Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. See the following note. There are, however, certain definite advantages to registration.
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or vinyl disks. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.
Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909. However, publication remains important to copyright owners.
The 1976 Copyright Act defines publication as follows:
“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership,or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposesof further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
Publication is an important concept in the copyright law for several reasons:
• Works that are published in the United States are subject to mandatory deposit with the Library of Congress.
• Publication of a work can affect the limitations on the exclusive rights of the copyright owner that are set forth in sections 107 through 122 of the law.
• The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works (when the author’s identity is not revealed in the records of the Copyright Office) and for works made for hire.
• Deposit requirements for registration of published works differ from those for registration of unpublished works.
• When a work is published, it may bear a notice of copyright to identify the year of publication and the name of the copyright owner and to inform the public that the work is protected by copyright. Copies of works published before March 1, 1989, must bear the notice or risk
loss of copyright protection.
Notice of Copyright
The use of a copyright notice is no longer required under U. S. law, although it is often Beneficial. Because prior law did contain such a requirement, however, the use of notice is still
relevant to the copyright status of older works. Notice was required under the 1976 Copyright Act. This requirement was eliminated when the United States adhered to the Berne Convention, effective March 1, 1989. Although works published without notice before that date could have
entered the public domain in the United States, the Uruguay Round Agreements Act (URAA) restores copyright in certain foreign works originally published without notice.
Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the Copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected. The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office.
Form of Notice for Visually Perceptible Copies
The notice for visually perceptible copies should contain all the following three elements:
1. The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; and
2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. Example: © 2011 John Doe
The “C in a circle” notice is used only on “visually perceptible copies.” Certain kinds of works—for example, musical, dramatic, and literary works—may be fixed not in “copies” but by means of sound in an audio recording. Since audio recordings such as audio tapes and phonograph disks are “phonorecords” and not “copies,” the “C in a circle” notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.
Form of Notice for Phonorecords of Sound Recordings
The notice for phonorecords embodying a sound recording should contain all the following three elements:
1. The letter P in a circle; and
2. The year of first publication of the sound recording; and
3. The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. If the producer of the sound recording is named on the phonorecord label or container and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice.
The copyright notice should be affixed to copies or phonorecords in such a way as to “give reasonable notice of the claim of copyright.” The three elements of the notice should ordinarily
appear together on the copies or phonorecords or on the phonorecord label or container.
Works by the U. S. government are not eligible for U. S. copyright protection. For works published on and after March 1, 1989, the previous notice requirement for works consisting
primarily of one or more U. S. government works has been eliminated. However, use of a notice on such a work will defeat a claim of innocent infringement as previously described provided the notice also includes a statement that identifies either those portions of the work in which Copyright is claimed or those portions that constitute U. S. government material.
Example: © 2011 Jane Brown
Copyright claimed in chapters 7–10,
exclusive of U. S. government maps
Copies of works published before March 1, 1989, that consist primarily of one or more works of the U. S. government should have a notice and the identifying statement.
The author or copyright owner may wish to place a copyright notice on any unpublished copies or phonorecords that leave his or her control.
Example: Unpublished work © 2011 Jane Doe
Omission of Notice and Errors in Notice
The 1976 Copyright Act attempted to ameliorate the strict consequences of failure to include notice under prior law. It contained provisions that set out specific corrective steps to cure omissions or certain errors in notice. Under these provisions, an applicant had five years after publication to cure omission of notice or certain errors. Although these provisions are technically still in the law, their impact has been limited by the amendment making notice optional for all works published on and after March 1, 1989.