Copyright 101, Part III

After I posted yesterday's blog, I had a couple of emails asking me to define "notice." Sorry. I should have thought of that before.

First, the daily disclaimer: I am not an attorney and am not pretending to be one here. The information contained in my blogs on this subject are based on my own practical experience and on information gleaned from research. If you have a copyright issue, consult the U.S. Copyright Office at www.copyright.gov/ or a copyright attorney.

Okay, notice. Let's start with the definition the U.S. Copyright Office gives: "A copyright notice is an identifier placed on copies of the work to inform the world of copyright ownership."

Copyright notice consists of three elements: the "c" in a circle (©), the year of first publication, and the name of the owner of copyright. An example would be: ©2003 John Doe. Again, please note that date is the year of first PUBLICATION, not the year you created the work.

"Use of a copyright notice was once required as a condition of copyright protection." A copyright notice is no longer legally required to secure copyright on works. Your work is now protected from the moment you fix it in an tangible medium of expression.

Although the copyright notice is now optional, it does provide some legal benefits. First of all, because prior law DID contain a copyright notice requirement, the use of the notice is still relevant to the copyright status of older works.

"Works published before January 1, 1978, are governed by the previous copyright law. Under that law, if a work was published under the copyright owner's authority without a proper notice, all copyright protection for that work was permanently lost in the United States."

The 1988 Berne Convention Implementation Act amended the copyright law to make the use of the notice optional on copies of works published after March 1, 1989.

Another way in which the copyright notice is still relevant is that it informs the public that the work is protected by copyright and identifies the owner and the date of first publication. That prevents anyone from using your work and then claiming an "innocent infringement defense."

Use of the notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the U.S. Copyright Office.

You often hear agents or others saying that putting a copyright notice on a work marks a writer as a amateur or newbie. This is because the copyright notice only applies to PUBLISHED works. However, it's worthwhile to take a look at the definition of publication and to consider how to protect unpublished works.

"The 1976 Copyright Act defines publication as 'the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending.' The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office.

"The copyright notice has never been required on unpublished works. However, because the dividing line between a preliminary distribution and actual publication is sometimes difficult to determine, the copyright owner may wish to put a copyright notice...to indicate that rights are claimed." An appropriate notice for an unpublished work might be: Unpublished work ©2004 Jane Doe.

Next week, we'll take a look at "fair use."