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statutory formalities

Notes:
    United States copyright law historically diverged from international norms over the formalities necessary to register a copyright. These formalities were relaxed in the 1976 Copyright Act and again in 1988 Amendments to adhere to the Berne Convention.

    A work's date of creation has bearing on what level of formality required for registration. Works published before 1978 had to bear a prescribed notice of copyright or the work went into the public domain. The notice consists of: a copyright word or symbol, the name of copyright owner, and the date. Works created after 3/1/89 do not need to notice copyright owner.

    Notice. Needs to be in an obvious location. Some compilations notice individual contributions separately, but a single notice can cover an entire compilation.

    Registration. Requires filing forms and submitting fees to the U.S. Copyright Office. The process is relatively simple, requiring a short form, the deposit of two copies of the work, and payment of a $20 fee. The Copyright office does not pass substantive judgment on the application and deposit copies. Remember the Copyright Office does not grant copyrights (which subsist at time of creation).

    Deposit. Registrant must submit copies of work for the Copyright Office and the Library of Congress.

    The test of publication used in the ACADEMY AWARDS case is based on the 9th Circuit's earlier decision WHITE v. KIMMEL (9th Cir. 1952) (Publication is limited and does not trigger registration requirements where work distributed to a "definitely selected group" for a "limited purpose").

    Registration creates a presumption of validity. This is useful to the Academy of Motion Pictures because they registered the Oscar in 1941 (although they first awarded the Oscar in 1929), many years before Creative House Promotions started producing their award.

    Note that performance is not publication. For example, a melody is recorded as sheet music because a sound recording is a "captured performance" and does not protected in the same manner as fixed copy. A movie that is displayed but never sold or rented to the public is treated the same way. Consider whether this creates a perpetual copyright in unpublished music and movies.
    BE: I think the 1976 Act's elimination of common law copyright prevents an author from establishing a perpetual copyright.

    The 1976 Act attaches protection at the time work fixed in tangible form. The effect is to eliminate common law protection of unpublished works. The Act maintains notice requirements (although notice is not a prerequisite to registration). Some of these incentive to notice copyright remained through statutory amendments to comply with the Berne Convention, but no notice required on works produced after 1989. Per s210, initial ownership of copyrigh vests with the author (a default rule).

    More than five years have passed since the cure provisions of the 1976 Act have been superceded by the Amendments to comply with the Berne Convention.

    Innocent infringement in cases where original work did not give proper notice of copyright. A later author does not have an affirmative obligation to search registry for copyright notice. This defense allows infringer to mitigate damages (it does not relieve liability, that's a separate issue).

    Where damages of infringement are unclear, a plaintiff may seek fixed statutory damages.

    A derivative work that's properly noticed may not give subsequent author proper warning that the underlying subject matter of the derivative work is still protected by copyright (in the case of licensed derivative works).

    A stricter notice requirement applies to works that fall under the 1909 Copyright Act. Per s10 of the 1909 Act, if owner's name did not appear in the notice of copyright, protection lapses and the work enters the public domain. Faced with technical formalities, some courts constructed alternative doctrines to protect works produced with defective notice, (e.g., implicit beneficial ownership).

    A plaintiff does not have standing to sue without registering his work with the U.S. Copyright Office. Salinger's registration of unpublished letters prior to bringing suit against unauthorized biographer is an example. Unless the work is registered prior to the infringement, the plaintiff cannot recover statutory damages or attorney's fees. So there are still important incentives to register.

    There have been legislative attempt to repeal s411 and s412 (requiring registration to sue for infringement), but blocked by press fearful of infringement actions for publishing unregistered documents.

    Under the 1909 Act, failure to deposit work could void copyright ownership. That's no longer true but there are still incentive to deposit work.


Issues:
    What does "publication" mean? Consider an author's work undergoing editorial revision. It was not defined in the 1909 Act and case law did not establish a bright line. Limited distribution not considered publication because it's sometimes helpful to share ideas.

    Is the threshold of publication distribution to the public? Consider KING v. MISTER MAESTRO, INC. (SDNY, 1963) where District Court held that Martin Luther King's "I Have a Dream" speech not published despite widespread distribution to press and large audience observing performance because the speech was not released in writing to the public.

    Is a notice requirement useful? Should there be an incentive for authors to provide notice of copyright on their works? Is a registration system preferable to allow authors to determine the copyright status of works?
    DZ: The clear establishment of copyright ownership through a central registry is a prerequisite to an efficient bargaining system. The search for the copyright owner is a transaction cost which prevents efficient bargaining.

    An author may not know the copyright status of a particular work he is considered to use as raw material for a derivative work. Can the original author assert rights against later author if the original work gave no notice of copyright? Under s405, there is a five-year grace period in which the original author has the opportunity to cure the omission of notice. If the original work given to magazine which failed to give notice of copyright, the original author may have claim against publisher under contract law.

    Does the requirement to register for copyright before instituting an action for copyright infringement violate the Berne Convention? Note that under the Berne Convention, registration is not a prerequisite to an infringement action.

    Is a deposit requirement useful? Consider sensitive information like secure tests and computer software that might be violated if available through deposit in Copyright Office and Library of Congress. Is there something wrong with establishing a copyright but keeping the contents of the work unknown? (The Copyright Office does allow it). One justification for the deposit requirement is to build the collection of the Library of Congress.


Statutory References:
    s101: Definitions: "publication"
    s201: Ownership of copyright
    s404: Notice of copyright: Contributions to collective works
    s405: Notice of copyright: Omission of notice of certain copies and phonorecords
    s406: Notice of copyright: Error in name or date on certain copies and phonorecords
    s407: Deposit of copies or phonorecords for Library of Congress
    s408: Copyright registration in general
    s409: Application for copyright registration
    s410: Registration of claim and issuance of certificate
    s411: Registration and infringement actions
    s412: Registration as prerequisite to certain remedies for infringement


Regulations:

Practice Guides:

Illustrative Cases:
    Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc. (9th Cir. 1991)
    Were Oscar statuettes published without registration? Company producing "star" award argues the Oscar was published (but not registered) and now belongs to the public domain: they were transferred to winners without restrictions; many producers used two-dimensional reproduction to advertise their movies; the award was publically displayed at the award ceremony. But 9th Circuit holds that the Oscar was not published: it was given to a limited audience for a limited purpose.

    Twin Books Corp. v. Walt Disney Co. (9th Cir. 1996)
    Foreign publication without proper notice does not affect the copyrightability of a work under the 1909 Act.

    Hasbro Bradley, Inc. v. Sparkle Toys, Inc. (2d Cir. 1985)
    Defendant copies toys action figures manufactured and distributed in Japan without copyright notice. The court holds that even an intentional omission of copyright notice is curable and plaintiff's notice of copyright on toys produced in United States subsequent to omission has retroactive effect for the entire production period.