§ 402. — Notice of copyright: Phonorecords of sound recordings.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC402]
TITLE 17--COPYRIGHTS
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
Sec. 402. Notice of copyright: Phonorecords of sound recordings
(a) General Provisions.--Whenever a sound recording 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 phonorecords of the sound
recording.
(b) Form of Notice.--If a notice appears on the phonorecords, it
shall consist of the following three elements:
(1) the symbol P (the letter P in a circle); and
(2) the year of first publication of the sound recording; and
(3) the name of the owner of copyright in the sound recording,
or an abbreviation by which the name can be recognized, or a
generally known alternative designation of the owner; if the
producer of the sound recording is named on the phonorecord labels
or containers, and if no other name appears in conjunction with the
notice, the producer's name shall be considered a part of the
notice.
(c) Position of Notice.--The notice shall be placed on the surface
of the phonorecord, or on the phonorecord label or container, in such
manner and location as to give reasonable notice of the claim of
copyright.
(d) Evidentiary Weight of Notice.--If a notice of copyright in the
form and position specified by this section appears on the published
phonorecord or phonorecords 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. 2577; Pub.
L. 100-568, Sec. 7(b), Oct. 31, 1988, 102 Stat. 2857.)
Historical and Revision Notes
house report no. 94-1476
A special notice requirement, applicable only to the subject matter
of sound recordings, is established by section 402. Since the bill
protects sound recordings as separate works, independent of protection
for any literary or musical works embodied in them, there would be a
likelihood of confusion if the same notice requirements applied to sound
recordings and to the works they incorporate. Like the present law,
therefore, section 402 thus sets forth requirements for a notice to
appear on the ``phonorecords'' of ``sound recordings'' that are
different from the notice requirements established by section 401 for
the ``copies'' of all other types of copyrightable works. Since
``phonorecords'' are not ``copies,'' there is no need to place a section
401 notice on ``phonorecords'' to protect the literary or musical works
embodied in the records.
In general, the form of the notice specified by section 402(b)
consists of the symbol ``P''; the year of first publication of the sound
recording; and the name of the copyright owner or an admissible variant.
Where the record producer's name appears on the record label, album,
sleeve, jacket, or other container, it will be considered a part of the
notice if no other name appears in conjunction with it. Under subsection
(c), the notice for a copyrighted sound recording may be affixed to the
surface, label, or container of the phonorecord ``in such manner and
location as to give reasonable notice of the claim of copyright.''
There are at least three reasons for prescribing use of the symbol
``P'' rather than ``'' in the notice to appear on phonorecords of sound
recordings. Aside from the need to avoid confusion between claims to
copyright in the sound recording and in the musical or literary work
embodied in it, there is also a necessity for distinguishing between
copyright claims in the sound recording and in the printed text or art
work appearing on the record label, album cover, liner notes, et cetera.
The symbol ``'' has also been adopted as the international symbol for
the protection of sound recordings by the ``Phonograms Convention'' (the
Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms, done at Geneva October 29,
1971), to which the United States is a party.
Amendments
1988--Subsec. (a). Pub. L. 100-568, Sec. 7(b)(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(b)(3), substituted ``If a
notice appears on the phonorecords, it'' for ``The notice appearing on
the phonorecords''.
Subsec. (d). Pub. L. 100-568, Sec. 7(b)(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.
Section Referred to in Other Sections
This section is referred to in sections 403, 404, 405 of this title.
