Lots of folks think that the way to ensure that their creative work is protected by copyright is to include some notice that it is copyright protected, or including the © in the work. But requirement of such a notice seems inconsistent with the idea that creative works are copyright-protected when they are fixed. That said, in the United States, copyright notice has, at various times, been very important in protecting one's rights. Different versions of the copyright law had different requirements. It is important to know these differences when looking at older works, as the law at the time of publication applies with regard to notice requirements.
Copyright Act of 1909: Under this older scheme, applicable through January 1, 1978, common law copyright protection applied before a work was published. Upon publication, there was no common law protection, and protection depended upon compliance with the statutory requirements. The statute required that all authorized copies of a work carried proper notice of copyright. This requirement was fairly strictly construed. If even a few copies of a work had improper notice or no notice, then all copyright protection in the work could be lost.
Copyright Act of 1976: This scheme applies to works published between January 1, 1978 and March 1, 1989. In this scheme, federal statutory protection began upon fixation of the work in a tangible form. Notice was required for all visually perceptible copies of a work that were publicly distributed. As before, failure to do so could result in loss of copyright protection. However, if certain conditions were satisfied, the copyright protection could be saved in spite of the improper notice. Copyright protection could be saved if only a small number of copies were distributed without notice, if the work was registered with the Copyright Office within five years of publication and efforts were made to add notice to copies distributed after the omission of notice was discovered, and if the copies of the work were distributed in direct violation of an express agreement in which the copyright owner insisted that the copies include notice. If a copies lacked notice, and even if copyright protection was saved, innocent infringers who relied upon the lack of notice as an indication that the work was in the public domain were excused from paying damages for their infringement.
Berne Convention: This is the current scheme, applicable since March 1, 1989. The Berne Convention is an international copyright protection scheme. Most foreign countries have long shunned the need for copyright notice and other formalities. In order to join the Berne Convention, the U.S. had to eliminate its notice requirement. Accordingly, notice requirement is now strictly voluntary. However, the U.S. code attempts to encourage the inclusion of the voluntary notice by providing that if proper notice is included on the published copy of a work to which an accused infringer had access, the defendant could not use an innocent infringer defense to mitigate actual or statutory damages. Thus, including notice can be very important in any copyright litigation.
Next time, we'll talk about the requirements for copyright registration, and why it is worthwhile. If you have any questions about copyright law, email us or post them on the blog. The email is JDellinger@mainspringlaw.com. We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.