This chapter is about copyright notice. That's the "c" in a circle, followed by a publication date and name, usually seen on published works. The purpose of such a notice is to inform the public that a work is copyrighted, when it was published and who owns the copyright. Before March 1, 1989, a notice was required on all published works as a condition of keeping the copyright. For works published after that date, a notice is not required. Nonetheless, it's a very good idea to provide a notice anyway on all your published works.
The use of a copyright notice is the responsibility of the copyright owner and does not require any advance permission from, or registration with, the Copyright Office.
The extent to which you need to be concerned with the material in this chapter depends upon your particular situation.
Authors of books published by established companies As a practical matter, you don't have to worry much about the copyright notice if you're being published by an established publisher. The publisher, as a matter of course, will include copyright notices on all copies of the books they print and distribute. The author just needs to make sure that the information in the notice is correct.
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| Walt Whitman |
Freelance writers Freelance writers whose work appears in magazines and other periodicals are protected by the notice the publisher provides for the periodical as a whole. But some freelancers choose to include a separate notice on their work.
Self-published authors Persons who self-publish their work must compose and format their copyright notices themselves and should carefully read this chapter, as should those who work in the publishing field.
When Copyright Notice Is Required
Copyright notice is mandatory for some works and not for others, depending upon the date of publication.
1. Works Published Before 1978
Until 1978, all works published in the United States had to contain a valid copyright notice to be protected by copyright. Failure to provide the notice resulted in loss of the copyright in the work—that is, the work was injected into the public domain, meaning that anyone could copy or otherwise use it without the author's permission.
EXAMPLE: Bernie self-published his poetry collection in 1977. He knew nothing about copyright law and failed to provide a copyright notice on the work. Shirley finds a copy of the collection in a used bookstore in 2000 and decides to include several of Bernie's poems in a compilation of modern American poetry. Since the book did not contain a copyright notice, it is considered to be in the public domain and Shirley may reproduce all or part of it without Bernie's permission.
2. Works Published Between January 1, 1978, and March 1, 1989
As the example above illustrates, the pre-1978 notice requirement often had draconian results—authors could lose their copyright protection just because they failed to comply with a mere technical formality. The harshness of this rule was moderated somewhat by the Copyright Act of 1976, which provided that a work without a valid notice that was published after January 1, 1978, did not enter the public domain if—within five years after the publication—the work was registered with the Copyright Office and a reasonable effort was made to add a valid notice to all copies of the work distributed after the omission was discovered.
3. Works Published After March 1, 1989
The copyright notice requirement for published works ended altogether when the United States signed the Berne Convention, an international copyright treaty. All you need to know about it now is that it required the U.S. to get rid of its notice requirement, which happened on March 1, 1989. Any work printed after that date need not contain a copyright notice, even if it was originally published prior to that date.
EXAMPLE: George self-publishes a book in 1988. The work had to contain a valid copyright notice to be protected by copyright. He then reissues the book in 2000. The newly printed copies need not contain a copyright notice, but it is a good idea to provide one anyway (see below).
4. Special Rules for Foreign Works
Works by foreign citizens or residents published in foreign countries without a copyright notice from January 1, 1978, through March 1, 1989, entered the public domain under the law then in effect just like any other work. However, as a result of the GATT Agreement, an international trade agreement, the U.S. copyright in these works has been automatically restored effective January 1, 1996.
Why Provide a Copyright Notice on Published Works?
Even though a notice is not required for works printed after March 1, 1989, you should still make sure that a valid copyright notice appears on every copy of every work you publish. There are several excellent reasons for this.
1. Notice Makes Infringement Suits Economically Feasible
Authors and other copyright owners enforce their copyright rights by suing persons who copy their work or otherwise exercise their copyright rights without their permission. Unfortunately, copyright infringement litigation is usually very expensive (copyright attorneys usually charge at least $150 an hour). As a result, copyright infringement lawsuits may be economically feasible only if the author can obtain substantial damages (money) from the infringer.
The way to get substantial damages is to prove that the infringement was willful—that is, that the infringer knew that he was breaking the law but did so anyway. Courts usually award far more damages where the infringement was willful than where the infringer didn't realize what he was doing was wrong. (See Chapter 12, Copyright Infringement, for a detailed discussion of infringement suits.)
Proving willfulness can be difficult if a work lacks a valid copyright notice. The reason for this is what's known as the innocent infringement defense. If a person copies a published work that does not contain a copyright notice, the copier can claim in court that the infringement was innocent—that is, he or she
didn't know the work was protected by copyright. If the judge or jury believes this, the copier may still be liable for infringement, but the damages (monetary compensation) may be drastically reduced from what they otherwise would have been. On the other hand, if there is a valid copyright notice on the work, the infringer cannot claim innocence and will be treated as a willful infringer.
EXAMPLE 1: Mary self-publishes a book without a copyright notice. Izzy copies a substantial amount of it in a book of his own. Mary sues Izzy for copyright infringement. Mary proves to the court that she suffered $25,000 in damages due to the infringement. However, Izzy, while admitting that he copied Mary's work, claims that he did not realize it was copyrighted because it lacked a copyright notice. The judge buys Izzy's story, and as a result rules that Izzy need only pay Mary $5,000 in damages rather than the $25,000 required to fully compensate her.
EXAMPLE 2: Assume instead that Mary included a valid copyright notice in her book. She sues Izzy for copyright infringement. Since her book contained a valid notice, Izzy cannot argue that he did not realize the book was protected by copyright. As a result, Mary is awarded the full amount of damages required to fully compensate her—$25,000.
2. Copyright Notice May Deter Potential Infringers
Another important reason to place a copyright notice on all copies of your published work is that it may help deter copyright infringement. The notice lets readers know that the work is protected by copyright and may not be copied without the owner's permission. Moreover, since copyright notices appear on the vast majority of published works, a reader of a work not containing a notice might mistakenly assume that the work is not copyrighted, and feel free to copy it.
3. Notice Protects Your Work in Countries Not Adhering to the Berne Convention
There are about half a dozen countries that do not afford copyright protection to works not containing valid copyright notices. Providing a copyright notice on your work will enable your work to be protected in these countries.
| Tip |
Placing a copyright notice on your published work costs nothing and may end up saving you thousands of dollars by deterring others from copying your work and enabling you to recover your full measure of damages against those who do copy it. Always, always, always place a valid copyright notice on your published work!
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When to Provide Notice
A copyright notice should be included on a work when it is first published and on every subsequent published edition. A work is published for copyright purposes when it is made generally available to the public by the copyright owner or others acting with the owner's permission—a publisher, for example. It is not necessary to sell or otherwise transfer any copies of the work—publication occurs if the work is made available to the public without restriction. For example, leaving copies of a work in a public place would constitute publication, as would distributing copies on a busy street. But distributing copies to a restricted group would not constitute publication. Sending five copies of a manuscript to five publishers would not be a publication, nor would circulating copies to colleagues (a restricted group) for comment.
A copyright notice has never been required for unpublished works, and will not bar an infringer from raising the innocent infringement defense. But, under certain circumstances, it might be desirable to provide a notice on an unpublished manuscript.
Form of Notice
There are strict technical requirements as to what a copyright notice must contain. Follow these rules exactly or your notice may be found to be invalid and not accomplish its intended purpose. A valid copyright notice contains three elements:
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the copyright symbol
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the year in which the work was published
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the name of the copyright owner. It is not required that these elements appear in any particular order in the notice, but most notices are written in the order set forth above. We'll discuss each element in turn.
1. Copyright Symbol
You should use the familiar © symbol—that is, the lowercase letter "c" completely surrounded by a circle. The word "Copyright" or the abbreviation "Copr." are also acceptable in the United States, but not in many foreign countries. So if your work might be distributed outside the U.S., be sure to always use the © symbol.
2. Year of Publication
The copyright notice must also state the year the work was published. For first editions, this is easy. Put the year the work was actually published.
a. New versions
The copyright notice for a new version of a work must contain the date that version was published. The notice need not contain the date or dates of the prior version or versions. However, it is common practice to include such dates in the copyright notice. One reason is to let the reader know when the earlier versions were created. Another reason to do this is that it is not always easy to tell if a work qualifies as a new version under Copyright Office rules.
EXAMPLE: Sally Bowles published the first edition of her high school textbook on French in 2000. The copyright notice read "Copyright © 2000 by Sally Bowles." The book is revised and republished as a second edition in 2003. If the second edition qualifies as a new version, the notice need only state "Copyright © 2003 by Sally Bowles." However, Sally is not sure whether the changes she made were substantial enough to make the second edition a new version. She decides to err on the side of caution and writes the notice like this: "Copyright © 2000, 2003 by Sally Bowles."
b. Form of date
The date is usually written in Arabic numerals—for instance, "2003." But you can also use abbreviations of Arabic numerals—for instance, "’03"; Roman numerals—for instance, "III"; or spelled out words instead of numerals—for instance, "Two Thousand Three."
| Tip |
Copyright owners sometimes state the year of publication in Roman numerals in the hope readers won't be able to decipher it and will think the work more recent than it really is. However, dates not written in Arabic numerals may not be acceptable in some foreign countries.
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3. Copyright Owner's Name
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the author or authors of the work
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the legal owner of a work made for hire, or
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the person or entity (partnership or corporation) to whom all the author's exclusive copyright rights have been transferred.
a. Author or authors
Unless a work is made for hire (see below), the original author or authors own all the copyright rights. Where all these rights are retained, the author's name should appear in the copyright notice.
EXAMPLE: Eli Yale self-publishes a book on ivy gardening in 2003. Eli wrote the book himself and owns all the copyright rights. The copyright notice should state: "Copyright © 2003 by Eli Yale."
If there are multiple authors, they should all be listed in the copyright notice. The authors' names can appear in any order.
EXAMPLE: Joe Sixpack, Louis Loser and Benny Bigmouth write a book together about nuclear physics. All their names should appear in the copyright notice. For example: "Copyright © 2004 by Joe Sixpack, Louis Loser and Benny Bigmouth."
b. Works made for hire
A work made for hire is a work made by an employee as part of her job, or a work specially ordered or commissioned under a written work-for-hire contract. The writer's employer or other person for whom the work was prepared is the copyright owner and that person's (or entity's) name should appear in the copyright notice. The writer-employee's name should not be included in the notice.
EXAMPLE: Archie and Marion are technical writers employed by Datavue Publications, Inc. As part of their job, they write a technical manual that Datavue publishes. Only Datavue's name should appear in the copyright notice: "Copyright © 2004 by Datavue Publications."
c. Transferees
If all of the copyright rights owned by the author—or by the owner of a work made for hire—are transferred to another person or entity, that name should appear in the copyright notice on all copies printed and distributed after the transfer. However, any copies printed before the transfer occurred may be distributed without updating the notice.
EXAMPLE: Eli Yale self-publishes his book on ivy gardening in 2003. His name alone appears on the copyright notice. He prints 1,000 copies and by January 2004, 500 have been sold. In February 2004, Eli transfers his entire copyright in the book to Joe Harvard, the owner of a small bookstore. Joe is now the copyright owner. However, Joe can distribute the 500 unsold copies without updating the copyright notice they contain, even though the notice states that Eli is the copyright owner. But if Joe prints and distributes any new copies, his name alone should appear in the copyright notice.
The most common form of transfer of rights is by a writer to her publisher. A writer can sell all or part of her copyright rights to a publisher. This is a matter for negotiation. Trade book publishing contracts typically provide the publisher with an exclusive license to exercise the rights the publisher needs (for example, the right to publish the book in all Englishspeaking countries). In this event, the author's name should appear in the copyright notice, not the publisher's name, because the author has retained some of her copyright rights. Another approach, commonly used in textbook publishing, is for the author to transfer all his copyright rights to his publisher. Where this occurs, the publisher's name should appear in the notice.
d. Form of name
Usually, the owner's full legal name is used. However, it is permissible to use an abbreviation of the owner's name, a last name alone, a trade name, nickname, fictitious name, pseudonym, initials or some other designation as long as the copyright owner is generally known by the name or other words or letters used in the notice. For example, the novelist David Cornwell could use the pseudonym John le Carré (by which he is generally known), or the International Business Machines Corporation could use the abbreviation "IBM." However, if the author is generally known only by her full name, only that name should be used in the notice.
The word "anonymous" should not be used in a copyright notice because an author is obviously not generally known by that name. Likewise, it is not advisable to use a pseudonym by which you are not generally known. You can avoid revealing your name in a copyright notice, and still ensure the notice's validity, by transferring all of your copyright rights to your publisher. This way, the publisher's name may appear in the notice. Another approach would be to form a corporation, transfer your entire copyright to it, and then use the corporation's name in the notice.
If the copyright owner is a corporation, it is not necessary to include the word "Inc." in the name, even if this is part of the corporation's full legal name. Nor is it necessary for the word "by" to precede the copyright owner's name, although it is commonly used—for example, a notice can be written as "Copyright © 2004 by Joe Blow" or "Copyright © 2004 Joe Blow."
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