§ 406. — Notice of copyright: Error in name or date on certain copies and phonorecords.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC406]
TITLE 17--COPYRIGHTS
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION
Sec. 406. Notice of copyright: Error in name or date on certain
copies and phonorecords
(a) Error in Name.--With respect to copies and phonorecords publicly
distributed by authority of the copyright owner before the effective
date of the Berne Convention Implementation Act of 1988, where the
person named in the copyright notice on copies or phonorecords publicly
distributed by authority of the copyright owner is not the owner of
copyright, the validity and ownership of the copyright are not affected.
In such a case, however, any person who innocently begins an undertaking
that infringes the copyright has a complete defense to any action for
such infringement if such person proves that he or she was misled by the
notice and began the undertaking in good faith under a purported
transfer or license from the person named therein, unless before the
undertaking was begun--
(1) registration for the work had been made in the name of the
owner of copyright; or
(2) a document executed by the person named in the notice and
showing the ownership of the copyright had been recorded.
The person named in the notice is liable to account to the copyright
owner for all receipts from transfers or licenses purportedly made under
the copyright by the person named in the notice.
(b) Error in Date.--When the year date in the notice on copies or
phonorecords distributed before the effective date of the Berne
Convention Implementation Act of 1988 by authority of the copyright
owner is earlier than the year in which publication first occurred, any
period computed from the year of first publication under section 302 is
to be computed from the year in the notice. Where the year date is more
than one year later than the year in which publication first occurred,
the work is considered to have been published without any notice and is
governed by the provisions of section 405.
(c) Omission of Name or Date.--Where copies or phonorecords publicly
distributed before the effective date of the Berne Convention
Implementation Act of 1988 by authority of the copyright owner contain
no name or no date that could reasonably be considered a part of the
notice, the work is considered to have been published without any notice
and is governed by the provisions of section 405 as in effect on the day
before the effective date of the Berne Convention Implementation Act of
1988.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2578; Pub.
L. 100-568, Sec. 7(f), Oct. 31, 1988, 102 Stat. 2858.)
Historical and Revision Notes
house report no. 94-1476
In addition to cases where notice has been omitted entirely, it is
common under the present law for a copyright notice to be fatally
defective because the name or date has been omitted or wrongly stated.
Section 406 is intended to avoid technical forfeitures in these cases,
while at the same time inducing use of the correct name and date and
protecting users who rely on erroneous information.
Error in Name. Section 406(a) begins with a statement that the use
of the wrong name in the notice will not affect the validity or
ownership of the copyright, and then deals with situations where someone
acting innocently and in good faith infringes a copyright by relying on
a purported transfer or license from the person erroneously named in the
notice. In such a case the innocent infringer is given a complete
defense unless a search of the Copyright Office records would have shown
that the owner was someone other than the person named in the notice.
Use of the wrong name in the notice is no defense if, at the time
infringement was begun, registration had been made in the name of the
true owner, or if ``a document executed by the person named in the
notice and showing the ownership of the copyright had been recorded.''
The situation dealt with in section 406(a) presupposes a contractual
relation between the copyright owner and the person named in the notice.
The copies or phonorecords bearing the defective notice have been
``distributed by authority of the copyright owner'' and, unless the
publication can be considered unauthorized because of breach of an
express condition in the contract or other reasons, the owner must be
presumed to have acquiesced in the use of the wrong name. If the person
named in the notice grants a license for use of the work in good faith
or under a misapprehension, that person should not be liable as a
copyright infringer, but the last sentence of section 406(a) would make
the person named in the notice liable to account to the copyright owner
for ``all receipts, from transfers or licenses purportedly made under
the copyright'' by that person.
Error in Date. The familiar problems of antedated and postdated
notices are dealt with in subsection (b) of section 406. In the case of
an antedated notice, where the year in the notice is earlier than the
year of first publication, the bill adopts the established judicial
principle that any statutory term measured from the year of publication
will be computed from the year given in the notice. This provision would
apply not only to the copyright terms of anonymous works, pseudonymous
works, and works made for hire under section 302(c), but also to the
presumptive periods set forth in section 302(e).
As for postdated notices, subsection (b) provides that, where the
year in the notice is more than one year later than the year of first
publication the case is treated as if the notice had been omitted and is
governed by section 405. Notices postdated by one year are quite common
on works published near the end of a year, and it would be unnecessarily
strict to equate cases of that sort with works published without notice
of any sort.
Omission of Name or Date. Section 406(c) provides that, if the
copies or phonorecords ``contain no name or no date that could
reasonably be considered a part of the notice,'' the result is the same
as if the notice had been omitted entirely, and section 405 controls.
Unlike the present law, the bill contains no provision requiring the
elements of the copyright notice to ``accompany'' each other, and under
section 406(c) a name or date that could reasonably be read with the
other elements may satisfy the requirements even if somewhat separated
from them. Direct contiguity or juxtaposition of the elements is no
longer necessary; but if the elements are too widely separated for their
relation to be apparent, or if uncertainty is created by the presence of
other names or dates, the case would have to be treated as if the name
or date, and hence the notice itself had been omitted altogether.
References in Text
The effective date of the Berne Convention Implementation Act of
1988, referred to in text, is Mar. 1, 1989, see section 13 of Pub. L.
100-568, set out as an Effective Date of 1988 Amendment note under
section 101 of this title.
Amendments
1988--Pub. L. 100-568, Sec. 7(f)(4), substituted ``date on certain
copies and phonorecords'' for ``date'' in section catchline.
Subsec. (a). Pub. L. 100-568, Sec. 7(f)(1), substituted ``With
respect to copies and phonorecords publicly distributed by authority of
the copyright owner before the effective date of the Berne Convention
Implementation Act of 1988, where'' for ``Where''.
Subsec. (b). Pub. L. 100-568, Sec. 7(f)(2), inserted ``before the
effective date of the Berne Convention Implementation Act of 1988''
after ``distributed''.
Subsec. (c). Pub. L. 100-568, Sec. 7(f)(3), inserted ``before the
effective date of the Berne Convention Implementation Act of 1988''
after ``publicly distributed'' and ``as in effect on the day before the
effective date of the Berne Convention Implementation Act of 1988''
after ``section 405''.
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 101, 404 of this title.
