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02G copyright notice: defects which are permissable

Where to Look in the Law

1909 Act: §20
1947 Act: §21
1976 Act: §405(a)

“That where the copyright proprietor has sought to comply with the provisions of this Act with respect to notice, the omission by accident or mistake of the prescribed notice from a particular copy or copies shall not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertaking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice”  (1909 Act §20; same point in 1947 and 1976 Acts)

The 1976 Act adds protection for copyright owners where “the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner’s authorization of the public distribution of copies or phonorecords, they bear the prescribed notice.”  (§405(a))

What the Courts Ruled


Emily Kimbrough Wrench vs Universal Pictures Co., Inc. et al

D.C.,S.D.N.Y. (1-18-1952) ¤ 104 F.Supp. 374.

“Plaintiff is well-known as a lecturer and author of several books and short stories.  Many of her works have appeared in leading magazines and some have been made into successful motion pictures.  Based on the theme of her experiences as a lecturer[,] plaintiff wrote several short stories recounting numerous amusing anecdotes.  The first, entitled, ‘My Heart’s In My Mouth,’ was published and copyrighted by the Atlantic Monthly in June, 1944; the second, a story entitled ‘Luggage For the South,’ was published and copyrighted in May, 1945 by the New Yorker magazine; the third story, entitled ‘Cincinnati and I,’ was not published until October, 1948.  It was the picture rights to these three stories which were specifically sold to Universal by contract of April 22, 1948.

“Following the making of the contract, plaintiff wrote nine additional stories.  These plaintiff had contracted to sell Universal before they were written.  Six of them were published and copyrighted in the New Yorker, prior to November; four were written but were not published in any magazine.  In November, 1948, the book It Gives Me Great Pleasure was published by Dodd, Mead.

“Deriving its title from the first story it contained the book collected as chapters under their original titles but with revisions, the eight stories previously published and copyrighted by the Atlantic Monthly and the New Yorker magazines, and the four unpublished stories… .

“The copyright notice affixed to the reverse of the front or fly leaf of the book reads: ‘Copyright, 1945, 1948 by Emily Kimbrough.’  There appears beneath this a further notation that several of the chapters (named) ‘originally appeared in somewhat different form as stories in the New Yorker.’  Neither ‘1944,’ the year of the Atlantic Monthly copyright of the chapter entitled ‘My Heart’s In My Mouth,’ nor the fact that it had once appeared in that magazine as a story is mentioned… .

“At the time the book was published the record owner of title to the copyright on the story, ‘My Heart’s In My Mouth’ was the Atlantic Monthly.  Since it retained no interest in the story after its first publication in that magazine, the Atlantic Monthly readily reassigned the copyright to plaintiff upon her request… .

“Early in 1949, in anticipation of its obligation to pay plaintiff on April 22, 1949, the $25,000. due under contract, Universal had the title to the copyright searched.  Upon examination of the results of this search, Universal questioned the sufficiency of the notice of copyright in the book… . [I]t elected to and did rescind the contract on the ground that the copyright was ‘incorrect and insufficient.’”

“In the contract plaintiff agreed that she would protect and preserve the copyright on the property sold and to be sold from coming into the public domain so far as might be legally possible, by affixing to each ‘copy or arrangement of said work or any part thereof published or offered for sale any notice necessary for copyright protection in the United States or necessary for like protection under the laws of other countries.’  Plaintiff undertook that as each story was published with proper copyright notice she would duly register the same ‘wheresoever its protection so requires.’”

“It is the contention of Universal that this republication [of ‘My Heart’s In My Mouth’] was without sufficient copyright notice, and it is urged that this story is now in the public domain.

“The notice of copyright it is claimed is faulty and insufficient because (1) the year ‘1945’ is claimed as the year of the prior copyright and that this is in fact a later year than the actual year of the copyright on the chapter ‘My Heart’s In My Mouth,’ the correct year being ‘1944’; and (2) the existing copyright for this chapter was not owned by plaintiff as claimed, for in fact the Atlantic Monthly was the record owner.

“In sum, then, the position of Universal is that a substantial portion of the property, the subject matter of the contract, has lost copyright protection and has fallen into the public domain, and even if this be not so, that the faulty notice of copyright has created a ‘cloud on the title’ to the property and has rendered it ‘unmarketable.’

“We conclude that the copyright on the property is valid and that no part of it has fallen into the public domain… .

“If the story published and copyrighted in 1944 had been republished and copyrighted alone and without change in 1948 with no mention of the 1944 copyright, it would have fallen into the public domain.  This would be so because ‘the substitution of the name of an assignee in a notice of copyright prior to the recordation of the assignment, results in an abandonment of the copyright’, and the recital of a date later than the actual copyright date invalidates the copyright for the reason that it attempts to extend the copyright protection for longer than the statutory period.

“But we agree with plaintiff that here this was not the result, for it was not an instance of a republication of the same work at a later date.  The revision of the original story ‘My Heart’s In My Mouth’ we find after comparison to be substantial and sufficient to constitute it a new work.  In addition, it has been republished in chapter form as an integral part of a book which undisputably contains substantial new matter and which as a new work under Section 7 of the Copyright Law 17 U.S..C.A. § 7 is entitled to separate copyright… .  The publication of a new work with its own copyright notice dispenses with the necessity of listing any prior copyright in order to protect it… . Since the only copyright date necessary to protect the property is 1948, the insertion of ‘1945’ in the copyright notice in the book was superfluous.  There is no merit to Universal’s contention that this unnecessary notation of the 1945 copyright imposed a duty on plaintiff of also reciting the 1944 copyright…

“[I]rregularities in the copyright application standing alone do not effect the validity of the copyright, where, as here, there has been compliance with the statute.”


Glenco Refrigeration Corp. vs Rae-Tone Commercial Refrigeration Corp and Victor Manufacturing Corp.

USDC E.D.Penn (3-26-1957) ¤ 149 F.Supp. 691, 113 USPQ 155, Civ. A. No. 2292

A copyright notice had this wording: “© 1955 G.R.C.  Printed in U.S.A.”  Separated from this by blank space (1 inch above, 3 inches right) were these additional lines:
    Refrigeration Corp.
    Philadelphia 34, Pa.”

This notice was deemed compliant with the requirements.


Uneeda Doll Co. vs Goldfarb Novelty Co.

USCA 2nd Cir. (3-9-1967) ¤ 373 F.2d 851

The defendant’s “Mini-Doll” had been copied from the plaintiff’s “Pee Wee” doll.  The defendant contended that the “Pee Wee” doll was without a valid copyright notice.  The notice given on the doll’s foot was “U.D. Co., Inc © 1965”.  The notice on the cardboard display package for that doll was “© Uneeda Doll Co., Inc 1966”.  The Court ruled that the two notices “read in conjunction… satisfies the [notice requirements] of section 19”.




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