Formalities Under the 1909 Copyright Act

• Author: Robert A. Gorman
• Profession: University of Virginia School of Law
• Pages: 57

Because the drafters of the 1976 Copyright Act did not intend to restore to copyright works that had previously fallen into the public domain,[97] it becomes imperative to understand the somewhat Byzantine rules that had developed under the 1909 Act for purposes of determining when a work had been "published" so as to precipitate the requirement to place proper notice on copies of the work. Litigation taking place even in the twenty-first century will no doubt continue to bring before the federal courts claims that the plaintiff's copyright on a work created prior to January 1, 1978, was lost by failure to comply with the notice requirements of the 1909 Act.

Under the 1909 Act, a work that was kept unpublished could be protected by state law against unauthorized copying, performance or other exploitation. State common-law copyright afforded to the author (or the author's assignee) the right to publish a work for the first time. Once the work was published, state copyright protection was ousted, by virtue both of state law and of the federal statute. If such publication was accompanied by compliance with the federal statutory formalities-in particular the placement of proper notice on all copies distributed to the public-federal copyright protection was afforded. Section 10 of the 1909 Act provided that Any person entitled thereto by this title may secure copyright for his work by publication thereof with the notice of copyright required by this title; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor.

Once federal copyright attached, it would last for twenty-eight years from the date of publication, subject to renewal for another twenty-eight years.

If, however, the owner of common-law copyright published the work but failed to place a proper copyright notice on the distributed copies, this was generally regarded as fatal to the copyright. If the wrong name was placed in the notice (i.e., the name of someone other than the "proprietor" of copyright), or if the year of publication was materially inaccurate, or if either of those elements was omitted or the notice was omitted altogether, the work would be thrust irretrievably into the public domain. Moreover, if the notice-even though accurate in form and conspicuous-was placed on the work in a location other than that dictated by the statute, it could be expected that a court would hold that this...