What Notice Did

In the twenty-first century, copyright protection is automatic. It vests in eligible works the instant that those works are first embodied in a tangible format.1 Many Americans are unaware of that, believing instead that registration and copyright notice are required to secure a copyright.2 That impression is understandable. For its first 199 years, United States copyright law required authors to take affirmative steps to obtain copyright protection. The first U.S. copyright statute, enacted by Congress in 1790, required the eligible author of an eligible work3 to record the title of the work with the clerk of the court in the author's local district, deposit a copy of the printed title with the clerk's office, cause a copy of the registration record to be printed for four weeks running in a newspaper, and deliver a copy of the published work to the Secretary of State.4 Twelve years later, Congress added an additional requirement: copyright owners must place a prescribed copyright notice on every copy of a copyrighted work.5 In 1909, Congress eliminated the registration and deposit prerequisites for protection,6 but retained until 1978 the requirement that accurate copyright notice appear on every copy of a work.7 For 176 years of United States copyright history, then, accurate copyright notice was essential to securing a copyright in almost all works.8 Publishing copies of a work without copyright notice, or with the wrong name in the notice, was fatal to copyright protection.9Scholarly commentary on copyright notice has tended to tell two conflicting stories. In the first story, the notice prerequisite was confiscatory, serving primarily to divest deserving authors of the protection they earned through their creativity.10 In the second story, conditioning copyright protection on the presence of accurate copyright notice helped to assure that copyright protection attached to works whose owners valued copyright protection while leaving other potentially copyrighted material in the public domain.11 Requiring copyright notice, thus, allowed United States law to tolerate a broader range of potentially copyrightable subject matter and a lower threshold for originality than other countries found workable.12 Copyright notice, further, enabled members of the public to ascertain whether copyright protection subsisted in a work and, if so, who owned it.13 I am more sympathetic to the second story than the first,14 but here I want to pursue a different question. In this article, I explore the effect of the notice prerequisite on the law's treatment of copyright ownership.My reading of the cases has persuaded me that the notice prerequisite, as construed by the courts, encouraged the development of legal doctrines surrounding ownership that herded the ownership of copyrights into the hands of publishers and other intermediaries, notwithstanding statutory provisions that seem to have been designed at least in part to enable authors to keep their copyrights. I don't mean to suggest that anyone adopted a notice prerequisite with this purpose; I think the purpose of copyright notice was always understood as protecting members of the public by informing them that a copy embodied a work protected by copyright, and telling them who controlled it.15 Nonetheless, with hindsight, it's easy to see that a strictly construed notice requirement had the effect of liberating many copyrights from their authors for the benefit of the works' publishers. Notice also allowed the law to tolerate completely and unpredictably alienable copyrights, since prospective licensees could always find out who the copyright owner was by looking at the notice.16Copyright commentary tends to describe the alienable property characteristics of American copyright as reflecting the United States's fundamentally utilitarian approach to copyright.17 Maybe. Alternatively, perhaps the promiscuous alienability of U.S. copyrights is an accidental development that derived from courts' constructions of the copyright notice provision. …