US Copyright Law/Formalities
Under the 1790 and 1909 Acts, formalities were a necessary prerequisite to copyright protection. The 1976 Act made many of these formalities unnecessary to receive protection, and since US accession to the Berne Convention, formalities are generally not required for copyright protection, although they give the copyright holder some distinct advantages if followed. There are three sets of rules for formalities:
- Works created before January 1, 1978 follow the rules of the 1909 Act.
- Works created between January 1, 1978 and March 1, 1989 follow the rules of the 1976 Act.
- Works created after March 1, 1989 follow the rules of the Berne Convention Implementation Act.
The 1909 Act required that all published works carry the "©" symbol or the word "Copyright," the year of first publication, and the name of the author in order to receive copyright. Several years may be noted in the case of multiple completion dates - e.g., in the case of further editing. The 1976 Act eased the particularities of the notice requirement, but kept it as a prerequisite to copyright protection.
Today, notice is not a requirement. The Berne Convention Implementation Act of 1989 made notice unnecessary on all works first published after March 1, 1989. Notice is still encouraged by the law, however. If a work carries copyright notice, the notice bars other parties from claiming "innocent infringement" as a defense. 17 U.S.C. § 401. Practically, this means that an author who has registered a copyright on the work may sue for punitive damages.
Under the 1909 Act, publication had two important legal purposes: it applied federal copyright protection to the work, and it removed common law copyright protection. Courts eventually determined that there were two types of publication. Investive publication, the type that would apply federal protection, did not have to be widespread: it could be among a small group of people. Federal protection would not attach unless notice and other formalities were followed, but in the absence of such formalities, common law protection would still apply. Divestive publication, the type that would remove common law protection, had to be on a larger, more general scale.
The 1976 Act changed the law so that federal copyright protection attaches upon fixation, not publication. This eliminated the entire concept of investive publication. Divestive publication remained in a different form: if a work was offered to the public without copyright notice and other formalities, it would lose its copyright protection under federal law.
Since 1989, publication has had no effect upon the validity of copyright. It still has relevance to post-1989 works: it determines when deposit is required, and it determines the term length for works by corporate authors, among other purposes.
Copyright registration has never been a requirement for protection, but it has always been helpful to authors. The most important aspect of registration, which applies under all three copyright regimes, is that registration is a prerequisite to suing for infringement. Note that registration can occur after the infringement itself, but it must be made before any suit is filed.
Under the 1909 Act, registration was also necessary before renewing a copyright. The vast majority of authors did not renew their work, but this stipulation may have prevented those who did not anticipate their work remaining relevant enough for renewing to make a financial difference. In that sense, not registering would have prevented authors from doubling their copyright term for that work.
When a person registers a copyright, they must supply two copies of the work to the Library of Congress. 17 U.S.C. § 408. The deposit requirement also applies to any work published in the United States for which copyright is claimed within three months of publication. 17 U.S.C. § 407.