Eminent scholar Jessica Litman has published What Notice Did, 96 B.U.L. Rev. 717 (2016), an interesting article on how copyright notice has shaped copyright ownership jurisprudence. Most interesting to me was the “head’s I win, tails you lose” nature of notice. Since 1870 an assignment had to be in writing, but publishers would name themselves as copyright owner in the notice. A legal conclusion that there had been no assignment meant that the notice was wrong and therefore the work not protected by copyright. To accommodate the problem, courts allowed for a parol transfer of common law copyright, a theory that was also the genesis of the work for hire doctrine. As a result of the Hobson’s choice:
[C]ourts evolved unprincipled and unpredictable doctrines to justify, whenever possible, holding that the title to the copyright was effectively assigned to the person or entity named in the notice. Where undocumented parol transfers could not be inferred, or would not support the right claimed, courts applied an increasingly broad interpretation of the works made for hire doctrine…. The presumption that an author transferred his copyright whenever he submitted a copy of the work for publication persisted under the 1909 Act. The presumption may originally have arisen to prevent the forfeiture of copyright from defects in notice, but later courts applied it as a freestanding legal rule in the absence of any notice defects. Where the author claimed to have reserved any rights in his copyright, courts were unsympathetic unless the author could produce written documentation that he retained the copyright or any part of it. Unsurprisingly, the rule worked to authors’ disadvantage.
The effects have carried forward into the post-1989 Copyright Act, one where notice is no longer required:
Now that copyright vests upon fixation, one might think that all of the precedent surrounding assignment and transfer of common law copyrights would be irrelevant. In fact, those doctrines have proved disturbingly long-lived. First, of course, they control determinations of initial copyright ownership in works first published or registered before January 1, 1978. In twenty-first century cases involving twentieth century copyrights, the old incoherent analyses still control, and cases commonly reach irreconcilable results on identical facts. Meanwhile, those analyses have slopped over to confuse courts seeking to determine who owns the copyright in more recent works. Publishers continue to presume that they own the copyrights in the works that they publish whether or not the author has executed and signed a transfer of copyright ownership.
 See, e.g., Keiler v. Harlequin Enters., 751 F.3d 64 (2d Cir. 2014); Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013); Gary Friedrich Enters. v. Marvel Characters, Inc., 716 F.3d 302 (2d Cir. 2013); Mattel, Inc. v. MGA Entm’t, 616 F.3d 904 (9th Cir. 2010); Marvel Characters, Inc. v. Simon, 310 F.3d 280 (2d Cir. 2002); HarperCollins Publishers LLC v. Open Road Integrated Media, LLC, 7 F. Supp. 3d 363 (S.D.N.Y. 2014); Random House, Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613, 620-24 (S.D.N.Y. 2001), aff’d, 283 F.3d 490 (2d Cir. 2002).
(Most internal footnotes omitted.)
A pre-publication version of the article is here.
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