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pense with the requirement and say that a notice appearing somewhere else is enough."
In Deward & Rich, Inc. v. Bristol, 47 USPQ 128 (1940), it was held that the front cover of a book may, in the absence of a formal title-page, be used as a title-page on which to print the notice. The court further held that while the copyright of a book of advertising prints protected each and every print, yet if any of the prints were afterwards separately published in newspapers or otherwise, they must bear the same form of notice as appeared on the title-page of the book and not the C in a circle formula. The same ruling was also made in Basevi v. O'Toole Co., Inc., 40 USPQ 334 (1939). But it is difficult to find in the Act itself any provision to require so technical a construction. It would seem that any form of notice appropriate under the Act to the particular subject matter should be sufficient warning to an infringer, else the purpose of Congress in authorizing the use of the C in a circle formula for the designated classes would largely be defeated.
No specific provision is made in the Copyright Act for the position of the notice with respect to an article first published as a contribution to a periodical under a separate copyright, since it cannot properly be said to have a "title-page". It should be sufficient to print the notice under the title or even at the end of the article if it is complete on one page of the periodical.
Nor is there any specific provision for the position of the notice in the case of motion picture reels. In a case decided under the prior law it was held that a copyright notice affixed to the end of the film was sufficient. American Mutuscope v. Edison, 137 F. 262 (1905). Nowadays it is invariably placed under the title heading, which is certainly a safe place.
The closing proviso to section 19 reads: “That one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice." That is to say, one notice in the proper place shall suffice to protect "all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright”. (Section 3)
In the case of a multiple-reel motion picture, it has been held that one notice on the first reel is sufficient to protect the whole picture. Patterson v. Century Productions, Inc., 35 USPQ 871 (CCA 2, 1937.) In the case of a book published in several volumes, each volume must bear the notice.
Saving Clause (Section 20)
In a case arising under the old law, it appears that one Thompson had secured a valid copyright in a book and put the required notice "upon the several copies" thereof. He afterwards assigned his copyright to one Hubbard, who proceeded to bring out a new edition, but through inadvertence the name of the new copyright proprietor was omitted from the notice on some, but not all, of the copies published. Thompson, the original proprietor, took advantage of this oversight and reprinted the new edition (with certain additions of his own) and, as the saying is, got away with it. Unethical to be sure, but not illegal under prior law according to the Supreme Court, which held that Hubbard had forfeited his copyright on account of the defective notice on some of the copies, even as against his assignor. Thompson v. Hubbard, 131 U. S. 123 (1889).
Because of this unrighteous state of affairs existing under the old law, Congress was moved to provide a saving clause in the present Act, section 20, which reads in part:
"That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright
but shall prevent recovery of damages against an innocent infringer who has been misled by the omission of the notice.”
This applies to instances where the notice, though good in form, is misplaced or illegible, or where it is defective, but only with respect to a particular copy or copies. The copyright must have been actually secured by publication with the prescribed notice on the bulk of the edition to enable the proprietor successfully to invoke the saving clause; otherwise, as observed by the court in United Thrift Plan v. Nat'l. Thrift Plan, 2 USPQ 345 (1929), sections 9, 18 and 19 of the Act would have to be construed as optional instead of mandatory. The section does not apply if the notice is omitted through "neglect or oversight". Sief v. Continental Auto Supply, Inc., 50 USPQ 19 (1941).
Notice with Respect to Works First Published Abroad
In the original draft of section 9 of the Act, it was provided that "any person entitled thereto by this Act may secure copyright for his work by publication thereof in the United States with the notice of copyright required by this Act"; but in the final draft the italicized words were transferred to the next clause: "and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor." This change makes it clear that a work duly copyrighted in the United States does not lose such copyright merely because there might be an edition published abroad without notice of United States copyright and sold only for use there. The Supreme Court had already ruled to the same effect. Merriam Co. v. United Dictionary Co., 208 U. 8. 264 (1908), affirming 146 F. 354.
As a matter of fact, most foreign countries have long since dispensed with the necessity of any notice of copyright as a condition for full protection, this being in accordance with the fundamental principles of the Berne Convention to which they have subscribed. Consequently, the editions of works intended solely for use in the countries of the Copyright Union do not as a rule bear any notice of copyright reservation.
But let us suppose that the foreigner, whose country has established copyright relations with the United States, has already published his work abroad without having taken steps to secure copyright in this country; can he still secure copyright protection here by subsequently publishing an edition in the United States with the prescribed notice? In the case of Italian Book Co. v. Cardilli, 273 F. 619 (1918), Judge Hough decided that the publication in Italy of a song in 1913, duly copyrighted in Italy, did not prevent a subsequent American copyright for an authorized edition of the identical song published here four years later with copyright notice containing the original year date of publication in Italy (1913). He reached this conclusion "with considerable doubt”, and said that “the principle is important and should be decided authoritatively". His ruling was disapproved by Judge Woolsey of the same District Court in the more recent case of Basevi v. O'Toole Co., Inc., 40 USPQ 334 (1939), who expressed the view that the Cardilli case must be regarded as having been overruled by the Circuit Court of Appeals in American Code Co. v. Bensinger, 282 F. 829 (CCA 2, 1922).
The last clause of section 9 of the Act expressly exempts from the requirement of notice “books seeking ad interim copyright under section 21 of this Act”. Except as to these, the Copyright Office declines to accept for registration copies of works published abroad unless such copies bear the statutory notice, this being the evidence upon which the Office must rely to show that the law has been complied with.
Deposit of Copies and Registration of
Works First Published
Under the prior law the deposit of copies in the Copyright Office or in the mail properly addressed was one of the conditions precedent to securing a valid copyright; and such deposit had to be made "not later than the day of the publication thereof in this or any foreign country". R. S. 4956, as amended by the Act of 1891. Failure to do so, even for a single day, caused the work to fall into the public domain. This appears to have been the fate of numerous valuable works. (See Committee Report on Act, in Appendix.)
The framers of the present Act sought to avoid this drastic result by granting complete copyright upon publication of the work with the prescribed notice; and permitting the deposit of copies to be made “promptly” thereafter, without setting any precise time limit. The effect of this was, as aptly remarked by Judge Learned Hand in Mittenthal v. Berlin, 291 F. 714 (1923), “to open a path for authors beside and not through the quagmire which had been created under the old law”. He held that even a premature deposit before actual publication would not prove disastrous. The pertinent provisions in section 12 read:
“That after copyright has been secured by publication of the work with the notice of copyright ... there shall be promptly deposited in the Copyright Office or in the mail addressed to the Register of Copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, or if the work is by an author who is a citizen or subject of a foreign state or nation and has been published in a foreign country, one complete copy of the best edition
then published in such foreign country Prompt Deposit
The Act nowhere defines the term “promptly" nor does it pro