Copyright: Its History and Its Law

The general provisions as to formalities are as follows (sec. 9): "That any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor, except in the case of books seeking ad interim protection under section twenty-one of this Act"; and (sec. 10): "That such person may obtain registration of his claim to copyright by complying with the provisions of this Act, including the deposit of copies, and upon such compliance the Register of Copyrights shall issue to him the certificate provided for in section fifty-five of this Act."

Publication

The definition in the act (sec. 62) of "the date of publication" as "the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority" defines publication, and the clause (sec. 9) requiring the copyright notice to be affixed to each copy "published or offered for sale in the United States by authority of the copyright proprietor" confirms the principle that the copyright proprietor cannot be held responsible, nor can copyright be voided because of copies "published," offered, sold or distributed without his authority. The Copyright Office Rules and Regulations (23) add to the definition of publication the parenthetical explanation: "(i. e., so that all persons who desire copies may obtain them without restriction or condition other than that imposed by the copyright law)." It is questionable, however, whether this explanation does not go beyond the letter of the law. In Stern v. Remick, in 1910, the U. S. Circuit Court protected the copyright of a song, though only one copy had been offered for sale and sold. Advance distribution to the trade or of review copies would not constitute publication. While the law does not prescribe first publication in this country, it is at least doubtful whether a book published in another country prior to publication here, unless protected by international copyright relations, has not fallen into the public domain and thus forfeited copyright protection here.

Copyright notice

The first step in securing copyright, being publication "with the notice of copyright" "affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor," the method and form of this notice is of first importance. The act of 1909 provides (sec. 18): "That the notice of copyright required by section nine of this Act shall consist either of the word 'Copyright' or the abbreviation 'Copr.,' accompanied by the name of the copyright proprietor, and 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. In the case, however, of copies of works specified in subsections (f) to (k), inclusive, of section five of this Act, the notice may consist of the letter C inclosed within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear. But in the case of works in which copyright is subsisting when this Act shall go into effect, the notice of copyright may be either in one of the forms prescribed herein or in one of those prescribed by the Act of June eighteenth, eighteen hundred and seventy-four."

Previous statutory form

Under the law of 1874, the prescribed notice was in the old form (Rev. Stat. 4962), "Entered according to Act of Congress, in the year ____, by A. B., in the office of the Librarian of Congress, at Washington," with the optional alternative of the form "Copyright, 18__, by A. B." Under the new code the latter form is preserved, with the alternative of the provision "Copr.," with date and name, but the longer form may be used on books copyrighted under the earlier acts, even if reprinted after the passage of the later act. Except for books previously copyrighted, the longer form is not now the legal notice, and its use would be dangerous, as it does not contain the specific word copyright, or its abbreviation, now made an obligatory part of the notice. While in Osgood v. Aloe in 1897, the omission of the name from the notice, though on the title-page, and in Record & Guide Co. v. Bromley in 1910, the omission of the date, though indicated by the date of the periodical in the line below, were held to void the copyright, such addition as the words "published by" has been held, as in Hills v. Hoover in 1905, a mere superfluity not voiding copyright.

Exact phraseology required

The exact phraseology and order of words must be followed, and it has been held that any inaccuracy in the name of the copyright proprietor, as in the English case of Low v. Routledge, by Vice-Chancellor Kindersley, in 1864, or in the date of the entry, as in the American case of Baker v. Taylor in 1848, when 1847 was put for 1846, makes the copyright invalid.

Name

The name in the copyright notice (C. O. Rule 24) must be the real name of a living person or of a firm or corporate body or the trade name in actual use, and may not be a pseudonym or pen-name or other make-believe. A copyright notice should not be in the name of one person for the benefit of another; the beneficiary's name should be the one printed. A publisher may take out a copyright for an author, however, in which case the publisher's name and not the author's name will be given, unless the publisher makes application as the agent of the author-claimant. The name in the copyright notice must correspond fully with the real name as given in the application, but an objection that N. Sarony instead of Napoleon Sarony was not the real name, was quashed in 1884, in Burrow-Giles Lith. Co. v. Sarony, by the U. S. Supreme Court.

Date

The date of copyright notice, being that of publication, should correspond with the imprint date on the original edition; but on later printings or editions, where the date of imprint is changed, the copyright notice would of course show the earlier date of the original edition. Thus a book first published in 1911 could not bear copyright notice of 1910 date, which would mean that copyright was registered before instead of after publication, which is not possible under the new law; nor should an edition of 1910 bear copyright notice of 1911, as the application and notice should state the actual year of publication; and the date of 1911 in imprint where the copyright notice is of 1910, would be correct only on a later edition, as above stated. A book may be printed, however, in a certain year and not published till a later year, in which case the copyright notice would be of later date than the imprint date; thus the Copyright Office registered in 1910, under the new law, a copyright on a work with the imprint of 1904, on assurance that though printed in 1904, the work was not actually published until 1910. Under the old law, where, as stated above, a copyright notice later than the actual copyright was disallowed as claiming protection beyond the copyright term, a later decision, in 1888, in Callaghan v. Myers, held, that where a copyright notice gave the year 1866, while the true date was 1867, there was no harm done to the public, because a year of the copyright, which really ended in 1895 instead of 1894, was given to the public, whereas in the previous case an additional year was claimed. Doubt was thrown upon this decision by Judge Wallace in Schumacher v. Wogram, also in 1888. In Snow v. Mast in 1895, the substitution for 1894 of the abbreviated '94, and in Stern v. Remick in 1910, the use of words or Roman numerals for Arabic, were upheld.

Accidental omission

An important safeguard, new in copyright law, is enacted in the provision (sec. 20): "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; and in a suit for infringement no permanent injunction shall be had unless the copyright proprietor shall reimburse to the innocent infringer his reasonable outlay innocently incurred if the court, in its discretion, shall so direct."

Place of notice

It is further provided (sec. 19): "That the notice of copyright shall be applied, in the case of a book or other printed publication, upon its title-page or the page immediately following, or if a periodical either upon the title-page or upon the first page of text of each separate number or under the title heading, or if a musical work either upon its title-page or the first page of music: Provided, That one notice of copyright in each volume or in each number of a newspaper or periodical published shall suffice."

Although the code of 1909 relieves the copyright proprietor from permanent forfeiture in the case of an accidental omission of the copyright notice from certain copies (sec. 20), the statute is otherwise specific, and there seems to be no means of relief where the copyright notice is, however innocently, in the wrong place or in the wrong form. Thus in 1909, in Freeman v. Trade Register, the U. S. Circuit Court held that where the copyright notice of a periodical appeared on the editorial page, which was not the first page of text, the copyright was voided. The copyright notice can probably, however, be placed safely and preferably on the first page, being the title-page, of a specially copyrighted part of a book, as an introduction preceding a non-copyright work or an index or appended notes, or upon specific illustrations; and this is perhaps preferable in copyrighting editions with such features of works otherwise in the public domain. In the case of articles in a periodical or parts of a composite work separately copyrighted or registered, the copyright notice should appear on the same page as the title heading.

One notice sufficient

The proviso (sec. 19) that one notice of copyright in each volume or in each number of a periodical shall suffice is complementary to the provision (sec. 3) by which a copyright protects all the copyrightable component parts of the work copyrighted, and gives to the proprietor of a composite work or periodical all the rights he would have if each part were individually copyrighted. It means that there need be no repetition of the general copyright notice on different portions of a book or periodical. In West Pub. Co. v. Thompson Co., under the old law, Judge Ward, in the U. S. Circuit Court of Appeals in 1910, overruled the defense that the copyright was not valid because the copyright notice did not repeat the several copyright notices originally protecting the several parts of the compilation; and this view, that the general copyright notice protects all copyrighted and copyrightable parts, is now specifically embodied in the statute.

Separate volumes

Different dates

The proviso (sec. 61) "that only one registration at one fee shall be required in the case of several volumes of the same book deposited at the same time" indicates that one copyright entry suffices for several volumes simultaneously published, but each separate volume should contain the notice. Volumes published separately, not only in successive years but at successive dates within the year, should be separately registered, and if published separately in successive years, must each bear its copyright notice for the year of publication – this being the direct sequence from the provision that copyright runs from the specific date of publication and not from the year or date of registration. The Copyright Office will, however, under the law, register for one fee volumes or parts deposited at the same time, though published at various times. In the case of a book issued in successive parts, of which only the first part includes a title-page or title headings, the law is not specific; but it seems probable that, in default of copyright notice and registration for each part, the parts not bearing copyright notice might be legally reprinted, and that the safer course is to place the copyright notice on the first page of each part and register each part separately, in which case the completed work should have the date or dates of the year or years within which the several parts were published. There seem to be no objections, within the law or from court decisions, to coupling two dates in the same notice, in such cases as "Copyright, 1910, 1911, by A. B.," though there is no specific decision on this point. Under the previous law a book published in more than one volume or part, the portions not complete in themselves, was probably protected by copyright entry of the first part, all parts being of course ultimately deposited; but the change in the new code basing copyright on publication with notice, seems to change this rule of practice. In the case of Dwight v. Appleton, in 1840, it was held that as the statute did not expressly prescribe that the copyright notice should appear in successive volumes after the first, this was not necessary; but the application of this doubtful decision under the new code would be more than questionable.

Notice part of initial step

It may be emphasized that publication with notice is the first step in copyright under the new code, and that registration on deposit is the secondary and completing act, and therefore that no registry in the Copyright Office is necessary to authorize the printing of the copyright notice, as was formerly the case.

Extraterritorial notice

The requirement (sec. 9) that the notice of copyright "shall be affixed to each copy published or offered for sale in the United States by authority of the copyright proprietor" makes clear what was a subject of dispute under the old law. The courts, however, generally held that extraterritorial notice of copyright, i. e. on foreign editions, was impracticable and unnecessary; and this view is specifically adopted in the new code. In 1905, in Harper v. Donohue, it was held by Judge Sanborn, in the U. S. Circuit Court, that the omission of the American copyright notice from an English edition could not vitiate copyright here, especially in view of the prohibition in the law of the importation of foreign-made copies of copyright works. In 1908, in Merriam v. United Dictionary Co., it was held by the U. S. Supreme Court, through Justice Holmes, that even where the omission of the notice on a foreign-made edition was with the assent of the American copyright proprietor, there was no waiver of copyright in this country.

Successive editions

In the case of successive printings or editions of a copyrighted book, the original copyright entry must appear in every reprint of the first edition; and it would seem that this entry should also appear in every new edition newly copyrighted, as well as the new notice, so long as it is desired to protect the matter contained in the old edition. Judge Clifford, in the U. S. Circuit Court, in Lawrence v. Dana, in 1869, ruled this to be superfluous; but his decision is contrary to the rule that a proprietor may not claim through the copyright notice a longer term than the law permits, since a later date, referring only to new matter, but apparently comprehensive of the whole contents, might be voided under this rule. It is doubtful whether on a new edition with old and new matter one copyright notice with two dates is safe, and the wiser course is to give both the earlier copyright notice and the later notice in proper sequence. In the case of new printings of works published and copyrighted prior to July 1, 1909, no new notice or application is required unless there is added material to be additionally protected and constituting to that extent a new work, in which case a new application and the deposit of two copies is necessary.

False copyright notice

Provision is specifically made against false notice of copyright by the enactment (sec. 29): "That any person who, with fraudulent intent, shall insert or impress any notice of copyright required by this Act, or words of the same purport, in or upon any uncopyrighted article, or with fraudulent intent shall remove or alter the copyright notice upon any article duly copyrighted shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars and not more than one thousand dollars. Any person who shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country, or who shall knowingly import any article bearing such notice or words of the same purport, which has not been copyrighted in this country, shall be liable to a fine of one hundred dollars," and the importation of any article bearing a notice of copyright when no American copyright exists is absolutely prohibited (sec. 30).

Ad interim protection

It should be noted that the copyright notice is not required on books published abroad in the English language before publication in this country, entered for ad interim copyright, and therefore that within sixty days after the publication abroad of a book in the English language, such book may be protected by American registration, though containing no notice of copyright; and within this period inquiry at the Copyright Office is necessary to determine the status of the book.

Substitution of name

It is provided (sec. 46): "That when an assignment of the copyright in a specified book or other work has been recorded the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act." This applies only where the entire copyright has been assigned and the assignment duly recorded in the Copyright Office as provided by law, and does not permit a change of name in the copyright notice under any other circumstances, as partial assignment. Substitution without authority of law voids copyright, as was held in Record & Guide Co. v. Bromley in 1910, where another trade name of the copyright claimant was substituted for the original trade name.

Registration

The method of registration, or rather of application therefor, is not specified in the law, for the reason that under the code of 1909 deposit succeeding publication is made the act completing the securing of copyright, and registration is incidental thereto instead of the first requisite. Under the old law it was decided in the U. S. Circuit Court through Judge Colt, in Gottsberger v. Estes, that publication before deposit of copies voided the copyright.

Rules and regulations

The act provides (sec. 53): "That, subject to the approval of the Librarian of Congress, the Register of Copyrights shall be authorized to make rules and regulations for the registration of claims to copyright as provided by this Act," and (sec. 54) "whenever deposit has been made in the Copyright Office of a copy of any work under the provisions of this Act, he shall make entry thereof."

Application

It is provided (sec. 5): "That the application for registration shall specify to which of the [stated] classes the work in which copyright is claimed belongs," but it is also provided "nor shall any error in classification invalidate or impair the copyright protection." In Green v. Luby, in 1909, the U. S. Circuit Court protected a vaudeville sketch, though classified as a dramatic instead of a dramatico-musical copyright, against infringement by a mimic performance.

Certificate

It is further provided (sec. 55): "That in the case of each entry the person recorded as the claimant of the copyright shall be entitled to a certificate of registration under seal of the Copyright Office, to contain his name and address, the title of the work upon which copyright is claimed, the date of the deposit of the copies of such work, and such marks as to class designation and entry number as shall fully identify the entry. In the case of a book the certificate shall also state the receipt of the affidavit as provided by section sixteen of this Act, the date of the completion of the printing, or the date of the publication of the book, as stated in the said affidavit. The Register of Copyrights shall prepare a printed form for the said certificate, to be filled out in each case as above provided for, which certificate, sealed with the seal of the Copyright Office, shall, upon payment of the prescribed fee, be given to any person making application for the same, and the said certificate shall be admitted in any court as prima facie evidence of the facts stated therein. In addition to such certificate the Register of Copyrights shall furnish, upon request, without additional fee, a receipt for the copies of the work deposited to complete the registration."

Application requirements

The application is in general in simple form, and care should be taken in filling out the card that the space at the top intended for use by the Copyright Office should be left blank. The application must be signed with the name and address of the copyright claimant, who may be the author or his representative, as where his publisher is taking out the copyright. In the case of works made for hire, the employer may make application as author. The name of the author should be given on the line provided for that purpose, even though the name of the author as claimant is also given above; but in the case of anonymous or pseudonymous works, the name of the author is not required. The title should be given exactly as on the title-page of the book or on the work, and the other particulars called for in the application should be exactly as indicated by the work itself. The day of publication must be exactly stated, and the application cannot be made, therefore, until after publication. Provision is also made on the card for the name and address of the person to whom the certificate of registration is to be sent and of the remitter of the fee, and in the case of books, the application must be accompanied by the affidavit made either on the reverse of the application card or on the separate card also provided. In applications, as for foreign or ad interim copyright, where the nationality of the author should be stated, information as to citizenship, not race, is required. A person naturalized in the United States is defined as an American. A foreign author claiming copyright because of residence, must state that he is a "permanent resident" of the United States (C. O. Rule 29).

Illustrations

The illustrations of a book may be separately registered, and if by lithographic or photo-engraving process must also have affidavit of manufacture in this country.

Maps and charts are classed with works of art, and the formalities in respect to these, as well as in respect to dramatic and musical compositions, are treated specifically in the chapters on those specific subjects.

Periodicals

In respect to periodicals, application should be made as for books, but no affidavit is required; separate registration is necessary for each number published, with notice of copyright, and can be made only after publication. It is not possible to register the title of the periodical in advance of publication. (C. O. Rule 36.) Two deposit copies of periodicals are required; but a contribution to a periodical separately registered requires the deposit of only one copy of the periodical. The entire copy should be sent, as a mere clipping does not comply with the statute. (C. O. Rule 37.) The date of publication of a periodical is not necessarily the printed date of issue, and the actual day of publication should be stated in the application, whether for the registration of the periodical itself or a contribution to it.