Attn: Paul Sennott
On June 18, 2013, the Office received your First Request for Reconsideration in which you requested that, pursuant to 37 C.F.R. § 202.5(b), the Office reconsider its initial refusal to register the Work. Letter from Paul Sennott to Copyright RAC Division (June 17, 2013) (“First Request”). Upon reviewing the Work in light of the points raised in your letter, the Office concluded that “the [W]ork as published did not contain a copyright notice in the name of the owner as required by the 1909 Copyright Act” and again refused registration. Letter from Stephanie Mason, Attorney-Advisor, to Paul Sennott (November 8, 2013).
Finally, in a letter received by the Office on February 7, 2014, you requested that, pursuant to 37 C.F.R. § 202.5(c), the Office reconsider for a second time its refusal to register the Work. Letter from Paul Sennott to Copyright RAC Division (February 6, 2014) (“Second Request”). In the Second Request you assert that, while the 1909 Act requires a copyright notice that includes the name of the copyright proprietor in order to obtain copyright protection upon publication, the mere fact that the only notice in the Book was in Peter Benchley’s name – and not Roger Kastel’s – does not forfeit the Work into the public domain. Id. at 3.
In support of your assertion, you offer three primary arguments. First, because the Work is part of a collective work, only one name is required in the copyright notice to protect all of the preexisting contributions. Second Request at 3, 6–7. Second, you argue that there has been an increasingly liberal application of the 1909 Act’s notice requirements by the courts so as to avoid forfeiture of copyright due to “technical error in copyright notices.” Id. at 3. Third, you submit that the notice contained in the Book should be sufficient because it serves the purpose of the notice requirement by informing the public of the existence of a copyright. Id. at 4, 7–8. The Second Request references a number of cases – principally Goodis v. United Artist Television, Inc., 425 F.2d 397 (2d Cir. 1970) and Fantastic Fakes, Inc. v. Pickwick Int’l, Inc., 661 F.2d 479 (5th Cir, 1981) – in support of these arguments.
III. DECISION
- A. The Legal Framework
The adequacy of a copyright notice on a work is examined under the statute as it existed on the date that the work was first published. 37 C.F.R. § 202.2(a)(1) (2013). If a work that was published before January 1, 1978 – the effective date of the Copyright Act of 1976 (the “1976 Act”) – does not meet the statutory requirements of copyright notice under the 1909 Act, the Office must reject an application for copyright registration of the work. 37 C.F.R. § 202.2(b) (2013). The Work was first published in 1975 and, therefore, must meet the statutory requirements of the 1909 Act in order for the Board to approve Applicant’s registration request. As the Work falls under the control of the 1909 Act, discussion of the 1976 Act is irrelevant in determining the sufficiency of the notice for the Work.
Under the 1909 Act, notice was very clearly required to “consist either of the word ‘Copyright’, the abbreviation ‘Copr.’, or the symbol ©, accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication." 17 U.S.C. § 19
