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02K copyright notice ambiguities concerning movies
If you’ve come to this page because you were reading the chart page on copyright notice, you have already read that:
After movies become eligible for copyright protection in 1912, motion picture photoplays were a separate classification (class “(l)”) in copyright law from photographs (class “(j)”) and dramatic compositions (class “(d)”), yet copyright notice form for motion pictures was governed by the generic rules for all works: “either of the word ‘Copyright’ or the abbreviation ‘Copr.’, accompanied by the name of the copyright proprietor”. Generic notice needn’t specify the year.
Moviemakers seem to have realized that they were affected by the passage in the Copyright Act stating that “if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication”. (1909 Act, §18) Film copies are called “prints” so the films may have faced challenged over the notices being inadequate for “printed … dramatic work”.
Many movie companies have opted to use the © symbol in their copyright notices in lieu of the word or abbreviation. The law allowed that “[i]n the case of copies of works specified in [classes] (f) to (k)… the notice may consist of the letter C enclosed within a circle, thus ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor.” Motion picture photoplays were class (l) and thus not within the group classes specified in the quoted passage, yet the group did include photographs (class “(j)”), and motion pictures are photographs, so it was reasonable to extend the policy to moving photographs.
The ambivalence of the Copyright Act insofar as how it required notice to be made on motion pictures, was not lost on the Register of Copyrights. The Register who held that office in 1938 wrote an open letter to the Librarian of Congress in which he stated:
It is to be observed, also that the statute contains no clearly defined provision with respect to the form and position of the notice for a motion picture or for a contribution to a periodical, and there has been a difference of opinion whether the notice may appear at the end of the reel or contribution instead of at the beginning.
Continuing to write under the header “Sections 18-19 — Notice of Copyright”, the Register wrote:
If these two sections could be worded so as to minimize the danger of loss of the copyright through inadequate notice, it would be a boon to the public and a saving of much time and correspondence to the Copyright Office. (Both quotations are from Letter to the Librarian of Congress concerning Certain Aspects of the Copyright Act of March 4, 1909 in their relation to the Public Interest and Existing Problems of Copyright Office Administration, dated September 17, 1938, signed by C.L. Bouvé.)
The Compendium of Copyright Office Practices is an internal document used by the Copyright Office to guide Office employees in their work. The 1970 edition states:
“The notice on a published motion picture should generally consist of ‘the word “Copyright,” the abbreviation “Copr.,” or the symbol ©, accompanied by the name of the copyright proprietor, and…the year in which the copyright was secured by publication.’
“A notice lacking the year date will be considered for registration either in Class L or Class M, but we caution the applicant that such a notice may not be adequate, especially in Class L.” (pg. 2-48, as 2.14.2, II a)
Elsewhere, the Compendium states:
“The year date must be included in the notice in any ‘printed literary, musical, or dramatic work.’ (17 U.S.C. § 19). It is required on works in Classes A, B, D, and E published in the United States. It is not required, so far as Title 17 is concerned, for Classes F-K. The Office will recommend use of the year date on motion pictures, Classes L and M; however, motion pictures without the year date may be accepted but a cautionary letter will be sent.” (pg. 4-27, in 4.2.4, I)
The Supreme Court hears about unpublished local television programs
The following is an excerpt from the transcript of oral argument in the case of Sony Corp. et al. v. Universal City Studios, Inc., et al., 464 U.S. 417 (1984). This exchange occurred in the United States Supreme Court on January 18, 1983. It addresses some points more likely to affect ephemeral television programs than works in other media: the fact that the master copy may be deliberately discarded even though copyright subsists.
STEPHEN A. KROFT, ESQ. [counsel arguing on behalf of Universal and Disney]: […] As soon as there’s creation of the copyrighted work, it’s protected by copyright. That copyright protection subsists even if there’s never even registration, for example.
CHIEF JUSTICE WARREN BURGER: Doesn’t that — does that go beyond the time when the copyright may be applied for?
MR. KROFT: Well, the — Your Honor, I think you — Mr. Justice, Chief Justice, you’re talking about, when you say “applied for,” you’re talking about registering the copyrighted work with the Copyright Office. Registration only affects certain remedies that a copyright owner may have. It does not affect the substance or the existence of the copyright.
For example, you must register the work before you can bring suit on it. But your inability to bring suit doesn’t mean that you lose your copyright and it doesn’t mean you lose your ability to object, to tell somebody, for example, that you don’t want them copying your product.
So I think Petitioner’s counsel is laboring under a bit of a misconception when he says that because some local stations with some of their material erase the only copies that they keep of their local television programming and therefore don’t register it — that doesn’t mean there’s no copyright protection. That copyright protection continues.
EDITOR’S NOTE: The preceding oral argument was given extemporaneously in answer and is subject to the inaccuracies inherent in verbal exchanges. However, as site editor, I have checked the above assertions against the texts of the Copyright Act and have found nothing in the law that contradicts them.
(A thorough summary of the Court’s decision in Sony v. Universal is available elsewhere on this web site.)
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© 2007, 2008 David P. Hayes