Copyright Formalities Exercises
Read §§401-406 of the 1976 Copyright Act, which contain the current optional notice provisions for the different categories of copyrightable works. Keeping in mind that prior to March 1, 1989, these requirements were mandatory, consider the following problems.
a. In 1985, Tom published his first novel. What should the copyright notice contain?
It should contain either the copyright symbol or the word "Copyright", the year of publication, and the name or recognized pseudonym of the author. For example, "© 1985 Tom [Lastname]".
b. Assume that notice was omitted from the first edition of Tom’s novel. What are the consequences of that error? What if, in 1986, Tom’s publisher alerted bookstores that had purchased copies of the novel, and asked the bookstores to paste a proper notice of copyright inside all the copies that still remained on their shelves?
Failing to publish the book with notice (prior to March 1, 1989, the effective date of the Berne Convention implementation act) could result in the forfeiture of copyright protection. However, if Tom registered his copyright within five years of the publication date and the publisher contacted the bookstores as described in the question, the copyright would not be forfeited. See § 405(a)(2).
Even if copyright is not forfeitedbecause of the steps Tom or the publisher took to cure the defective notice, someone who copies one of the unmarked works would be entitled to raise a defense of innocent infringement (i.e., believing that the work is not copyrighted due to lack of notice). See § 405(b).
c. Janice is a freelance writer. In 1991, she wrote an op-ed article for the Sun Times, a weekly periodical. The Sun Times affixed notice to the periodical. Did Janice also need to affix notice to her article?
She does not, because "a single notice applicable to the collective work as a whole is sufficient . . . regardless of the ownership of copyright in the contributions". § 404(a). If she had published the article before 1989, then the notice's omission would affect certain innocent infringement defenses brought by infringers who had a license from the Sun Times, but not from Janice.
d. What result if neither Janice nor the Sun Times affixed notice to their respective works?
Because the publication is after 1989, the copyright is still in force. However, if there was no notice at all on the publication, then someone who copied the work in reliance on a lack of copyright may interpose a defense of innocent infringement, which would not eliminate liability but could mitigate damages.