© 2011 Kenya L. Williams, Esq.
What is Copyright Notice?
Notice, as it pertains to copyrights in the United States, entails placing the symbol © (or the word “Copyright,” or the abbreviation “Copr.”), the year of first publication, and the name of the copyright owner, whether it be the original author or one to whom the copyright has been assigned. The work must be an original work of authorship which is fixed in a tangible medium of expression. In other words, the authored work must be in tangible form. One cannot copyright an idea, a thought, or other intangible thing.
Copyright Law in the United States: Then
Effective January 1, 1978, the 1976 Copyright Act, codified as Title 17 of the United States Code, required all copyrighted works to provide notice of that copyright. Prior to the enactment of the 1976 Copyright Act, works published under the copyright owner’s authority without proper copyright notice resulted in the loss of copyright protection in the U.S. Later, the 1988 Berne Convention Implementation Act amended the 1976 Copyright Act to make copyright notice optional for works published on or after March 1, 1989.
Copyright Law Outside the United States
To protect works created outside the U.S., in countries that do not require the same copyright notice required in the U.S., the Uruguay Round Agreements Act (URAA) of 1994 automatically restored copyright for some foreign works that were placed in the public domain due to lack of notice or failure to comply with other legal requirements. A work is considered in the public domain when there is no copyright notice provided, where required, or other legal requirements are not satisfied to establish a legitimate copyright. Therefore, such works could be freely appropriated by the public without repercussions.
Copyright Law in the United States: Now
Currently, notice is not officially required in the U.S. for works created on or after March 1, 1989, however it is a good idea to do so in order to avoid having to engage in expensive litigation to prove authorship and get damages. All authors are strongly encouraged to place copyright notice on all copies of any work distributed to the public. This avoids confusion and can save the author time and money later. If it is clear who created a particular work and when, there is no excuse for failure to obtain permission from the rightful author prior to using the work or derivatives thereof. Potential copyright infringers enter at their own risk when there is copyright notice, however, with no notice, the copyright owner places himself at risk of having his creation appropriated inadvertently.
What Does the Use of Copyright Notice Mean?
By placing the © symbol, the year of first publication, and the author’s name on the work, the rightful author ensures that the public will be aware that the work is protected by copyright. Authors have the ability to register their works with the U.S. Copyright Office, however this formality is no longer required in the U.S. Still, if the author ever must engage in litigation to prove ownership of the copyright, registration with the U.S. Copyright Office certainly makes this process much easier. Still, even without official U.S. Copyright Office registration, if there is proper notice, the so-called “innocent infringement defense” will not completely absolve the alleged infringer of fault.
Repercussions for Failure to Include Proper Copyright Notice
Failure of proper copyright notice can conceivably be remedied within five years of publication under the 1976 Copyright Act. Not doing so within the five-year time frame could eliminate copyright protection forever in the U.S., without the possibility of restoration.
On the other hand, under the Berne Convention, since notice on works published on or after March 1, 1989 was considered optional, failure to provide notice did not place the work in the public domain, but the “innocent infringement defense” could be used to reduce damages for copyright infringement.
What is the Moral of the Story?
In order to fully protect an original work of authorship fixed in a tangible medium of expression, and to be able to receive all applicable remedies and damages for copyright infringement should it occur, an author should provide notice of the copyright by placing ©, the year of first publication, and the author’s name on the work, or in close enough proximity to the work, such that a potential infringer is well aware of the fact that the materials are copyrighted. Not doing so will put the author at risk of having the work copied or stolen, and to prove actual authorship may be (and probably will be) an expensive and time-consuming road to travel.
