Notice or Not: ©

copyrightIn late November, David Pogue of the New York Times wrote about a hoaxer who plastered Facebook sites with an unsolicited message that stated:

In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. (as a result of the Berner [sic] Convention).

For commercial use of the above my written consent is needed at all times.

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version.

Pogue was correct in referring to the posting as a “hoax”, noting that the warning or notice makes no difference to the legal status of your illustrations, comics, paintings, crafts, professional photos and videos. But why was he correct?

Under the Berne Convention, an international copyright treaty, authors and creators are not required to post a copyright notice or warning as a prerequisite to enforcing their copyrights. Before adoption of the Berne Convention in 1988, if a copyright owner in the United States failed to place a copyright notice — the ubiquitous © — the owner would lose all his rights in the work should there be an infringement. Click this link to review the official word of the U.S. Copyright Office on this subject. Adoption of the Berne convention brought the United States into sync with the rest of world’s copyright practice.  So, in summary, Copyright is a “self-executing” right that arises as soon as a work is “fixed in a tangible medium.” The rights created by copyright law are no longer predicated upon the author’s posting or marking his work with a copyright notice.

Nonetheless, lawyers sill advise their clients to apply a notice. That’s because it still serves a purpose. In the United States, a copyright owner has the right to obtain “statutory damages” for infringement. These are damages that are set forth in the U.S. Copyright Statute and which are set at different amounts for intentional and unintentional (“innocent”) infringement. If you apply a copyright notice to your work, an infringer cannot claim “innocent infringement.”  That’s because the infringer was on notice that you were the copyright owner. In an infringement action this could mean the difference between receiving as much as $100,000 dollars per intentional infringement versus $200 dollars per innocent infringement.

So, like David Pogue said, you don’t need a fancy notice to enforce your rights (“registration” helps but that’s a subject for another newsletter article). However, using the © symbol along with the date and your name serves a purpose.

© 2012 Lipton Weinberger & Husick

–Adam G. Garson, Esq.

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