Copyright Notice Under the 1976 Act

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 60

Upon the effective date of the 1976 Copyright Act, January 1, 1978, the drastic consequences of failing to place a copyright notice on published works were initially ameliorated and ultimately eliminated altogether.

From January 1978 through February 1989, notice was still required, but neither mistakes in nor complete omission of notice thrust the work into the public domain, and reasonable steps could be taken by the copyright owner to preserve the copyright. Since March 1, 1989, when the Copyright Act was further amended in order to permit United States adherence to the Berne Convention, the notice requirement has been eliminated completely for works published on or after that date.

Chapter 3 of this monograph, dealing with duration of copyright, explained that the 1976 Act made a number of most significant changes bearing on the pertinence of formalities such as copyright notice. Under the 1976 Act, federal copyright attaches to a work immediately upon its "creation," i.e., its manifestation in a tangible medium of expression; common-law copyright is preempted and "publication" no longer serves as the dividing line between state and federal protection. Nonetheless, the federal protection that attaches once a work was fixed could-under the 1976 Act as originally enacted-be forfeited if, when the work wes later "published," proper copyright notice was omitted. (This omission could, however, be "cured" by timely action to register the copyright and to place notice on later-distributed copies.)

Both the act of "publication" and the requirement of notice thus continued to be significant under the 1976 Act.

"Publication"

Unlike the 1909 Copyright Act, the 1976 Act defines "publication"; it is the distribution of copies or phonorecords of a wcrk to the public by sale or o*her transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purS poses of further distribution, public performance, or public display also constitutes publication. "Publication" still requires an authorized distribution to the public, but the work may be distributed either in the form of "copies" that appeal to the eye or of "phonorecords" that appeal to the ear. Moreover, as was the case under the 1909 Act, neither public perS formance nor public display in itself constitutes the kind of publication that requires the use of a copyright notice. The statute also defines a "public" display or...