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Has Your Copyright Escaped Notice? Six Questions You Probably Never Thought to Ask

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Steve GillenSteve Gillen (photo right) is a partner in the intellectual property firm of Wood, Herron & Evans L.L.P. and has focused his practice on publishing and media matters for 30 years. To reach him, email sgillen@whepatent.com or call 513-241-2324.

You place it on the back of your title page because . . . well, because you always have . . . and because everyone else always does. But why there? And why does it say what it says? Here are six questions most publishers never even ask. The answers may cause you to change what you do and, in any event, will help you understand why it matters.

Why bother to use a notice? It hasn’t been legally required since 1989.

Before March 1, 1989, the use of a copyright notice “in legally sufficient form” was mandatory on all published works. Any work first published before that date in the United States without a proper notice automatically forfeited its copyright protection unless the omission was corrected within five years. In 1989, however, the United States amended its copyright laws to come into compliance with the international Berne Convention, which required the United States to eliminate formalities to copyright protection.

Accordingly, since 1989 neither the use of notice nor registration is a precondition to copyright protection in the United States. But see “Reasons to Register” below, and remember that it’s still a good idea to include a notice on every authorized copy of a published work, for these reasons:

  • It serves as your literary “No trespassing” sign and alerts readers to your claim of copyright.
  • It precludes any would-be infringers from asserting as a defense that their infringement was innocent (a defense which, if successfully argued, might lower the range of available statutory damages).
  • It may force a would-be infringer to remove or obliterate your notice from the infringing copies, which would improve your chances of establishing that the infringement was willful and therefore raise the upper limit of available statutory damages by 500 percent, to $150,000.

What must the notice say, and where should I put it?

A legally complete copyright notice includes each and all of these three elements:

  • the word “copyright,” an accepted abbreviation, or the international symbol ©
  • the year of first publication of the work
  • the name of the copyright owner or an alternative designation by which the owner would be generally recognized (e.g., IBM for International Business Machines).

If your work includes substantial material from a U.S. government publication, your notice should generally identify that material and exclude it from your copyright claim.

The notice should be placed in a location and manner so as to “give reasonable notice of the claim of copyright.” For printed and bound books, conventional practice, recognized in the Copyright Office regulations, has been to place the notice on the backside of the title page, but other locations would satisfy the requirements of the law as long as the notice was legible to an ordinary user of the work under normal conditions of use.

Why use © together with the word “copyright”? Isn’t that redundant?
(And what is ? ®?)

The circle-C symbol has the advantage of being a universally recognized, language-neutral signal for your copyright claim. It will be easily recognized from Afghanistan to Zimbabwe.

Unfortunately, the ASCII code for the circle-C symbol is not always displayed appropriately by all software interfaces in all fonts, and that’s why you sometimes see the character string &#169 where the circle-C was intended. So, to cover your bases, it’s generally a good idea to use both in your notice—Copyright ©.

Two other symbols are sometimes confused. Circle-P is the symbol for the copyright in a sound recording (the physical copy of which is termed a “phonorecord”). Circle-R is the symbol for a trademark or service mark that has been registered with the U.S. Trademark Office or another national trademark office.

What year should I use? Should I use more than one?

The duration of copyright protection is measured from the year of first publication in some circumstances. In others, it is measured by the life of the author. In either case, a user interested in determining the copyright status of the work needs to know when it was first published.

While the law requires inclusion in a notice of the year of first publication, it permits you to post-date the notice by up to one year without jeopardizing the legal sufficiency of the notice—i.e., if your work is first available to the public in calendar 2011, your notice could claim 2012 and still be legally sufficient. So if your review copies are out in 2011 but your “official” publication date is 2012, your notice can carry the latter date.

Where a work comprises a compilation of other works or is derived from preexisting works, the notice can include just the year date of first publication of the compilation or derivative work. But you may want to provide more information for reasons that relate to marketing. If, for example, your work is a frequently revised or updated publication of long standing in the marketplace, you may want to signal that by including the year of each preceding edition as well as the year of publication of the current edition.

Why does everyone include the statement “All rights reserved”?

“All rights reserved” has been ever-present in copyright notices since early in the last century. It owes its origin to the Buenos Aires Copyright Convention of 1910 between North and South American countries, which required authors to explicitly reserve property rights in their works as a condition to securing copyrights in signatory countries.

Now, however, all countries party to the Buenos Aires Convention are also signatory to either the Universal Copyright Convention or the Berne Convention, neither of which requires a reservation of rights as a condition to copyright protection. So the “All rights reserved” notice no longer serves any useful purpose. (Unless, that is, you are first publishing a work in Nicaragua for which you want to secure full copyright protection in Honduras—there is an exception to every rule. The reason for this one would take us far deeper into international copyright law than you are likely to want to go.) “All rights reserved” lives on as a testament to the power of inertia and publishers’ neglect of the page behind the title page.

Is it important to add: “No part of this book may be reproduced or transmitted in any form . . .”?

It would be hard, I think, to underestimate the copyright-IQ of the average American reader. So copyright formalities and legal requirements aside, it is probably a good practice to provide a plain and simple statement of what you will and will not permit with respect to your published book. The statement should include an acknowledgment of what the Fair Use doctrine will permit as well as an invitation to ask your permission for more . . . something like:

No part of this publication may be reproduced, stored, or transmitted in any form or by any means except for brief quotations in reviews or for purposes of criticism, commentary, or scholarship, as may be permitted by law.

Requests for permission or reprint or adaptation licenses should be made in writing to [provide a postal and email address or direct people to a permissioning page on your Web site; this is a sales opportunity, so make it easy to ask].

Make the Most of the Message

Don’t surrender to inertia; don’t just bow to tradition; and don’t cede the page behind the title page to the lawyers without some thought. That’s where you have your chance to present important information about ownership claims, printing, and cataloging, and in some cases to provide disclaimers.

It will pay to give some thought to what you want to say, to present the information in clear and accessible language, and to plan your layout and design to enhance the communication of your message instead of undercutting it in dense, tiny type.

Reasons to Register

The U.S. Copyright Office maintains a public catalog where you can register your claim of copyright in works authored or owned by you. Registration is permissive; it is not a condition of copyright protection. But some important advantages have been provided to encourage registration so that we have a more complete public record of who owns what:

  • Registration puts the world on notice of your claim.
  • Registrations obtained before infringement provide access to enhanced remedies, including the ability to recover your attorney’s fees in an enforcement action and access to statutory damages of up to $150,000 per work infringed when the infringement is willful.
  • Registrations secured within three months of first publication provide seamless access to those enhanced remedies retroactive to the date of first publication.
  • Registrations secured within five years of first publication of your work are afforded a presumption of validity in court, making your proof case easier.
  • Registrations can be filed with the U.S. Customs Service to block importation of infringing articles.
  • Registration helps build and formalize a portfolio of intellectual property rights that can enhance the value of your business; facilitate financing, investment, or sale; and ease the due diligence burden for those transactions.
  • Registration is inexpensive—currently $35 for online registration of a basic claim.

Also, although registration is not a condition of copyright protection, it is required before you can initiate a suit in federal district court. You can always wait until you decide to sue and register your claim at that time, but if you take this approach, you will lose access to the enhanced remedies and may lose access to the presumption of validity.

For more information and access to the searchable public catalog and online registration see copyright.gov.

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