Copyright or Copy Wrong?
Third in a Series
by Gregory Hancks, AIA
Associate General Counsel
How do you . . . better understand U.S. and international copyright law?
Summary: You may know (or think you know) your basic rights and obligations under copyright law. But what misconceptions are commonly held by people you work with, your boss or employees, your clients, or your consultants? You might be surprised. This is the third in a series of articles exploring various aspects of copyright that are frequently misunderstood. In this installment, we note that copyright notice isn’t what it used to be.
Do you know the Architect’s Knowledge Resource? A quick search of “copyright” turns up 9,415 entries, including “Recommended Guidelines for Accord Policy on Intellectual Property and Copyright,” a UIA accord policy on international copyright.
Further information is available on the U.S. Copyright Office Web site. Application of copyright law in particular situations may be complex. You should consult a qualified lawyer when you need advice about copyright issues in your business.
To request a copy of this article that includes supporting citations or to ask a copyright question that could be discussed in a future article in this series, send an e-mail to ghancks@aia.org.
As associate general counsel, Gregory Hancks, AIA, assists the general counsel in legal matters affecting the Institute, including corporate governance, contracts, and intellectual property. He also serves as counsel to the AIA’s National Ethics Council. He is the author of the article on “Construction Contracts” in the 14th edition of The Architect’s Handbook of Professional Practice, published in 2008.
This article is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions, and illustrations apply to specific situations.
Ever notice the world has changed?
There are things that everyone knows. Everyone, at least those of us over a certain age, knows that you need to place a copyright notice on your drawings and other copyrightable works when you distribute them. Otherwise, you lose your copyright. In this instance, “everyone” would be wrong.
A copyright notice, as described in the federal copyright statute, typically looks like this:
Copyright 2008 [Name of Copyright Owner] or
© 2008 [Name of Copyright Owner]
It is understandable that many people believe that a copyright notice is required. That was true under U.S. law for most of the 20th century. Because copyright law in this country is established by federal statutes, however, it is always subject to change by Congress. And the law regarding copyright notice has changed.
In the 1980s, Congress did away with the copyright notice requirement. Since 1989, authors no longer lose copyright ownership if they fail to include a copyright notice on their work when it is distributed. Or, as explained in more technical language by one court:
federal copyright protection attaches to a work immediately upon its creation, and, for works published after March 1, 1989, is not forfeited by the creator's failure to attach notice of copyright to it.
This change in copyright procedure is one of the results of Congress’s decision, more than 20 years ago, to make U.S. copyright law conform to international copyright standards under the treaty known as the Berne Convention. The overall consequence of this move toward international copyright standards is to give the creators of copyrightable work more rights and to make it easier for them to assert and defend those rights. The previous article in this series explains the circumstances surrounding the Berne Convention in more detail.
Notice that using a copyright notice is still a good idea
So why do we continue to see copyright notice used so frequently? Because there are some practical and legal advantages still to be gained.
The legal advantage: in a copyright infringement lawsuit, the infringer can’t claim “innocent infringement” if the published copyrighted work included a copyright notice. See 17 U.S.C. § 401(d). (There are some exceptions to this, primarily for the benefit of nonprofit educational organizations.)
The more practical advantage is that attaching a copyright notice to your work demonstrates to anyone who sees it that you take an interest in your ownership rights. In other words, a copyright notice signifies that the work isn’t an orphan, ripe for unfettered reuse by whoever comes across it. And it is, of course, more efficient to prevent unauthorized copying of your work than to try enforcing your copyright after infringement has taken place.
The form prescribed for a copyright notice is shown above. The question of where to place a copyright notice typically isn’t a perplexing problem. The U.S. Copyright Office has issued regulations that explain where the notice should be attached on various types of copyrightable work. One category that seems to have escaped attention is works of architecture, which, since 1990, are now copyrightable. (Details will be explored in a future article.) Posting a copyright notice on a building would, at least in theory, provide some benefits to the owner of the copyright in the architectural design, which is frequently the architect. Perhaps the traditional inscribed cornerstone could make a comeback and serve this purpose.
The shoe on the other foot
Discussions of copyright frequently focus on the audience as copyright owners—the creators of copyrightable work. All of us, however, encounter copyrighted material much more frequently as users than we do as creators. As a user, what does a copyright notice mean to you when you see it on someone else’s work?
You should presume that whoever owns the copyright in the work does not, in fact, want the work copied. If you do want to reuse material that has a copyright notice attached, you should consider whether and how such reuse may be permitted. Internet sites may provide specific terms for reuse of posted material, for example, through a Creative Commons license. Whether your reuse of copyrighted material might fall within the statutory “fair use” exception and therefore doesn’t require permission from the owner is something we will explore in a later article in this series.
As should be clear by now, however, the absence of a copyright notice does not mean that the material is freely available to be copied.
“All rights reserved”
You may have seen this phrase accompanying a copyright notice. Although this addition can’t hurt, it won’t provide the copyright owner with any additional benefits unless there is specific concern about copyright protection in Mexico and various countries in the Caribbean and Central and South America.
Use of the phrase “All rights reserved” resulted from the Buenos Aires Convention of 1910 (“Copyright Convention Between the United States and Other American Republics”), which the U.S. joined in 1911 to establish an international copyright protocol with Latin American countries. The treaty requires that copyrighted works contain a “statement that indicates the reservation of the property right” to gain protection in other countries that are parties to the treaty.
Although most Latin American countries have joined the Buenos Aires Convention, that treaty has been generally superseded by other copyright treaties, such as the Berne Convention. If you have a particular interest in protecting your copyright in countries south of the U.S. border, you should consult a lawyer about your copyright procedures. Otherwise, the phrase “All rights reserved” is, as one commentator has described it, just chaff.
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