17 U.S.C. § 406

Notice of copyright: Error in name or date on certain copies and phonorecords

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(a)Error in Name.—With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where the person named in the copyright notice on copies or phonorecords publicly distributed by authority of the copyright owner is not the owner of copyright, the validity and ownership of the copyright are not affected. In such a case, however, any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein, unless before the undertaking was begun—(1) registration for the work had been made in the name of the owner of copyright; or(2) a document executed by the person named in the notice and showing the ownership of the copyright had been recorded.The person named in the notice is liable to account to the copyright owner for all receipts from transfers or licenses purportedly made under the copyright by the person named in the notice.(b)Error in Date.—When the year date in the notice on copies or phonorecords distributed before the effective date of the Berne Convention Implementation Act of 1988 by authority of the copyright owner is earlier than the year in which publication first occurred, any period computed from the year of first publication under section 302 is to be computed from the year in the notice. Where the year date is more than one year later than the year in which publication first occurred, the work is considered to have been published without any notice and is governed by the provisions of section 405.(c)Omission of Name or Date.—Where copies or phonorecords publicly distributed before the effective date of the Berne Convention Implementation Act of 1988 by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice, the work is considered to have been published without any notice and is governed by the provisions of section 405 as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988.(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2578; Pub. L. 100–568, § 7(f), Oct. 31, 1988, 102 Stat. 2858.)Historical and Revision Noteshouse report no. 94–1476

In addition to cases where notice has been omitted entirely, it is common under the present law for a copyright notice to be fatally defective because the name or date has been omitted or wrongly stated. Section 406 is intended to avoid technical forfeitures in these cases, while at the same time inducing use of the correct name and date and protecting users who rely on erroneous information.

Error in Name. Section 406(a) begins with a statement that the use of the wrong name in the notice will not affect the validity or ownership of the copyright, and then deals with situations where someone acting innocently and in good faith infringes a copyright by relying on a purported transfer or license from the person erroneously named in the notice. In such a case the innocent infringer is given a complete defense unless a search of the Copyright Office records would have shown that the owner was someone other than the person named in the notice. Use of the wrong name in the notice is no defense if, at the time infringement was begun, registration had been made in the name of the true owner, or if “a document executed by the person named in the notice and showing the ownership of the copyright had been recorded.”

The situation dealt with in section 406(a) presupposes a contractual relation between the copyright owner and the person named in the notice. The copies or phonorecords bearing the defective notice have been “distributed by authority of the copyright owner” and, unless the publication can be considered unauthorized because of breach of an express condition in the contract or other reasons, the owner must be presumed to have acquiesced in the use of the wrong name. If the person named in the notice grants a license for use of the work in good faith or under a misapprehension, that person should not be liable as a copyright infringer, but the last sentence of section 406(a) would make the person named in the notice liable to account to the copyright owner for “all receipts, from transfers or licenses purportedly made under the copyright” by that person.

Error in Date. The familiar problems of antedated and postdated notices are dealt with in subsection (b) of section 406. In the case of an antedated notice, where the year in the notice is earlier than the year of first publication, the bill adopts the established judicial principle that any statutory term measured from the year of publication will be computed from the year given in the notice. This provision would apply not only to the copyright terms of anonymous works, pseudonymous works, and works made for hire under section 302(c), but also to the presumptive periods set forth in section 302(e).

As for postdated notices, subsection (b) provides that, where the year in the notice is more than one year later than the year of first publication the case is treated as if the notice had been omitted and is governed by section 405. Notices postdated by one year are quite common on works published near the end of a year, and it would be unnecessarily strict to equate cases of that sort with works published without notice of any sort.

Omission of Name or Date. Section 406(c) provides that, if the copies or phonorecords “contain no name or no date that could reasonably be considered a part of the notice,” the result is the same as if the notice had been omitted entirely, and section 405 controls. Unlike the present law, the bill contains no provision requiring the elements of the copyright notice to “accompany” each other, and under section 406(c) a name or date that could reasonably be read with the other elements may satisfy the requirements even if somewhat separated from them. Direct contiguity or juxtaposition of the elements is no longer necessary; but if the elements are too widely separated for their relation to be apparent, or if uncertainty is created by the presence of other names or dates, the case would have to be treated as if the name or date, and hence the notice itself had been omitted altogether.

Editorial NotesReferences in Text

The effective date of the Berne Convention Implementation Act of 1988, referred to in text, is Mar. 1, 1989, see section 13 of Pub. L. 100–568, set out as an Effective Date of 1988 Amendment note under section 101 of this title.

Amendments

1988—Pub. L. 100–568, § 7(f)(4), substituted “date on certain copies and phonorecords” for “date” in section catchline.

Subsec. (a). Pub. L. 100–568, § 7(f)(1), substituted “With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, where” for “Where”.

Subsec. (b). Pub. L. 100–568, § 7(f)(2), inserted “before the effective date of the Berne Convention Implementation Act of 1988” after “distributed”.

Subsec. (c). Pub. L. 100–568, § 7(f)(3), inserted “before the effective date of the Berne Convention Implementation Act of 1988” after “publicly distributed” and “as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988” after “section 405”.

Statutory Notes and Related SubsidiariesEffective Date of 1988 Amendment

Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title.

Notes of Decisions

Cited in 15 cases, 1981–2014 · leading case: Bagdadi v. Nazar, 84 F.3d 1194 (9th Cir. 1996).

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Bagdadi v. Nazar, 84 F.3d 1194 (9th Cir. 1996). · cites it 2× “17 U.S.C. § 406 (a). Bagdadi argues that the innocent infringer defense is not applicable to Defendant Nazar because: 1) the work was not “publicly distributed”; 2) even if the initial distribution of the work was publicly distributed with Bag-dadi’s authority, the copy Nazar…”

Fantastic Fakes, Inc. v. Pickwick Int'l, Inc., 661 F.2d 479 (5th Cir. 1981). “7 This question is clearly answered in section 406(a) of the 1976 Copyright Act, 17 U.S.C. § 406 (a) (1978), which provides in part: “Where the person named in the copyright notice on copies of phonographs publicly distributed by authority of the copyright owner is not the owner…”

Lifshitz v. Walter Drake & Sons, Inc., 806 F.2d 1426 (9th Cir. 1986). · cites it 3× “17 U.S.C. § 406 (b). Lifshitz did not discover this date error until the year after the final sales of his hors d’oeuvre maker.”

Smith v. Mikki More, LLC, 59 F. Supp. 3d 595 (S.D.N.Y. 2014). “” 17 U.S.C. § 406 . *612 This legend might be evidence supporting a theory that plaintiffs granted defendants an implied -nonexclusive license to use the Website, but defendants elected not to plead this affirmative defense in their answer, which includes eighteen other defenses.”

William J. Canfield, D/B/A the Enter. v. The Ponchatoula Times, Bryan T. McMahon, 759 F.2d 493 (5th Cir. 1985). “…a complete defense to any action for such infringement if such person proves that he or she was misled by the notice. 17 U.S.C. § 406 (a).”

Playboy Enter., Inc. v. Dumas, 831 F. Supp. 295 (S.D.N.Y. 1993). “Although the court there was concerned primarily with whether a copyright notice was defective under 17 U.S.C. § 406 (b), its comments on section 204 in light of the evidence of oral negotiations and a written agreement do not help Playboy.”

Wolfe v. United Artists Corp., 583 F. Supp. 52 (E.D. Pa. 1983). · cites it 2× “, by designating Robbins as the copyright owner and not accounting to plaintiff and Bayberry for such pursuant to 17 U.S.C. § 406 (a)(2). The thirteenth claim appears to be a common law breach of contract claim for failure to pay royalties pursuant to the agreements of September…”

Saxon v. Blann, 968 F.2d 676 (8th Cir. 1992). · cites it 2× “17 U.S.C. § 406 (b) (1988). The district court also found that Saxon could not enforce his copyright of NIJB because of his unclean hands in publishing the book in order to destroy the commercial value of PMJB 1 to Blann.”

Jerry Vogel Music Co. v. Warner Bros., Inc., 535 F. Supp. 172 (S.D.N.Y. 1982). “” 17 U.S.C. § 406 (a). Accordingly, under the circumstances of this case, the principles of the 1976 Act should be implemented to avoid a possible forfeiture of copyright resulting from a five day lapse between the date when Warner claims Schirmer acquired title under the…”

Shapiro & Son Bedspread Corp. v. Royal Mills Assocs., 568 F. Supp. 972 (S.D.N.Y. 1983). “17 U.S.C. § 406 (c) (where copies contain no name or date, the work is considered to have been published without any notice and is governed by the provisions of section 405).”

Arthur Retlaw & Assocs., Inc. v. Travenol Labs., Inc., 582 F. Supp. 1010 (N.D. Ill. 1984). “17 U.S.C. § 406 (a). The fact that the copyright notice on the first six issues of the newsletter contained Retlaw’s name, instead of the name of the owner of the copyright, does not affect Travenol’s rights in the copyright of those issues.”

Schatt v. Curtis Mgmt. Grp., Inc., 764 F. Supp. 902 (S.D.N.Y. 1991). “” 11 In the House Report on 17 U.S.C. § 406 (b), Congress clearly stated otherwise: In the case of an antedated notice, where the year in the notice is earlier than the year of first publication, the bill adopts the established judicial principle that any statutory term measured…”

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