Required to Secure Copyright Protection Before March 1, 1989
Copyright Office Recommends Placement of Copyright Notice After March 1, 1989
Visually Perceptible Copies
Phonorecords of Sound Recordings
Required to Secure Copyright Protection Before March 1, 1989
Prior to March 1, 1989, all published works sought to be protected under the copyright law were required to bear a copyright notice on all copies and phonorecords. Copyright notice has never been required for unpublished works. However, the Copyright Office recommends that unpublished works bear a copyright notice in the event that it leaves the author’s control and is subsequently published. A recommended form of notice for an unpublished work is as follows: (Circular 3)
- Unpublished work copyright 1996 Jane Smith
Works published on or after January 1, 1978 and before March 1, 1989 must bear the copyright notice or risk loss of copyright protection unless remedial action is taken. The loss of copyright protection will occur five years after publication.
Remedial action for the omission of copyright notice requires the following: (Copyright Office Circular 3)
- the work was registered before it was published or within five years after publication without copyright notice; and
- the owner of the copyright must be diligent in attempting to provide copyright notice on all copies or phonorecords that are later distributed once the omission has been discovered.
An omission of a copyright notice which does not require remedial action in the following circumstances: (Copyright Office Circular 3)
- where the notice has been omitted on only a few copies or phonorecords which have been disseminated to the public; and
- the copyright owner has been reasonably diligent in attempting to place copyright notice on those copies or phonorecords, once the omission has been discovered.
Publication
Publishing an author’s work involves the public dissemination of copies or phonorecords through selling or otherwise transferring ownership, lease, rental or loan.
The copyright statute warns that a performing the work to the public does not constitute a publication of the copyrighted work. However, offering to disseminate copies or phonorecords to the public for the purpose of further public distribution, performance or display does amount to publication. (17 U.S.C. sec. 101; Copyright Office Circular 3)
Copyright Office Recommends Placement of Copyright Notice After March 1, 1989
For works published after March 1, 1989, the Copyright Office recommends the use of a copyright notice for several reasons: (Circular 3)
- notice provides a record for the public, informing it that the work in question is protected by a copyright;
- proper notice will inform the public of the copyright owner’s name and the year of publication;
- where a work contains a proper copyright notice, it will generally defeat a claim that a copyrighted work was "innocently infringed." A successful defense to an infringement lawsuit, based on innocent infringement, will reduce the amount of damages that a copyright owner would receive as a result of the unauthorized use and/or distribution of his copyrighted work.
Placement of such a notice does not require authorization from the Copyright Office.
Innocent Infringement
This defense to a lawsuit alleging that a copyrighted work has been improperly used and/or distributed allows the defendant to claim that, based on a lack of notice, he did not realize at the time in question that he was improperly utilizing the plaintiff’s protected work. (Copyright Office Circular 3). A successful defense based upon innocent infringement will allow a defendant to avoid the payment of either actual damages or damages mandated by the copyright statute, for any acts of infringement which occurred before the defendant became aware that he was infringing upon a copyright. (17 U.S.C. sec. 405(b)).
Visually Perceptible Copies (17 U.S.C. sec. 401)
After March 1, 1989, an author may choose to place a notice on his published work. The copyright act does not require the placement of a notice in order to acquire a copyright. If placement of a notice is desired, it should be affixed to copies of the work, with all elements of the notice near to each other. (17 U.S.C. sec 401; Copyright Office Circular 3). The type of notice may take several forms:
- Placement of the letter "C" in a circle;
- Placement of the word "Copyright";
- Placement of the abbreviation "Copr."; and
- Notation of the first year the work was published. If the work is a compilation or a work based on previous work, the year of publication of the compilation or derivative work is sufficient; and
- The name of the copyright owner.
Phonorecords of Sound Recordings
Copyright notice takes the following form: (Copyright Office Circular 3)
- the letter "P" in a circle;
- the year that the sound recording was initially published;
- the sound recording copyright owner’s name, recognizable abbreviation or other designation by which the copyright owner is known.
If the producer’s name appears on the phonorecord’s label or packaging, and no other name is listed as part of the notice, the producer’s name becomes part of the copyright notice.
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