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Obtaining Copyright Protection

Copyright protection is automatic once an original expression is fixed in tangible form. Therefore, protection is simultaneous with the recording of the work. In the case of a book, copyright attaches as each sentence is typed on the wordprocessor. In the case of a performance, copyright attaches when the performance is recorded on paper, on videotape or on some other medium.

Since legislative implementation of the Berne Convention in 1989, it is no longer a requirement of protection in the U.S. that a copyright notice be affixed to a publication of the work.  However, providing notice prevents an infringer from being able to use a defense of innocent infringement. Further, under the Universal Copyright Convention ("UCC"), providing such notice is required.  There are some countries which are not members of the Berne Union, yet are members of the UCC.  Therefore, if one is concerned about international proteciton, providing notice is strongly recommended.

Copyright notice consists of any one, or all of the following:

  1. the symbol (c) (the letter C in a circle), or the word "Copyright", or the abbreviation "Copr."; and
  2. the year of first publication of the work; and
  3. the name of the owner of copyright in the work.

Therefore, an appropriate mark for Arty Author who published his work in 1996 would be:

(c) 1996 Arty Author

Alternatively, Arty could also use the date he created the work, say 1993, because this date is earlier than the publication date. A later date than the date of publication would be improper because it deceives the reader into believing that the copyright term is longer than it really is. Copyright notice is most often placed on the work immediately after its creation. However, because it is sometimes difficult to determine when the work was first published, it is not uncommon to indicate a year earlier than first publication in the copyright notice.

Where should notice be placed? Under the copyright law, there is no specific requirement. The law simply recommends that the notice be placed "in such manner and location as to give reasonable notice of the claim of copyright." Nevertheless the Register of Copyrights does provide suggestions as to where to locate notice for the various types of works protected under the copyright laws. For example, for copyrighted works published in book form the copyright office recommends that notice be located on the title page, the page following the title page, the front or back cover or first page of the main body of the work. For two dimensional pictorial or graphic works, notice should be durably affixed to either the front or the back of the work. For three dimensional sculptural works, notice should be durably attached to an exterior portion of the work or to a frame or pedestal. For items which are permanently stored in a container, notice on the container is sufficient.

Whenever possible, the guidelines provided by the Register of Copyrights should be followed, because these locations have been deemed sufficient to give effective notice. Locating notice in a manner departing from the guidelines risks a finding by a court that notice was insufficient, thus, giving the infringer an opportunity to defend on the basis of innocent infringement.



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