New publishers and self-published authors often have questions about a seemingly simple task: drafting the copyright notice.
Copyright, of course, is a form of protection provided by U.S. and international law to owners of “original works of authorship.” Most writers (and readers) are aware a copyright notice bestows important intellectual property rights upon the owner, and a notice may be placed on all publicly distributed copies. Many, however, are unaware of the following:
- In the United States, the use of the copyright notice for works first published after March 1, 1989 is optional. This is a result of the U.S. ratification of the Berne Convention in 1988, which prohibits member nations from imposing formalities as a prerequisite to copyright ownership. (Before March 1, 1989 in the U.S., a notice was mandatory on all published works.)
- A copyright notice is the responsibility of the copyright owner and does not require permission from, or registration with, the Copyright Office.
- The copyright owner often isn’t the author. Works made for hire are owned by the employer, or the person who contracted with the author to write the work. In professional and textbook publishing, the author, although not working for hire, often will irrevocably assign all rights to the publisher.
If copyright notices aren’t required, why do publishers use them? The answer is simple –using a copyright notice provides important benefits if and when the owner must enforce the copyright against an infringer. First, a person who infringes a work having a valid copyright notice cannot use the defense of “innocent” infringement, and will be subject to higher penalties for the infringement. Second, a copyright notice makes it easier to find the owner when a person seeks to license that copyright. Third, a copyright notice protects the owner’s work in countries that have not signed the Berne Convention and instead only are members of the older International Copyright Convention (I.C.C.) and/or the Buenos Aires Convention (more on this later). The U.S., by the way, is a member of both the Berne Convention and the I.C.C.
What should be in a valid copyright notice?
Although nothing prevents more lengthy notices, there are four elements of a notice necessary to comply both with the law of the U.S. and other countries respecting intellectual property rights (not all do, of course. When I received the Chinese translation of my first novel, I was surprised to see the cover art included a copyrighted photograph of Kevin Costner). The mandatory elements of a copyright notice are:
- The word “Copyright,” “Copr.” and/or the symbol ©. The symbol is not required in Berne Convention countries such as the U.S. and Western Europe, but is required in countries that are members of the I.C.C. and not the Berne Convention. In those countries, the word “copyright” or the abbreviation alone is not acceptable.
- The name of the owner of the copyright (again, not necessarily the author).
- The year of first publication (optional: the year of any revised editions, for nonfiction).
- Optional: the words “All Rights Reserved.” This only is necessary if the work will be published or distributed in South American countries that are signatories to the Buenos Aires Convention, but as a precaution, most publishers include it.
Examples: © 2000 by Al Gore
Copr. © 1885 Samuel Clemens
Copyright © 1971 by D.B. Cooper. All Rights Reserved.
When an author assigns print rights to a publisher but retains other rights, the author always is listed as the copyright owner. If the author has assigned all rights to the publisher, but the author has a right of reversion when the book goes out of print, publishers traditionally print the copyright notice in the name of the author. Because of the many variations of publishing agreements and ownership, however, the construction of a copyright notice may require some thought. Situations involving ghost writers and collaborators can get complicated.
Don’t worry – a defect in the copyright notice by itself doesn’t result in a forfeiture of ownership, although it may affect the defense of innocent infringement.