Chapter 3: Copyrightability under the 1909 Act
It is important to recognize, and thus bears repeating, that under the 1976 Act the only action an author must take to secure copyright protection for an “original work of authorship” is to “fix” that work in a tangible medium of expression. Although people, even to this day, often talk about “copyrighting” their works, in fact, once a work is fixed—such as by writing it down or recording it—it is automatically copyrighted, and no further action is required. When people talk about “copyrighting” their work today, they could be referring to registering their work with the Copyright Office, or publishing their work with notice. There are definite advantages to registration and publication with notice, but under the 1976 Act neither are required for copyright protection.
In stark contrast, the 1909 Act, which generally applies to works created before 1978, does require affirmative action beyond fixation in order for an author to receive copyright protection. Under the 1909 Act, the trigger for federal copyright protection was publication with notice. In other words, a fixed work of authorship was not protected by federal copyright law until it was published, and that publication needed to provide notice to the public that the author was claiming copyright in the work. The “notice” requirement was generally satisfied by attaching the © symbol (and/or the word “copyright”) to the work, along with the date of publication and the name of the author. Federal copyright protection began at the time of publication with notice; prior to that, the unpublished work was only protected, if at all, by state common law. Significantly, under the 1909 Act (and even under the 1976 Act until 1989) publication without notice could result in the forfeiture of copyright.1 Alternatively, under the 1909 Act an author could secure federal copyright protection for an unpublished work by registering that work with the Copyright Office. But either way, copyright protection required an affirmative act by the author, either in the form of publication with notice or registration.
The 1909 Act also required a copyright claimant to deposit copies of a work “promptly” after publication of the work with notice. Failure to do so could result in forfeiture of copyright.
Of course, the requirements that the work be fixed, original, and a work of authorship are constitutional, and apply to works governed by the 1909 Act just as they do to works falling under the 1976 Act. Recall that the 1976 Act generally applies to any work that was created after January 1, 1978.
FOOTNOTES:
1 An example of this can be seen later in this casebook, in the case of Warner Bros. Entm’t v. X One X Prods., 44 F.3d 584 (8th Cir. 2011).
