Copyright laws (an analysis)
Under the present copyright law, copyright exists in original works of authorship created and fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly, or indirectly with the aid of a machine or device. In other words, copyright is an incident of creative authorship not dependent on statutory formalities. Thus, registration with the Copyright Office generally is not required, but there are certain advantages that arise from a timely registration.
The 1909 Copyright Act and the 1976 Copyright Act as originally enacted required a notice of copyright on published works. For most works, a copyright notice consisted of the symbol , the word "Copyright," or the abbreviation "Copr.," together with the name of the owner of copyright and the year of first publication. For example: " Joan Crane 1994" or "Copyright 1994 by Abraham Adams."
For sound recordings published on or after February 15, 1972, a copyright notice might read "(P) 1994 XYZ Records, Inc."
Advance permission from, or registration with, the Copyright Office is not required before placing a copyright notice on copies of the work or on phonorecords of a sound recording. Moreover, for works first published on or after January 1, 1978, through February 28, 1989, omission of the required notice, or use of a defective notice, did not result in forfeiture or outright loss of copyright protection.
Works Already in the Public Domain
Neither the 1976 Copyright Act, the Berne Convention Implementation Act of 1988, the Copyright Renewal Act of 1992, nor the Sonny Bono Copyright Term Extension Act of 1998 will restore protection to works that fell into the public domain before the passage of the laws. However, the North American Free Trade Agreement Implementation Act (NAFTA) and the Uruguay Round Agreements Act (URAA) may restore copyright in certain works of foreign origin that were in the public domain in the United States. Under the copyright law in effect prior to January 1, 1978, copyright could be lost in several situations. The most common were publication without the required notice of copyright, expiration of the first 28-year term without renewal, or final expiration of the second copyright term. The Copyright Renewal Act of 1992 automatically renews first term copyrights secured between January 1, 1964, and December 31, 1977.
Scope of Exclusive Rights under Copyright
The present law has changed and enlarged in some cases the scope of the copyright owner's rights. The new rights apply to all uses of a work subject to protection by copyright after January 1, 1978, regardless of when the work was created.
Absence of Copyright Notice
For works first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright. For works first published before March 1, 1989, the copyright notice is mandatory, but omission could have been cured by registration before or within 5 years of publication and by adding the notice to copies published in the United States after discovery of the omission. Some works may contain a notice, others may not. The absence of a notice in works published on or after March 1, 1989, does not necessarily indicate that the work is in the p ublic domain.
No notice of copyright was required on the copies of any unpublished work. The concept of "publication" is very technical, and it was possible for a number of copies lacking a copyright notice to be reproduced and distributed without affecting copyright protection.
In the case of works seeking ad interim copyright, copies of a copyrighted work were exempted from the notice requirements if they were first published outside the United States. ["Ad interim copyright" refers to a special short term of copyright available to certain pre-1978 books and periodicals.]
The 1909 statute preserved copyright protection if the notice was omitted by accident or mistake from a "particular copy or copies."
A valid copyright was not secured if someone deleted the notice and/ or p ublished the work without authorization from the copyright owner.
Reproductions of sound recordings usually contain two different types of creative works: the underlying musical, dramatic, or literary work that is being performed or read and the fixation of the actual sounds embodying the performance or reading. For protection of the underlying musical or literary work embodied in a recording, it is not necessary that a copyright notice covering this material appear on the phonograph records or tapes on which the recording is reproduced. As noted above, a special notice is required for protection of the recording of a series of musical, spoken, or other sounds that were fixed on or after February 15, 1972. Sound recordings fixed before February 15, 1972, are not eligible for federal copyright protection. The Sound Recording Act of 1971, the present copyright law, and the Berne Convention Implementation Act of 1988 cannot be applied or be construed to provide any retroactive protection for sound recordings fixed before February 15, 1972. Such works, however, may be protected by various state laws or doctrines of common law.