Attn: Paul Sennott
(1970). When copies of a work are made available to the public without the required notice, there results a forfeiture of any copyright protection and an injection of the work into the public domain. Wildman v. N.Y. Times Co., 42 F.Supp. 412, 414 (S.D.N.Y. 1941). The Code of Federal Regulations specifically lists a common defect in the notice as one that lacks the name of the copyright proprietor. 37 C.F.R. § 202.2(b)(1) (2013). While the Supreme Court stated in a pre-1909 Act decision that the term “proprietor” is understood to mean the author or any legal assignees of a work, the term is now understood to mean “either the owner’s true name, or an abbreviation by which such name can be recognized, or a generally known alternative designation of the owner.” Mifflin v. R.H. White Co., 190 U.S. 260, 262 (1903); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 7.09[B], at 7-62.
- B. Analysis of the Work
The sole copyright notice in the Book reads “Copyright © 1974 Peter Benchley,” followed by a separate line underneath stating “This book may not be reproduced in whole or in part, by mimeograph or any other means, without permission.” In your Second Request you make the argument, citing language from Goodis, that because the Book is a collective work consisting of Peter Benchley’s text and Applicant’s Work, “notice in the name of Peter Benchley, despite the fact that he is not the owner of Applicant’s separate contribution, must be treated as an error that does not affect the validity of Applicant’s ownership of copyright in the illustration.” Second Request at 7. Indeed, the 1909 Act explicitly states that when copyright applies to a composite work or periodical, that copyright extends to the parts of those publications as if each part were individually copyrighted. Copyright Act of 1909 § 3. While the 1909 Act doesn’t explicitly define “composite works,” the term is considered closely analogous to “collective works” in the 1976 Act. 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 9.03[B], at 9-17.
However, it seems apparent that Jaws would not qualify as a composite (or collective) work. A collective work does not result when only a few separate elements are brought together, such as “a work published with illustrations or front matter….” Nimmer, supra, § 3.02, at 3-6 (quoting H.R. Rep. No. 94-1476, at 122 (1976)). Furthermore, courts have held that the copyright of a book does not extend to the cover because there is ordinarily no copyrightable literary content on a book cover, and since the statute requires copyright notice to be placed on or immediately following the inside title page of the book, the cover’s “relation to the copyrighted literary content is remote and its authorship and ownership do not prima facie appear” connected to the book’s text. Fawcett Publ’ns v. Elliott Publ’n Co., 46 F.Supp. 717, 718 (D.C.N.Y. 1942). Having found that the Book is not a collective work, the Board cannot accept your argument, pulled from Goodis, that the Work should be protected because it is part of a collective work that has sufficient notice in Peter Benchley’s name to protect all of the components of that collective work.
In your Second Request you argue that, throughout the 20th Century, courts “became increasingly forgiving of…technical error in copyright notices” – so much so that the notice in the Book which is in Peter Benchley’s name and which excludes Applicant’s name is sufficient to grant copyright protection to the Work upon publication. Second Request at 3. While the Board recognizes that a number of judicial decisions have allowed slight variations in the name
