ 287 (1937); Strauss v. Penn Printing & Pub. Co., 220 F. 977 (1915). The initials would mean nothing to the public unless there is something on the work itself to indicate what they stand for. So the law requires that in addition to the initials accompanying the symbol the name of the copyright proprietor shall appear somewhere on the copies for the purpose of identification, failing which the notice is fatally defective, Goes Lith. Co. v. Apt Lith. Co., 30 USPQ 119 (1936). If the proprietor chooses to print his name in immediate proximity to the symbol, instead of his initials only, this would seem adequately to meet the requirements of the law, for the name necessarily includes the initials. The Copyright Office accepts for registration copies bearing such a notice. Position of the Notice (Section 19)
The notice of copyright must not only be substantially in the prescribed form, but, to be effective, must appear in the prescribed place. There is no specific provision as to where the alternative form of notice shall appear for Classes (f) to (k), inclusive,-maps, prints, works of art, etc.—but section 18 seems to imply that it shall be placed on the face of the copies of such works, while the name of the proprietor may appear elsewhere “on some accessible portion of such copies or of the margin, back”, etc. The early Copyright Acts expressly required the notice to be “impressed upon the face thereof" in the case of an engraving, cut or map separately published (4 St. L. p. 436, sec. 5); but it was nevertheless held that a notice on the visible margin of the engraving was sufficient compliance with such requirement, Rossiter v. Hall, Fed. Cas. No. 12,082 (1866). This probably is good law today, but no reported case is found under the present law in which the question was at issue.
With respect to Classes (a) to (e), inclusive,-books or other printed publications, periodicals, printed lectures, dramatic or dramatico-musical compositions, and musical compositions— section 19 governs the position of the notice. It provides:
"That the notice of copyright shall be applied [note the use of the peremptory word shall], (1) in the case of a book or other printed publication, upon the title-page or the page immediately following [i.e. the verso of the title-page], or (2) if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or (3) if a musical work either upon its title-page or the first page of music."
The term "other printed publication" would seem to cover everything published with a title-page or its equivalent; certainly printed dramas, lectures, pamphlets and leaflets. * But apparently it was not meant to include periodicals (except perhaps the unorthodox type) or musical works, for these are specially provided for in the clauses immediately following.
For periodicals, it is to be noted that the notice may not be placed solely upon “the page immediately following” the titlepage, as in the case of works coming within the first category. Let us hope, however, that “under the title heading" may include the masthead which is usually found on the editorial page. In any event, the notice should be placed so that it can readily be discovered without examining every page of the periodical, though the “first page of text” or even the title-page may be preceded by advertising pages. Freeman v. Trade-Register, 173 F. 419 (1909); American Travel, etc. v. Gehring, 4 F.2d 415 (1925).
* Probably also picture postcards and the like if the regular form of notice is used (copyright or copr, with name) instead of the formula ©.
A "musical work" undoubtedly includes a dramatico-musical work, and it is to be observed that the notice must appear on the title-page or the first page of music, and not solely on the back of the title-page. However, compilations of musical works published in book form would seem to be entitled to carry the notice upon the back of the title-page, even though for practical reasons they are registrable in the category of musical works.
The public is not obliged to browse about for the notice beyond the place designated in the law. In United Thrift Plan v. Nat'l Thrift Plan, 2 USPQ 345 (1929), a notice in the proper form but on the last page of a ten-page booklet was held fatally misplaced and equivalent to no notice at all. In the more recent case of Richards v. New York Post, Inc., 38 USPQ 475 (1938), Judge Patterson remarked: “By explicit provision of the statute the place for the copyright notice in the case of a book or printed pamphlet is on the title-page or the page immediately following. It follows that a notice on any other page, no matter how prominent, is ineffective."
In the latter case two pamphlets were involved, one of which bore a title on the front cover but the notice was on the rear cover; the other had no title on the cover or elsewhere but the notice was likewise on the rear cover. The Judge observed: “I will not say that a copyright notice on the front cover or on the page following, a title page being absent, would not suffice. In any event, a notice on the back cover will not do ... The plaintiff is right in urging that substantial compliance with the Copyright Act is all that is required. But when the Act requires that copyright notice be applied at a particular place in a work (the title page or page next following*) the courts may not dis
The page next following, or "immediately' following, would be the other side of the title-page, since each side of a leaf of a book constitutes a page. Kraft v. Cohen, 44 USPQ 678 (1940).