complete copies of the best edition then published." And section 10 requires compliance with these provisions as a condition. precedent to registration and issuance of the certificate.

The importance of recording the actual date of publication arises from the fact that, in the case of every work copyrighted in the first instance by publication with notice, the first term of 28 years begins to run from that date, and hence any error on the part of the applicant is liable to result in serious consequences, and especially in connection with application for renewal of copyright.

Generally speaking, then, the date of publication would be the very day when copies of the first authorized edition were either (1) placed on sale, or (2) sold, or (3) publicly distributed, or (4), in the case of works of art not reproduced in copies for sale or public distribution, the day when the original was unrestrictedly exhibited to the public. It would not include the date when copies may have been privately distributed by the author among friends or editors for the sole purpose of criticism or comment in advance of offering the work for public consumption. "The copyright statutes refer to a published edition, which is an edition offered to the public by sale or circulation". Falk v. Gast, 54 F. 890 (CCA 2, 1893). Nor would it include the date of printing or advertising the work, or the sale or offering for sale of the author's manuscript to a prospective publisher. These are but preliminary steps toward publication.

"Placed on Sale"

The phrase "placed on sale" is new in the copyright statutes and does not appear to have been defined by the courts. Ordinarily it implies the exposure of copies of the work on stalls or counters for inspection and purchase by the interested public, and on the very day of such exposure the copyright comes into being even though no sale takes place. Actual physical exposure may not be essential. If the dealer has copies "in stock" ready for delivery on demand, they may fairly be deemed placed on sale so far as the public is concerned. But the exhibition of "sample" copies by agents soliciting business would not in itself constitute placing on sale, for "a sample is not a published

edition within the meaning of the copyright laws." Falk v. Gast, supra. In such cases it is only when a bargain is struck and a sale and delivery is effected, that publication takes place. Gottesberger v. Aldine Book Co., 33 F. 381 (1888).

But copies are often sold directly without being technically "placed on sale"; as through the mails or by travelling salesmen. While the statute speaks of "copies", there can be no doubt that the sale of a single copy of "the first authorized edition" would be sufficient to start the copyright running. Werckmeister v. American Litho. Co., 134 F. 321 (1904). In one case it was held by the District Court that the sale of a proof copy of a magazine article to the treasurer of the company shortly before its appearance in the magazine, accompanied by the filing of two similar copies in the Copyright Office, constituted publication "insofar as the statutory formalities are concerned". Atlantic Monthly Co. v. Post Pub. Co., 27 F.2d 556 (1928). But such a ruling tends to bring chaos into the copyright law and to defeat the purpose of Congress in trying to secure for its library the best edition of all works claiming copyright protection. The infringement took place prior to publication of the article in the plaintiff's magazine, and the plaintiff should, under the circumstances, have brought suit under the common law and not under the statute. Had the notice been omitted from these proof copies, one of which had been surreptitiously secured by defendant, it is hardly conceivable that he could have successfully set this up as a defense against liability for damages at common law.

"Publicly Distributed"

The term "publicly distributed" was inserted here to cover material which might be distributed gratuitously and never sold or placed on sale. (Original Hearings, 1906, vol. 1, p. 71; vol. 2, p. 101.) Familiar examples are house organs, pamphlets, handbills and the like left on doorsteps or sent out through the mails.

It seems that motion picture films are not usually sold or placed on sale, but are distributed to exhibitors on a contractual basis. When so distributed for the purpose of commercial exhibition, this constitutes publication; but not so where copies are sent out for restricted exhibition on a non-commercial basis

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.

Chapter VII

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