when it was published, and the other party
anything about copyright, so he failed to
failed to do so.
CHAPTER 4 | CORRECTING OR CHANGING COPYRIGHT NOTICE OR REGISTRATION | 99
Although copyright protection is not lost
Exception #4: Works Published
under these circumstances, the copyright
Outside the United States
owner cannot collect any damages from
innocent infringers—that is, people who
Works published outside the United States
infringed the owner’s copyright without
between January 1, 1978 and March 1,
knowing it due to the lack of notice. However, 1989 had to have a copyright notice, just as the copyright owner is entitled to sue the
works published in the United States did.
party who failed to provide the notice for
Foreign works lacking such notice entered
any damages caused by the lack of notice.
the public domain in the United States
To prevent infringement from occurring
unless one of the three exceptions discussed
in the future, the copyright owner should
above applied. However, as a result of the
see to it that the errors in the notice are
GATT Agreement, an international trade
corrected in any subsequent printings or
agreement, the U.S. copyright in most of
other uses of the work.
these works was automatically restored
effective January 1, 1996. (See Chapter 12,
EXAMPLE: In 1987, Mavis signed a contract
“International Copyright Protection.”)
with Hackneyed Publications to publish
her book. The contract contained a clause
requiring Hackneyed to include a proper
Works Published Before 1978
copyright notice on the book when it was
All works published in the United States
published. Somehow, the notice was left
before January 1, 1978 had to have a
off of over 90% of the copies Hackneyed
valid copyright notice. If they lacked
published in 1988. Marty copied several
chapters from the book in the good-faith
a valid notice, such works entered the
belief that it was not copyrighted due to the public domain unless one of the following
lack of a copyright notice. Mavis’s copyright
exceptions applied.
is not invalidated due to the omission, but
The copyright owner of any pre-1978
she won’t be able to collect damages from
work saved from the public domain because
Marty. Mavis should get her publisher to
one of these exceptions applies should place
add a notice to all new copies of her book
a valid copyright notice on the work if it is
and attempt to provide proper notice to
reprinted. This is not mandatory, but will
those who have purchased copies lacking
provide the important benefits discussed in
notice. Mavis should also consider suing
Chapter 2.
Hackneyed for the damages she otherwise
could have gotten from Marty.
100 | THE COPYRIGHT HANDBOOK
Notice Omitted by Licensees
process or similar mechanical error—for
example, lack of notice was excused where
Works licensed to anyone before 1978 do not the printing matrix on which a copyright
enter the public domain for lack of notice
notice appeared was damaged. ( Strauss v.
simply because the licensee (the publisher or Penn Printing & Publishing Co., 220 F. 977
other company or person) fails to include a
(E.D. Pa. 1915).) Negligence or ignorance of
valid copyright notice in the work.
the notice requirement did not qualify.
This is because several courts have held
This exception has rarely been success-
that when such a license is entered into, the ful y invoked. But even if it does apply, it licensee impliedly agrees (that is, agrees
only works against a person who copied the
without explicitly saying so) that it will
work involved after actual y knowing it was
take whatever steps necessary to protect the still protected by copyright. It may not be copyright rights retained by the copyright
invoked against a person who was innocently
owner/licenser. This, of course, includes
misled by the omission of the notice into
placing a valid copyright notice on all
believing the work was in the public domain.
published versions of the work so that it will
not enter the public domain for lack of such
notice. If a licensee fails to live up to this
Works Published Outside
implied promise, the courts have held that
the United States
the unnoticed publication has been made
Courts have held that works published
without the copyright owner’s authority and outside the United States before 1978
therefore doesn’t place the work into the
without a copyright notice did not enter the
public domain. ( Fantastic Fakes v. Pickwick public domain in the United States. ( Twin International, 661 F.2d 479 (5th Cir. 1981).) Books Corp. v. Walt Disney Co., 83 F.3d 1162
(9th Cir. 1996).) But, if such a foreign work
Notice Omitted by Accident or Mistake was later published in the United States
before 1978, it did have to comply with U.S.
There is another much more limited
notice requirements. Failure to do so injected
exception to the rule that works published
the work into the public domain unless one
before 1978 without a valid copyright notice of the exceptions discussed above applied.
are in the public domain. This is where the
However, the copyright in most such public
copyright owner failed to provide notice
domain works was automatical y restored
on a particular copy or copies by accident
effective January 1, 1996 as a result of the
or mistake. Accident or mistake meant
GATT agreement, an international trade
that there was an accident in the printing
agreement discussed in detail in Chapter 12.
CHAPTER 4 | CORRECTING OR CHANGING COPYRIGHT NOTICE OR REGISTRATION | 101
Types of Errors or Omissions That
Sometimes the copyright symbol is not
Invalidate a Copyright Notice
in the proper form—for example, where
the letter “c” is not completely surrounded
Obviously, if the work contains no
by a circle. A letter “c” surrounded by
copyright notice at all, the requirement for parenthesis, a hexagon, or some other
a notice has not been satisfied. However,
geometric form is likely acceptable. But use
some published works contain some, but
of the letter “c” alone would likely render
not all, of the required elements for a valid the notice invalid.
notice. If the omissions or errors in the
notice are serious enough, the notice will
not be legally valid. A copy with an invalid Error in Publication Year
notice is treated just the same as if it has
The notice must also contain the date the
no notice at all.
; work was published. The date can be in either
A valid copyright notice contains three
Arabic or Roman numerals. A notice without
elements: (1) the copyright symbol or
a date is invalid. In addition, a copyright
the word “copyright,” (2) the publication
notice with a publication date more than
date, and (3) the copyright owner’s name.
one year in the future, that is, more than one
These elements don’t have to appear in any
year after the actual date of publication, is
particular order (although they are usually
treated as if it had no notice at al . This is so
in the order listed here).
even if only a small number of copies were
In the past, courts were very strict about
distributed with the defective notice.
enforcing complex rules concerning the format
and placement of copyright notices. Today,
EXAMPLE: Isaac’s book was first published
however, they tend to be much more lenient.
in 1987, but the copyright notice lists 1989
as the publication date. The notice is invalid.
A notice must contain a truly serious error or
omission for the copyright to be invalidated.
On the other hand, where the publication
The following errors or omissions will
date is for any year prior to the actual
render a notice invalid.
publication date, the notice’s validity is not
affected. However, the year stated in the
Lack of or Error in Copyright Symbol
notice becomes the official legal publication
date for copyright duration purposes.
A copyright notice must contain either
the copyright symbol “©,” or the words
EXAMPLE: Abraham’s book was first
“Copyright” or “Copr.” Absence of all of
published in 1948, but the copyright notice
lists 1946 as the publication date. The notice
these renders the notice invalid. Use of the
is valid, but 1946 is now considered the date
word “Copyrighted,” though technically
of publication for purposes of computing
incorrect, is also acceptable.
the duration of Abraham’s copyright.
102 | THE COPYRIGHT HANDBOOK
Lack of (or Errors in) Name
Why a Supplemental
The name of the copyright owner must
Registration Should Be Filed
also be included in the notice or it will be
(When Appropriate)
deemed invalid. Major errors in the name in If you ever become involved in copyright
a copyright notice—using the wrong name litigation, your registration certificate
for example—will invalidate the notice.
(which is simply a copy of your basic
Minor spelling or other errors in a name
registration application form stamped and
in a notice do not affect the copyright’s
returned to you by the Copyright Office)
validity. For example: Misspelling John
will be submitted into evidence to prove
Smith’s name as “John Smythe” in a
the existence of your copyright. It could
copyright notice would not affect the
prove embarrassing, and possibly harmful
copyright’s validity. Nor is it necessary
to your case, if the certificate is found to
to use the owner’s full legal name. Use of
contain substantial errors, is unclear, or
a surname alone or a surname with first
is ambiguous or if important facts have
initial is sufficient.
changed since you registered. For this
reason, you should file a supplemental
Part II:
registration to correct significant errors
in your certificate or to reflect important
Dealing With Errors
factual changes.
or Changes Affecting
Also, remember that your registration
Copyright Registration:
is a public record. By keeping your
Supplemental Registration
registration accurate and up-to-date, you
will make it easier for those searching the
As discussed in Chapter 3, the same pub-
Copyright Office records to discover your
lished work normally can be registered only work and locate you. This may result in
once with the Copyright Office. However,
new marketing opportunities and help to
a second supplemental registration may
prevent an infringement.
be necessary to augment your original
basic registration if you later discover that
you forgot something important, if you
Corrections
supplied the Copyright Office with the
A supplemental registration should be filed
wrong information, or if important facts
to correct significant errors that occurred at
have changed. A special form, Form CA, is the time the basic registration was made,
used for this purpose. Part II of this chapter and that were overlooked by the Copyright shows you when a supplemental registration Office. This includes:
is appropriate and how to accomplish it.
CHAPTER 4 | CORRECTING OR CHANGING COPYRIGHT NOTICE OR REGISTRATION | 103
• identifying someone incorrectly as the Amplifications and Changes
author or copyright claimant of the work
• registering an unpublished work as
For the same reasons discussed above, file a
published, or
supplemental registration to:
• inaccurately stating the extent of the
• reflect important changes in facts
copyright claim.
that have occurred since the basic
Errors in these important facts could cast
registration was made
doubt upon the validity and duration of
• provide additional significant informa-
your copyright and will needlessly confuse
tion that could have been provided in
and complicate copyright litigation. They
the original application but was not, or
will also confuse anyone searching the
• clarify or explain information in the
Copyright Office records. Correct them as
basic registration.
soon as you discover them.
If you have changed your address
Supplemental Registration Not
File a supplemental registration to change
Needed to Correct Obvious Errors the
the address listed on your certificate. It is
Copyright Office Should Have Caught
not legally necessary for you to keep your
address current in the Copyright Office’s
It is not necessary to file a formal supple-
records. However, by doing so you will
mental registration to correct obvious
make it easy for people who want to use
errors the Copyright Office should have
your work to locate you and arrange for
caught when it reviewed your application.
permission and compensation. The harder
This includes, for example, the omission of
you are to locate, the more likely it is that
necessary information, such as the author
your copyright will be infringe
d.
or claimant’s name, and obvious mistakes
like listing an impossible publication date—
If an author or copyright claimant was omitted
for instance, 1012. If, when you receive
your registration certificate, you discover
All the authors and copyright claimants
that such errors have been overlooked by
must be listed in the registration. (See
the copyright examiner, simply notify the
Chapter 3, “Copyright Registration.”) This
Copyright Office and the mistake will be
means a supplemental registration should
corrected with no need for a supplemental
be filed if an author or copyright claimant’s
registration and additional fee.
name was omitted.
104 | THE COPYRIGHT HANDBOOK
EXAMPLE: Jack and Jill coauthored
the form, cal ing for information regarding
a children’s book. Jill completed the
derivative works. This registration would only
registration form, but later discovered that
protect the new material Karen added to her
she had forgotten to list Jack as a coauthor.
book; it would not protect the preexisting
A supplemental registration should be filed
material that Karen never previously
to add Jack’s name.
registered or described in her application.
Karen should file a supplemental registration
Change in claimant’s name
to change the claim to “entire text”; she
should also describe the preexisting material
A supplemental registration should be made
and new material added to this derivative
where the name of the copyright claimant
work. This will ensure that all the work she
has changed for reasons other than a
did will be protected by the registration.
transfer of ownership.
Change in title of the registered work
When Supplemental Registration
File a supplemental registration if you changed Is Not Appropriate
the title of the registered work without chang-
Some types of errors should not be corrected
ing its content. However, if the content of the by supplemental registration. And supplework is changed, a new registration will have
mental registration may not be used to reflect
to be made (see below).
some types of factual changes.
Nature of authorship needs clarification
Changes in Copyright Ownership
In some cases, it is a good idea to file a
The Copyright Handbook Page 19