The Importance of an Adequate Copyright Notice to Defeat Them

In a previous blog entry, we discussed the importance for photographers (and other artists) to digitally watermark their photographs. By digitally watermarking their work, photographers could seek additional damages in some situations in a copyright infringement lawsuit for the removal or alteration of such watermark under section 1203 of the Digital Millennium Copyright Act (DMCA). However, this is far from the only reason artists of any variety should indicate ownership of their work. For copyright holders, an adequate copyright notice, whether digital watermark or standard imprint, may be even more important than the ability to seek additional damages concerning section 1203 of the DMCA potentially.

When work is federally registered and published, a copyright holder will often place a copyright notice on the work (i.e., © Year Published, Name of Owner) as prescribed under sections 401 and 402 of the Copyright Act. As highlighted by section 405(b) of the Copyright Act, the purpose of the copyright notice is to protect innocent infringers. Koontz v. Jaffarian, 617 F. Supp. 1108, 1112 (E.D. Va. 1985) aff’d, 787 F.2d 906 (4th Cir. 1986). An innocent infringer is one or more parties who innocently violate an exclusive right under section 106 of the Copyright Act of a copyright holder in a valid copyright without knowledge of a copyright. Works in the public domain are primary examples of artistic expression that usually bear little or no copyright protection.

Before the effective date of the Berne Convention Implementation Act of 1988 (BCIA), the copyright owner was required to comply with notice formalities when a work was published or with one of the savings clauses or forfeit the copyright. Morgan v. Hawthorne Homes, Inc., CIV.A. 04-1809, 2009 WL 1010476 (W.D. Pa. April 14, 2009). For works published before March 1, 1989, the effective date of the BCIA, that do not bear an adequate copyright notice, section 405(b) of the Copyright Act in some cases essentially restricts any liability for actual or statutory damages under section 504 of the Copyright Act provided that the work was publicly distributed under the authority of the copyright owner. This restriction on liability applies to any person who innocently infringes a copyright for any infringing acts committed before receiving actual notice that the work has been federally registered so long as they prove that the omission of information misled them.

While the defense of innocent infringement can impact the remedies available against a defendant for copyright infringement, it “will not constitute a defense to a finding of liability.” 4-13 Nimmer on Copyright § 13.08. Phoenix Renovation Corp. v. Rodriguez, 439 F. Supp. 2d 510, 517 (E.D. Va. 2006). Consequently, a copyright holder may still be able to recover actual profits obtained by the innocent infringer and prevent future infringement now that the innocent infringer is on actual notice or requires the innocent infringer to pay a license fee to continue exploitation of the work.

An adequate copyright notice, with some specific exceptions, essentially nullifies the defense of innocent infringement in a copyright infringement action insofar as the defendant had access to the published cop(ies) that bore an adequate copyright notice. Consequently, it is essential to provide a proper copyright notice on any published work to defend against an innocent infringer defense adequately. Moreover, such good practice will likely allow the copyright holder or rights holder, in many circumstances, to seek actual or statutory damages under section 504 of the Copyright Act in action for copyright infringement.

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