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03B copyright notice correction
SEE ALSO: Section 02G: Copyright notice: defects which are permissable.
1909 Act: §20
1947 Act: §21
1976 Act: §405(a)(2)
“The 1976 Copyright Act attempted to ameliorate the strict consequences of failure to include notice under prior law. It contained provisions that set out specific corrective steps to cure omissions or errors in notice. Under these provisions, an applicant had 5 years after publication to cure omission of notice or certain errors. Although these provisions are technically still in the law, their impact has been limited by the Berne amendment making notice optional for all works published on and after March 1, 1989. There may still be instances, such as the defense of innocent infringement, where the question of proper notice may be a factor in assessing damages in infringement actions.” (Information Circular 3)
“The omission of notice does not affect the copyright protection, and no corrective steps are required if the work was published on or after March 1, 1989. For works published between January 1, 1978, but before March 1, 1989, no corrective steps are required if:
“1. The notice is omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or
“2. The omission violated an express written requirement that the published copies or phonorecords bear the prescribed notice.” (Information Circular 3)
Piermont Mills Inc. had distributed to Penney wholesale fabrics which did not have a copyright notice. Rex Curtain contended that this “was a dedication of the copyright” and that P. Kaufman, Inc. “forfeited its copyright.” The judge believed otherwise. “[T]here hasn’t been any distribution to the public … in a manner which a statute is intended to cover.” And he noted actions taken by plaintiff: “A sticker will be placed on the wrapper which is a transparent wrapper … . [P]rotection is not affected if there is removal of the sticker without the authorization of the co[p]yright owner.”
One manufacturer of curtains sued a competitor for infringing the patterns woven onto the curtains. Apparently Beacon copied Lichtenberg’s designs, assuming them to be in the public domain, then sued the originator whom Beacon itself had copied.
Lichtenberg contended that it had taken steps to remedy their laxness concerning copyright notices. “Prior to November 16, 1982, no curtain panels embodying [the litigated] design which were publicly distributed for sale by defendant had any copyright notice… . Lichtenberg asserts that because it was aware that a copyright was available,… its omission of notice… must be viewed as unintentional…” This Court found this claim “untenable”.
Lichtenberg failed to convince that it diligently sought to correct the error: “As Alan Lichtenberg testified, defendant has sold to its retailing customers approximately 900,000 panels in the past nine months [yet] ordered and sent out […] 50,000 pressure-sensitive labels bearing the copyright notice without ascertaining the quantity of curtains [which retailers] still held in inventory. [Such lack of effort] speaks to the inadequacy of [Lichtenberg’s] efforts.” Lichtenberg lost.
Cases Summarized in Other Sections
|Scandia House Enterprise Inc. vs Dam Things Establishment (launch this) concerns dolls which had inadequate copyright notice when there was notice, and with too many distributed to be corrected.
United Thrift Plan, Inc. vs National Thrift Plan, Inc. (launch this) involves a badly-placed notice that was on too many copies on which no effort had been made to correct.
The Copyright Registration and Renewal Information Chart and Web Site
© 2007 David P. Hayes