U'hinkle Law Group

Notice of Copyright

The use of a copyr ight notice is no longer required under U.S. law, although it is often beneficial. Because pr ior law did contain such a requirement, however, the use of notice is still relevant to the copyr ight status of older wor ks. Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention , effective March 1, 1989. Although works published without notice before that date could have entered the public domain in the United States, the Uruguay Round Agreements Act (URAA) restores copyright in certain foreign works originally published without notice. For further information about copyright amendments in the URAA, see Highlights of Copyright Amendments Contained inthe Uruguay Round Agreements Act from the U.S. Copyright Office. The Copyr ight Office does not take a position on whether copies of wor ks first published with notice before March 1, 1989, which are distr ibuted on or after March 1, 1989, must bear the copyr ight notice. Use of the notice may be impor tant because it infor ms the public that the wor k is protected by copyr ight, identifies the copyr ight owner, and shows the year of first publication. Fur ther more, in the event that a wor k is infr inged, if a proper notice of copyr ight appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s inter position of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in Section 504(c)(2) of the copyr ight law. Innocent infr inge- ment occurs when the infr inger did not realize that the wor k was protected. The use of the copyr ight notice is the responsibility of the copyr ight owner and does not require advance per mission from, or registration with, the Copyr ight Office. Form of Notice for Visually Perceptible Copies The notice for visually perceptible copies should contain all the following three elements: 1. The copyr ight symbol (©), or the word "Copyr ight," or the abbreviation "Copr."; and 2. The year of first publication of the wor k. In the case of compilations or der ivative wor ks incor porating previously pub- lished mater ial, the year date of first publication of the compilation or der ivative wor k is sufficient. The year date may be omitted where a pictor ial, graphic, or sculptural wor k, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationer y, jewelr y, dolls, toys, or any useful ar ticle; and 3. The name of the owner of copyr ight in the wor k, or an abbreviation by which the name can be recognized, or a gener- ally known alternative designation of the owner. Example: © 2002 John Doe The "©" notice is used only on "visually perceptible copies." Cer tain kinds of wor ks -- for example, musical, dramatic, and literar y works -- may be fixed not in "copies" but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are "phonorecords" and not "copies," the "C in a circle" notice is not used to indicate protection of the under lying musical, dramatic, or literar y wor k that is recorded. Form of Notice for Phonorecords of Sound Recordings* * Sound recordings are defined in the law as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual wor k." Common examples include recordings of music, drama, or lectures. A sound recording is not the same as a phonorecord. A phonorecord is the physical object in which wor ks of authorship are embodied. The word "phonorecord" includes cassette tapes, CDs, LPs, 45 r. p. m. disks, as well as other for mats. The notice for phonorecords embodying a sound recording should contain all the following three elements: 1. The symbol (the letter P in a circle); and 2. The year of first publication of the sound recording; and 3. The name of the owner of copyr ight in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice. Example: 2002 A. B. C. Records Inc. NOTE: Since questions may ar ise from the use of var iant for ms of the notice, you may wish to seek legal advice before using any for m of the notice other than those given here. Position of Notice The copyr ight notice should be affixed to copies or phonorecords in such a way as to "give reasonable notice of the claim of copyr ight." The three elements of the notice should ordinar ily appear together on the copies or phonorecords or on the phonorecord label or container. T he Copyr ight Office has issued regulations concer ning the for m and position of the copy- right notice in the Code of Federal Regulations ( 37 CFR Section 201.20 ). For more infor mation, see this ar ticle from the U.S. Copyr ight Office titled Copyr ight Notice . Publications Incorporating U.S. Government Works Wor ks by the U.S. Gover nment are not eligible for U.S. copyr ight protection. For wor ks published on and after March 1, 1989, the previous notice requirement for wor ks consisting pr imar ily of one or more U.S. Gover nment wor ks has been eliminated. However, use of a notice on such a wor k will defeat a claim of innocent infr ingement as previously descr ibed provided the notice also includes a statement that identifies either those por tions of the wor k in which copyr ight is claimed or those por tions that constitute U.S. Gover nment mater ial. Example: © 2002 Jane Brown. Copyr ight claimed in Chapters 7-10, exclusive of U.S. Gover nment maps Copies of wor ks published before March 1, 1989, that consist pr imar ily of one or more wor ks of the U.S. Gover nment should have a notice and the identifying statement. Unpublished Works The author or copyr ight owner may wish to place a copyr ight notice on any unpublished copies or phonorecords that leave his or her control. Example: Unpublished wor k © 2002 Jane Doe Omission of the Notice and Errors in Notice The 1976 Copyright Act attempted to ameliorate the strict consequences of failure to include notice under prior law. It con- tained provisions that set out specific corrective steps to cure omissions or certain errors in notice. Under these provi- sions, an applicant had 5 years after publication to cure omission of notice or certain errors. Although these provisions are technically still in the law, their impact has been limited by the amendment making notice optional for all wor ks published on and after March 1, 1989. For fur ther infor mation, see the Copyr ight Notice ar ticle .