This is a Citations and Case Summaries page of the
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02D copyright notice: name
1909 Act: §18
1947 Act: §19
1976 Act: §§401, 402, 406(c)
Circular 3 “Copyright Notice”
Aloe Instrument Co. had pirated Osgood’s book How to Apply Matt, Bronze, La Croix, and Dresden Colors to China. However, the book contained the notice “Copyright, 1891. All rights reserved”. Although the title page indicated “Published by Osgood Art School, 1891” , this did not substitute for the missing claimant within the notice.
(The same two parties litigated over the same book two years later. See under deposit.)
A bust contained a copyright notice consisting of “‘the letter “C” in a circle accompanied by the initials of the copyright proprietor.’” Thousands were made, none any differently. “This is not compliance with the act.” The notice was not enough.
The Fleischer Studios, one of the most significant and successful makers of cartoon movies, sued after the defendant manufactured unauthorized dolls of Betty Boop, the star of scores of Fleischer shorts. Fleischer had already authorized dolls to be made by licensee Joseph P. Kallus, which had distributed “thousands of them.”
Freundlich “argues that the notice, in the form of ‘Betty Boop des. and copyrighted by Fleischer Studios’, which was placed upon the front of the doll’s skirt, was insufficient to comply with the statute,… in that it fails to use the correct name, Fleischer Studios, Inc., instead of Fleischer Studios…
“However, failure to add ‘Inc.’ to the name Fleischer Studios was not fatal to the notice as to the proprietor of the copyright. The omission in no way disguised the identity of the party who had registered the copyright. The notice as given disclosed the identity of the proprietor.”
(Another aspect of this case is under copyright notice on art works.)
illustration: Judge Manton described Betty Boop as “a certain female character having a unique and original face, pouting in baby fashion.” Betty Boop is a trademarked character of Hearst Holdings, Inc. (for King Features Syndicate). Miss Boop appears here in a frame from a public domain film.
Natasma Publishing secured copyright on The Romance of Money January 7, 1947. Material from the book appeared (without authorization) in Walter Winchell’s popular newspaper column in the New York Daily Mirror (owned by the Hearst Corp.) on or about January 2, 1948. Natasma assigned rights to Group Publishers May 18, 1948, the transfer being received by the Copyright Office May 20, 1948. Recordation allows substitution of the claimant in the copyright notice, according to Section 32 of the Copyright Law. Here, the bill of sale had been dated July 17, 1947, and delivered September 11, 1947, but the assignment not executed until May 18, 1948.
“Defendants are also entitled to prevail, as a matter of law, on the ground of substitution of the name, of an assignee in a notice of copyright prior to the recordation of the assignment, [which] results in an abandonment of the copyright and a dedication of the work to the public.” (The “also” refers to another issue in the defendants’ favor, it being so convoluted and irrelevant as to not warrant delineation here.)
The defendants were tried for attempts to “manufacture and sell ‘close copies’ of the plaintiff’s product Closet Caddy.” The product was a multi-part rack to save space in a closet. The plaintiff’s product had as its supposed notice “Copyright 1948” and this was followed by “Closet Caddy”, which nonetheless seemed to not be part of the notice. There weren’t any initials, mark, monogram or symbol. Nonetheless, the Court ruled that what was there was sufficient.
Hirson composed the music to “London Bells Will Ring Again” and his mother composed the words. On October 5, 1943, copyright was secured in the mother’s name. “Joseph Carlton, purportedly a publisher,” secured rights from them for three years, and “printed 2,500 copies of the song, each copy bearing the notice ‘Copyright 1944 by Joseph Carlton.’ About 2,000 of these copies were distributed to various persons in the music business.” These were “for ‘plugging’ [publicity] purposes… . Not a single copy was sold. No license or other permission was given to anyone to perform or otherwise use the song.” Those receiving a copy should have understood that any use of the music entailed “obtaining the proprietor’s license through the stated licensing agent.” Consequently, there wasn’t “such general publication as to vitiate appellant’s copyright.” (The wrong name on the notice did not invalidate copyright inasmuch as there wasn’t general publication and as an unpublished work it had been properly copyrighted, including deposit of a copy of the manuscript.)
The Milton Bradley Company copied Gelles-Widmer’s flashcards, incorrectly assuming that the cards had no copyrightable material. (Milton Bradley had itself developed a product which was rejected by the Copyright Office for this reason.) This is not the only argument Milton Bradley had after they went on to market their cards (under a different product name), and were sued.
“Defendants urge the copyrights in suit are invalid because plaintiff permitted the use of an improper copyright notice by School Aid Products Company on a small set of flash cards directed through another market distribution. The District Court found that School Aid Products Company had the same officers, employees, agents, directors and shareholders whose respective interests are the same as those of the officers, employees, agents, directs and shareholders of plaintiff… .
“We hold under the circumstances of this case, the use of the notice of copyright by School Aid Products Company did not invalidate plaintiff’s copyrights.”
When these two parties first litigated their grievances, the Court ruled, “‘TFC Co.©’ appearing on copyrighted work is not adequate notice of copyright since ‘TFC Co.’ is not name of proprietor, Tennessee Fabricating Co., nor the name by which proprietor is known, and proprietor’s full name does not appear elsewhere on work.”
On appeal, the Court overruled: “We do not agree with the district court’s literal application of 17 U.S.C.A. §19 to the facts of this case […] All of the plaintiff’s advertising in evidence bore the abbreviation.”
“In Herbert Rosenthal Jewelry Corp. v. Grossbardt, 436 F.2d 315, 317-319 (2 Cir. 1970), our latest discussion of questions like those raised here,… we pointed out that the 1954 amendment of the first sentence of § 19, made for another purpose, had the unintended effect of enabling copyright holders to argue that trademarks or initials could qualify under the first sentence, although the clear antinomy in the second sentence made it apparent that, in order to satisfy that, the full name must somewhere appear.”
With the preceding in mind, the decision goes on to report that in the current case the appellants allege that “defendant had become aware of the identity of ‘ARP’ [the claimant in the notice] before it allegedly copied the copyrighted statuettes… . [Such arguments] fail to take adequate account of the plaint language of § 10… . [F]ailure to state the name of the copyright holder [is] fatal even in the extreme case of an infringement action against a previous owner of the copyright which had transferred it to the plaintiff.” In this case, embossed on the back of each elf statuette was “additional markings, ‘presumably purporting to be the name, Angelo R. Puddu, but which I cannot decipher, even with the aid of a powerful reading glass.’… [T]he material embossed on the back ‘cannot be observed until the clothing is partially removed, no easy task for a male of the species who is unsophisticated in the fine arts of pinning brocade and other fabrics.’” (Quotes within quotes indicate where the Appeals court quoted the opinion of the district court judge.) The “additional markings” refer to “ARP ©”.
The Judge indicates that abbreviations in place of a full name on the notice can be acceptable, as decided in the Tennessee case where “TCF” was in the notice as the claimant, yet such a decision must rest on whether a claimant whose name is so abbreviated has established in its industry that they can be identified by the shorter name: “There is no corresponding proof with respect to ‘ARP.’” “On April 2, 1964, Puddu had filed with the New York County Clerk a certificate of doing business under the name of ‘ARP.’” That scarcely gave him standing in his industry. Although the infringement was for lines of products marketed in 1964 and 1965, after his filing of the “doing business” certificate, he was without the necessary standing.
Cases Summarized in Other Sections
|Sidney Hirson vs United Artists Corporation (launch this) had the notice for a song in the name of the agent rather than the songwriters.
American Vitagraph, Inc. (Lloyd V. Friedgen, Jr., and William J. Gleason) vs Ronald R. Levy, M.D. and Cinamco, Inc. (launch this) concerns a movie (Hooray for Hollywood) which named a copyright claimant other than the correct owner on the copyright notice in pre-release screenings prior to the general release. The copyright notice was correctly worded by the time the film went into general release, so the earlier lapse did not destroy the validity of the copyright. The verdict rested on whether the film had lost copyright prior to release, so the case is described under publication.
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© 2007 David P. Hayes