Complete Home & Office Legal Guide

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/* The Mechanics of Copyright Registration are covered in this Chapter of the Copyright. */ CHAPTER 4. COPYRIGHT NOTICE, DEPOSIT AND REGISTRATION Section 401. Notice of copyright: Visually perceptible copies 402. Notice of copyright: Phonorecords of sound recordings 403. Notice of copyright: Publications incorporating United States Government works 404. Notice of copyright: Contributions to collective works 405. Notice of copyright: Omission of notice 406. Notice of copyright: Error in name or date 407. Deposit of copies or phonorecords for Library of Congress 408. Copyright registration in general 409. Application for copyright registration 410. Registration of claim and issuance of certificate 411. Registration as prerequisite to infringement suit 412. Registration as prerequisite to certain remedies for infringement ________________ S 401. Notice of copyright: Visually perceptible copies /* The law in effect prior to 3/1/89 follows: under the Berne Convention certain changes were made to the "Notice Requirement of the Copyright Law. */ (a) General requirement. Whenever a work protected under this title [17 USC SS 101 et seq.] is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. /* Now here's the section effective 3/1/89*/: (a) General Provisions. Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publically distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device. (b) Form of notice. The notice appearing on the copies shall consist of the following three elements: /* As of 3/1/89, subsection "b" begis with "If a notice appears on the copies, it shall consist of the following elements: */ (1) the symbol c (the letter C in a circle), /* C in a circle is not on the ASCII set of characters, so you'll have to imagine that there is a circle around the "C." */ 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 text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; 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. (c) Position of notice. The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive. /* Subsection "d" became law on 3/1/89:*/ (d) Evidentiary weight of notice. If a notice of copyright in the form and position specified in this section appears on the publsihed copy or copies to which a defendant in a copyright infringement suit has had access, the 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 proivided in the last sentence of section 504 (c)(2) [17 U.S.C. 504(c)(2).] S 402. Notice of copyright: Phonorecords of sound recordings /* The following was effective until March 1, 1989:*/ (a) General requirement. Whenever a sound recording protected under this title [17 USC SS 101 et seq.] is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed phonorecords of the sound recording. /* Here's the new section (a) */ (a) General Provisions. Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publically distributed phonorecords of the sound recording. (b) Form of notice. The notice appearing on the phonorecords shall consist of the following three elements: (1) the symbol P (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 labels or containers, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice. (c) Position of notice. The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright. /* Section (d) became effective on March 1, 1989 */ (d) Evidentiary weight of notice. If a notice of copyright in the form and position specified in this section appears on the published phonorecord or phonrecords to which a defendant in a copyright infringement suit has had access, the 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 proivided in the last sentence of section 504 (c)(2) [17 U.S.C. 504(c)(2).] S 403. Notice of copyright: Publications incorporating United States Government works /* First section 403 as it existed prior to March 1, 1989*/ Whenever a work is published in copies or phonorecords consisting preponderantly of one or more works of the United States Govern- ment, the notice of copyright provided by sections 401 or 402 [17 USC SS 401 or 402] shall also include a statement identifying, either affirmatively or negatively, those portions of the copies or phonorecords embodying any work or works protected under this title [17 USC SS 101 et seq.]. /* Section 103 as changed, effective 3/1/89):*/ Sections 401(d) and 402(d) shall not apply to a work published in copies or phonrecords consisting predominantly of one or more works of the United States Government unless the notice of copyright appearing on the publsihed copies or phonorecords to which a defendant in the copyright infringement suit had access includes a statement identifying, either affirmatively or negatively, those protions of the copies or phonorecords embodying any work or works protected under this title. /* Note that within the statutes in this package, or other U.S. government works, we "comment out" our editiorial contribution, which is copyright and copyrightable.*/ S 404. Notice of copyright: Contributions to collective works (a) A separate contribution to a collective work may bear its own notice of copyright, as provided by sections 401 through 403 [17 USC SS 401-403]. However, a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements of 401(d) or 402(d) as applicable with respect to the separate contributions it contains (not including advertisements inserted on behalf of persons other than the owner of copyright in the collective work), regardless of the ownership of copyright in the contributions and whether or not they have been previously published. /* Prior to October 31, 1988, the following was the law: */ (b) Where the person named in a single notice applicable to a collective work as a whole is not the owner of copyright in a separate contribution that does not bear its own notice, the case is governed by the provisions of section 406(a) [17 USC S 406(a)]. /* The following is the wording of this section since October, 1988 */ (b) With respect to copies and phonorecords publicly distributed by authorty of the copyright owner before the effective datte of the Berne Convention Implementation Act of 1988, where the person named in a single notice applicable to a collective work as a whole is not the onwer of copyright in a separate contribution that does not bear its own notice, the case is governed by the provisions of section 406(a). S405. Notice of copyright: Omission of notice (a) Effect of omission on copyright. The omission of the copyright notice prescribed by sections 401 through 403 [17 USC SS 401-403] from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if -- (1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice. (b) Effect of omission on innocent infringers. Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted, incurs no liability for actual or statutory damages under section 504 [17 USC S 504] for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408 [17 USC S 408], if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer's profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition or permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. /* The following became effective in October of 1988. */ (a) Effect of omission on copyright. With respect to copies or phonorecords publicly distributed by authority of the copyright owner bfore the effective date of the Berne Convention Implementation Act of 1988, the omission of the copyright notice described in sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if -- (1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice. (b) Effect of omission on innocent infringers. Any person who innocently infringes a copyright, in reliance upon an authorized copy or phonorecord from which the copyright notice has been omitted and which was publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, incurs no liability for actual or statutory damages under section 504 [17 USC S 504] for any infringing acts committed before receiving actual notice that registration for the work has been made under section 408 [17 USC S 408], if such person proves that he or she was misled by the omission of notice. In a suit for infringement in such a case the court may allow or disallow recovery of any of the infringer's profits attributable to the infringement, and may enjoin the continuation of the infringing undertaking or may require, as a condition or permitting the continuation of the infringing undertaking, that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the court. /* We now return to the text of the statute which has not changed since adoption. */ (c) Removal of notice. Protection under this title [17 USC SS 101 et seq.] is not affected by the removal, destruction, or obliteration of the notice, without the authorization of the copyright owner, from any publicly distributed copies or phonorecords. /* Therefore, if a person uploads a file and strips off the copyright noitce, that does not affect its status. */ S 406. Notice of copyright: Error in name or date /* The following was the text through October 31, 1988.*/ (a) Error in name. Where the person named in the copyright notice on copies or phonorecords publicly distributed by authority of the copyright owner is not the owner of copyright, the validity and ownership of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun -- (1) registration for the work had been made in the name of the owner of copyright; or (2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded. The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice. (b) Error in date. When the year date in the notice on copies or phonorecords distributed by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 301 [17 USC S 302] is to be computed from the year in the notice. Where the year date is more than one year later than the year in which publication first occurred, the work is considered to have been published without notice and is governed by the provisions of section 405 [17 USC S 405]. (c) Omission of name or date. Where copies or phonorecords publicly distributed by authority of the copyright owner contain no name or no date that could reasonably be considered a part of notice, the work is considered to have been published without any notice and is governed by the provisions of section 405 [17 USC S 405]. /* The following became effective October 31, 1988 */ (a) Error in name. Where the person named in the copyright notice on copies or phonorecords publicly distributed by authority of the copyright owner before the effecctive date of the Berne Convetion Implementation Act of 1988, where the person named in the copyright notice on copies or phonorecords publicbly is not the owner of copyright, the validity and ownership of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun -- (1) registration for the work had been made in the name of the owner of copyright; or (2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded. The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice. (b) Error in date. When the year date in the notice on copies or phonorecords distributed by authority of the copyright ownerbefore the effective date of the Berne Convention Implementation Act of 1988, is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 301 [17 USC S 302] is to be computed from the year in the notice. Where the year date is more than one year later than the year in which publication first occurred, the work is considered to have been published without notice and is governed by the provisions of section 405 [17 USC S 405]. (c) Omission of name or date. Where copies or phonorecords publicly distributed by authority of the copyright owner contain no name or no date that could reasonably be considered a part of notice, the work is considered to have been published without any notice and is governed by the provisions of section 405 [17 USC S 405]. S 407. Deposit of copies or phonorecords for Library of Congress (a) Except as provided by subsection (c), and subject to the provisions of subsection (e), the owner of copyright or of the exclusive right of publication in a work published with notice of copyright in the United States shall deposit, within three months after the date of such publication -- (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords. Neither the deposit requirements of this subsection nor the acquisition provisions of subsection (e) are conditions of copyright protection. (b) The required copies or phonorecords shall be deposited in the Copyright Office for the use or disposition of the Library of Congress. The Register of Copyrights shall, when requested by the depositor and upon payment of the fee prescribed by section 708 [17 USC S 708], issue a receipt for the deposit. (c) The Register of Copyrights may by regulation exempt any categories of material from the deposit requirements of this section, or require deposit of only one copy or phonorecord with respect to any categories. Such regulations shall provide either for complete exemption from the deposit requirements of this section, or for alternative forms of deposit aimed at providing a satisfactory archival record of a work without imposing practical or financial hardships on the depositor, where the individual author is the owner of copyright in a pictorial, graphic, or sculptural work and (i) less than five copies of the work have been published, or (ii) the work has been published in a limited edition consisting of numbered copies, the monetary value of which would make the mandatory deposit of two copies of the best edition of the work burdensome, unfair, or unreasonable. /* The Copyright Office has by regulation exempted computer programs from the deposit requirements. Source code is required instead of the usual deposit of 2 copies of the best edition. */ (d) At any time after publication of a work as provided by subsection (a), the Register of Copyrights may make written demand for the required deposit on any of the persons obligated to make the deposit under subsection (a). Unless deposit is made within three months after the demand is received, the person or persons on whom the demand was made are liable -- (1) to a fine of not more than $250 for each work; and (2) to pay into a specially designated fund in the Library of Congress the total retail price of the copies or phonorecords demanded, or, if no retail price has been fixed, the reasonable cost of the Library of Congress of acquiring them; and (3) to pay a fine of $2,500, in addition to any fine or liability imposed under clauses (1) and (2), if such person willfully or repeatedly fails or refuses to comply with such a demand. (e) With respect to transmission programs that have been fixed and transmitted to the public in the United States but have not been published, the Register of Copyrights shall, after consulting with the Librarian of Congress and other interested organizations and officials, establish regulations governing the acquisition, through deposit or otherwise, of copies or phonorecords of such programs for the collections of the Library of Congress. (1) The Librarian of Congress shall be permitted, under the standards and conditions set forth in such regulations, to make a fixation of a transmission program directly from a transmission to the public, and to reproduce one copy or phonorecord from such fixation for archival purposes. (2) Such regulations shall also provide standards and procedures by which the Register of Copyrights may make written demand, upon the owner of the right of transmission in the United States, for the deposit of a copy or phonorecord of a specific transmission program. Such deposit may, at the option of the owner of the right of transmission in the United States, be accomplished by gift, by loan for purposes of reproduction, or by sale at a price not to exceed the cost of reproducing and supplying the copy or phonorecord. The regulations established under this clause shall provide reasonable periods of not less than three months for compliance with a demand, and shall allow for extensions of such periods and adjustments in the scope of the demand or the methods for fulfilling it, as reasonably warranted by the circumstances. Willful failure or refusal to comply with the conditions prescribed by such regulations shall subject the owner of the right of transmission in the United States to liability for an amount, not to exceed the cost of reproducing and supplying the copy or phonorecord in question, to be paid into a specially designated fund in the Library of Congress. (3) Nothing in this subsection shall be construed to require the making or retention, for purposes of deposit, or any copy or phonorecord of an unpublished transmission program, the transmission of which occurs before the receipt of a specific written demand as provided by clause (2). (4) No activity undertaken in compliance with regulations prescribed under clauses (1) or (2) of this subsection shall result in liability if intended solely to assist in the acquisition of copies or phonorecords under this subsection. S 408. Copyright registration in general (a) Registration permissive. At any time during the subsistence of copyright in any published or unpublished work, the owner of copyright or of any exclusive right in the work may obtain registration of the copyright claim by delivering to the Copyright Office the deposit specified by this section, together with the application and fee specified by sections 409 and 708 [17 USC SS 409 and 708]. Subject to the provisions of section 405(a) [17 USC S 405(a)], such registration is not a condition of copyright protection. (b) Deposit for copyright registration. Except as provided by subsection (c), the material deposited for registration shall include -- (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work. Copies or phonorecords deposited for the Library of Congress under section 407 [17 USC S 407] may be used to satisfy the deposit provisions of this section, if they are accompanied by the prescribed application and fee, and by any additional identifying material that the Register may, by regulation, require. The Register shall also prescribe regulations establishing requirements under which copies or phonorecords acquired for the Library of Congress under subsection (e) of section 407 [17 USC S 407(e)], otherwise than by deposit, may be used to satisfy the deposit provisions of this section. (c) Administrative classification and optional deposit. (1) The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works. The administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title [17 USC S 408]. (2) Without prejudice to the general authority provided under clause (1), the Register of Copyrights shall establish regulations specifically permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and registration fee, under all of the following conditions -- (A) if each of the works as first published bore a separate copyright notice, and 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 was the same in each notice; and (B) if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published; and (C) if the application identifies each work separately, including the periodical containing it and its date of first publication. (3) As an alternative to separate renewal registrations under subsection (a) of section 304 [17 USC S 304(a)], a single renewal registration may be made for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, upon the filing of a single application and fee, under all of the following conditions: (A) the renewal claimant or claimants, and the basis of claim or claims under section 304(a) [17 USC S 304(a)], is the same for each of the works; and (B) the works were all copyrighted upon their first publication, either through separate copyright notice and registration or by virtue of a general copyright notice in the periodical issue as a whole; and (C) the renewal application and fee are received not more than twenty-eight or less than twenty-seven years after the thirty-first day of December of the calendar year in which all of the works were first published; and (D) the renewal application identifies each work separately, including the periodical containing it and its date of first publication. (d) Corrections and amplifications. The Register may also establish, by regulation, formal procedures for the filing an application for supplementary registration, to correct an error in a copyright registration or to amplify the information given in a registration. Such application shall be accompanied by the fee provided by section 708 [17 USC S 708], and shall clearly identify the registration to be corrected or amplified. The information contained in a supplementary registration augments but does not supersede that contained in the earlier registration. (e) Published edition of previously registered work. Registration for the first published edition of a work previously registered in unpublished form may be made even though the work as published is substantially the same as the unpublished version. S 409. Application for copyright registration The application for copyright registration shall be made on a form prescribed by the Register of Copyrights and shall include -- (1) the name and address of the copyright claimant; (2) in the case of a work other than an anonymous or pseudonymous work, the name and nationality or domicile of the author or authors, and, if one or more of the authors is dead, the dates of their deaths; (3) if the work is anonymous or pseudonymous, the nationality or domicile of the author or authors; (4) in the case of a work made for hire, a statement to this effect; (5) if the copyright claimant is not the author, a brief statement of how the claimant obtained ownership of the copyright; (6) the title of the work, together with any previous or alternative titles under which the work can be identified; (7) the year in which creation of the work was completed; (8) if the work has been published, the date and nation of its first publication; (9) in the case of a compilation or derivative work, an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered; (10) in the case of a published work containing material of which copies are required by section 601 [17 USC S 601] to be manufactured in the United States, the names of the persons or organizations who performed the processes specified by subsection (c) of section 601 [17 USC S 601(c)] with respect to that material, and the places where those processes were performed; and (11) any other information regarded by the Register of Copyrights as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright. S 410. Registration of claim and issuance of certificate. (a) When, after examination, the Register of Copyrights determine that, in accordance with the provisions of this title [17 USC SS 101 et seq.], the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title [17 USC SS 101 et seq.]. have been met, the Register shall register the claim and issue to the applicant a certificate of registration under the seal of the Copyright Office. The certificate shall contain the information given in the application, together with the number and effective date of the registration. (b) In any case in which the Register of Copyrights determines that, in accordance with the provisions of this title (17 USC SS 101 et seq.], the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal. (c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court. (d) The effective date of a copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office. S 411. Registration as prerequisite to infringement suit (a) Subject to the provisions of subsection (b), no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with this title [17 USC S 101 et seq.]. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue. (b) In the case of a work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission, the copyright owner may, either before or after such fixation takes place, institute an action for infringement under section 501 [17 USC S 501], fully subject to the remedies provided by sections 502 through 506 and 509 and 510 [17 USC SS 501-506, 509, 510], if, in accordance with requirements that the Register of Copyrights shall prescribe by regulation, the copy owner -- (1) serves notice upon the infringer, not less than ten or more than thirty days before such fixation, identifying the work and the specific time and source of its first transmission, and declaring an intention to secure copyright in the work; and (2) makes registration for the work within three months after its first transmission.