PUBLISHED MARCH/APRIL 2019
by Leonard D. DuBoff and Amanda-Ann Bryan, Lawyers/Authors —
Two lawyers navigate the lay of the land for book copyright notices.
Editor’s Note: What follows is an excerpt from the book The Law (in Plain English) for Publishers.
Leonard D. DuBoff
Works published under the 1909 Copyright Act had to contain the proper notice in order to be protected by the federal copyright law. With few exceptions, any omission, misplacement, or imperfection in the notice on any copy of a work distributed by authority of the copyright owner thrusts the work forever in the public domain. Thus, savvy copyright owners often insisted that any license to publish was conditioned on the publisher’s inclusion of the proper copyright notice. That way, if the publisher made a mistake in the notice, the publication might be deemed unauthorized, but the copyright would not be affected. The publisher could be liable to the copyright owner for the loss of the copyright if it did occur.
Notice remained a requirement until March l, 1989, when the United States became a party to the Berne Convention. The intent of the Berne Convention is that copyright notice is not a legal requirement for protection. Notice is optional for works published after March 1, 1989. The Copyright Office does not take a position on whether reprints published after March 1, 1989, of works first published with notice before March 1, 1989, must bear the copyright notice. It is likely that such notice is not required.
A proper copyright notice on a written work has three elements. First, there must be the word copyright, the abbreviation copr., or the symbol ©. Courts may show some leniency with respect to minor variations, but departures do carry legal risk.
Second, the notice must contain the year of first publication (or, in the case of unpublished works governed by the 1909 Copyright Act, the year in which the copyright was registered). This date may be expressed in Arabic or Roman numerals, or in words. Under the 1909 Copyright Act, it was not clear when a derivative work, such as a substantially revised textbook, was first published. To be safe, the general practice was to include in the notice both dates-that of the original work and that of the revision. The 1976 Copyright Act makes it clear that the date of the publication of the derivative work is sufficient. The year of the first publication can be omitted on certain works specified in the Act, but this category is extremely narrow. Since the date is necessary for some forms of international protection, it should always be included.
The third necessary element is the name of the copyright owner. If there are several creators, one name is sufficient. Usually, the author’s full name is used, but if the author is well known by a last name, the last name can be used alone or with initials. A business that owns a copyright may use its trade name if the name is legally recognized.
Errors in a Copyright Notice
Failure to comply with these regulations does not automatically void the copyright notice but does put the burden on the copyright holder to prove that the notice was placed so as to give reasonable notice of the claim of copyright. The public is not expected to search high and low for a copyright notice. Should a court determine that the placement did not give reasonable notice, the work will be treated as if it were published without any notice.
Digital books should also contain copyright notices. If the e-book retains pagination, such as with a PDF or fixed-layout e-book, the copyright notice can follow the title page. If the e-book does not retain pagination, such as in a reflowable EPUB or MOBI file, the copyright notice can follow the title page, if included, or it can be shifted to the end of the e-book. To increase the likelihood of giving reasonable notice to readers, the copyright notice can be included in the digital file’s metadata, and a link to the copyright page can be included in the table of contents. While it is yet unclear what the legal implication of this information might be, ensuring this information is complete and correct can only help protect the copyright and bolster any argument that notice was reasonably given.
Under the 1976 Copyright Act, if a work was published prior to March 1, 1989, without notice, the copyright owner could still be protected for five years. During those five years, the owner must have registered the copyright with the Copyright Office and made a reasonable effort to place a notice on those copies published without notice and distributed within the United States. If this was done, full copyright protection is granted for the appropriate duration of the published work. This is known as the savings clause.
A copyright owner is always forgiven for an omission of notice if the omission was in violation of a contract that made inclusion of the proper notice a condition of the right to publish. Also, if the notice is removed or obliterated by an unauthorized person, this will have no effect on the validity of the copyright or the notice.
Even though any work published after March 1, 1989, is not required to have a copyright notice affixed, it is important to continue to provide notice. One reason is that an adequate notice is one of the prerequisites for eligibility to recover statutory damages and attorney fees in an infringement case. Another reason is that providing notice tends to better deter casual infringers from unauthorized copying, and one who relies on good faith on the omission of notice may argue that the copying was an innocent infringement. Innocent infringers may not be held be liable for damages, or damages may be limited to as little as $200, and they may be permitted to continue copying if the court upholds their claim of innocence if the infringer has made a sizable investment for future production, or the court may compel the copyright owner to grant a license to the infringer. In other cases, the innocent infringer may be compelled to give up any profits made from the infringement.
Leonard D. DuBoff is a business lawyer in Portland, Oregon. He taught law first at Stanford Law School then at Lewis & Clark Law School in Portland for almost a quarter of a century.
Amanda-Ann Bryan graduated Magna Cum Laude from Lewis and Clark Law School. She is a practicing lawyer specializing in intellectual property including copyright and trademarks.