Copyrights - 17 USC Section 406

01/19/04

Sec. 406. Notice of copyright: Error in name or date on certain
copies and phonorecords

(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.

HISTORICAL AND REVISION NOTES
HOUSE 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.

AMENDMENTS
1988 - Pub. L. 100-568, Sec. 7(f)(4), substituted "date on
certain copies and phonorecords" for "date" in section catchline.
Subsec. (a). Pub. L. 100-568, Sec. 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, Sec. 7(f)(2), inserted "before the
effective date of the Berne Convention Implementation Act of 1988"
after "distributed".
Subsec. (c). Pub. L. 100-568, Sec. 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".
EFFECTIVE 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.

Last modified: April 19, 2006