§ 401. — Notice of copyright: Visually perceptible copies.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC401]
TITLE 17--COPYRIGHTS
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
Sec. 401. Notice of copyright: Visually perceptible copies
(a) General Provisions.--Whenever a work protected under this title
is published in the United States or elsewhere by authority of the
copyright owner, a notice of copyright as provided by this section may
be placed on publicly distributed copies from which the work can be
visually perceived, either directly or with the aid of a machine or
device.
(b) Form of Notice.--If a notice appears on the copies, it shall
consist of the following three elements:
(1) the symbol (the letter C in a circle), or the word
``Copyright'', or the abbreviation ``Copr.''; and
(2) the year of first publication of the work; in the case of
compilations, or derivative works incorporating previously published
material, the year date of first publication of the compilation or
derivative work is sufficient. The year date may be omitted where a
pictorial, graphic, or sculptural work, with accompanying text
matter, if any, is reproduced in or on greeting cards, postcards,
stationery, jewelry, dolls, toys, or any useful articles; and
(3) the name of the owner of copyright in the work, or an
abbreviation by which the name can be recognized, or a generally
known alternative designation of the owner.
(c) Position of Notice.--The notice shall be affixed to the copies
in such manner and location as to give reasonable notice of the claim of
copyright. The Register of Copyrights shall prescribe by regulation, as
examples, specific methods of affixation and positions of the notice on
various types of works that will satisfy this requirement, but these
specifications shall not be considered exhaustive.
(d) Evidentiary Weight of Notice.--If a notice of copyright in the
form and position specified by this section appears on the published
copy or copies to which a defendant in a copyright infringement suit had
access, then no weight shall be given to such a defendant's
interposition of a defense based on innocent infringement in mitigation
of actual or statutory damages, except as provided in the last sentence
of section 504(c)(2).
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2576; Pub.
L. 100-568, Sec. 7(a), Oct. 31, 1988, 102 Stat. 2857.)
Historical and Revision Notes
house report no. 94-1476
A requirement that the public be given formal notice of every work
in which copyright is claimed was a part of the first U.S. copyright
statute enacted in 1790, and since 1802 our copyright laws have always
provided that the published copies of copyrighted works must bear a
specified notice as a condition of protection. Under the present law the
copyright notice serves four principal functions:
(1) It has the effect of placing in the public domain a
substantial body of published material that no one is interested in
copyrighting;
(2) It informs the public as to whether a particular work is
copyrighted;
(3) It identifies the copyright owner; and
(4) It shows the date of publication.
Ranged against these values of a notice requirement are its burdens
and unfairness to copyright owners. One of the strongest arguments for
revision of the present statute has been the need to avoid the arbitrary
and unjust forfeitures now resulting from unintentional or relatively
unimportant omissions or errors in the copyright notice. It has been
contended that the disadvantages of the notice requirement outweigh its
values and that it should therefore be eliminated or substantially
liberalized.
The fundamental principle underlying the notice provisions of the
bill is that the copyright notice has real values which should be
preserved, and that this should be done by inducing use of notice
without causing outright forfeiture for errors or omissions. Subject to
certain safeguards for innocent infringers, protection would not be lost
by the complete omission of copyright notice from large numbers of
copies or from a whole edition, if registration for the work is made
before or within 5 years after publication. Errors in the name or date
in the notice could be corrected without forfeiture of copyright.
Sections 401 and 402 set out the basic notice requirements of the
bill, the former dealing with ``copies from which the work can be
visually perceived,'' and the latter covering ``phonorecords'' of a
``sound recording.'' The notice requirements established by these
parallel provisions apply only when copies or phonorecords of the work
are ``publicly distributed.'' No copyright notice would be required in
connection with the public display of a copy by any means, including
projectors, television, or cathode ray tubes connected with information
storage and retrieval systems, or in connection with the public
performance of a work by means of copies or phonorecords, whether in the
presence of an audience or through television, radio, computer
transmission, or any other process.
It should be noted that, under the definition of ``publication'' in
section 101, there would no longer be any basis for holding, as a few
court decisions have done in the past, that the public display of a work
of art under some conditions (e.g., without restriction against its
reproduction) would constitute publication of the work. And, as
indicated above, the public display of a work of art would not require
that a copyright notice be placed on the copy displayed.
Subsections (a) of both section 401 and section 402 require that a
notice be used whenever the work ``is published in the United States or
elsewhere by authority of the copyright owner.'' The phrase ``or
elsewhere,'' which does not appear in the present law, makes the notice
requirements applicable to copies or phonorecords distributed to the
public anywhere in the world, regardless of where and when the work was
first published. The values of notice are fully applicable to foreign
editions of works copyrighted in the United States, especially with the
increased flow of intellectual materials across national boundaries, and
the gains in the use of notice on editions published abroad under the
Universal Copyright Convention should not be wiped out. The consequences
of omissions or mistakes with respect to the notice are far less serious
under the bill than under the present law, and section 405(a) makes
doubly clear that a copyright owner may guard himself against errors or
omissions by others if he makes use of the prescribed notice an express
condition of his publishing licenses.
Subsection (b) of section 401, which sets out the form of notice to
appear on visually-perceptible copies, retains the basic elements of the
notice under the present law: the word ``Copyright'', the abbreviation
``Copr.'', or the symbol ``''; the year of first publication; and the
name of the copyright owner. The year of publication, which is still
significant in computing the term and determining the status of a work,
is required for all categories of copyrightable works. Clause (2) of
subsection (b) makes clear that, in the case of a derivative work or
compilation, it is not necessary to list the dates of publication of all
preexisting material incorporated in the work; however, as noted below
in connection with section 409, the application for registration
covering a compilation or derivative work must identify ``any
preexisting work or works that it is based on or incorporates.'' Clause
(3) establishes that a recognizable abbreviation or a generally known
alternative designation may be used instead of the full name of the
copyright owner.
By providing simply that the notice ``shall be affixed to the copies
in such manner and location as to give reasonable notice of the claim of
copyright,'' subsection (c) follows the flexible approach of the
Universal Copyright Convention. The further provision empowering the
Register of Copyrights to set forth in regulations a list of examples of
``specific methods of affixation and positions of the notice on various
types of works that will satisfy this requirement'' will offer
substantial guidance and avoid a good deal of uncertainty. A notice
placed or affixed in accordance with the regulations would clearly meet
the requirements but, since the Register's specifications are not to
``be considered exhaustive,'' a notice placed or affixed in some other
way might also comply with the law if it were found to ``give reasonable
notice'' of the copyright claim.
Amendments
1988--Subsec. (a). Pub. L. 100-568, Sec. 7(a)(1), (2), substituted
``General provisions'' for ``General requirement'' in heading, and ``may
be placed on'' for ``shall be placed on all'' in text.
Subsec. (b). Pub. L. 100-568, Sec. 7(a)(3), substituted ``If a
notice appears on the copies, it'' for ``The notice appearing on the
copies''.
Subsec. (d). Pub. L. 100-568, Sec. 7(a)(4), added subsec. (d).
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any cause
of action arising under this title before such date being governed by
provisions in effect when cause of action arose, see section 13 of Pub.
L. 100-568, set out as a note under section 101 of this title.
Compliance With Predecessor Notice Provisions; Copies Distributed After
Dec. 31, 1977
Section 108 of Pub. L. 94-553 provided that: ``The notice provisions
of sections 401 through 403 of title 17 as amended by the first section
of this Act [sections 401 through 403 of this title] apply to all copies
or phonorecords publicly distributed on or after January 1, 1978.
However, in the case of a work published before January 1, 1978,
compliance with the notice provisions of title 17 either as it existed
on December 31, 1977, or as amended by the first section of this Act, is
adequate with respect to copies publicly distributed after December 31,
1977.''
Section Referred to in Other Sections
This section is referred to in sections 403, 404, 405 of this title.
