Page:Jaws illustration copyright decision.pdf/6

Stern, Shapiro, Weissberg & Garin, LLP Attn: Paul Sennott to avoid the harsh results that occurred when the indivisibility of copyright doctrine was applied. Because Peter Benchley is an independent third party with no legal relationship to the Applicant, the Board has concluded that the copyright notice in the Book, which includes only Peter Benchley’s name, does not meet the statutory notice requirement under the 1909 Act and, as such, the Work was forfeited to the public domain upon its publication.

Finally, you assert that although the notice appearing on the Work is not applicable to Mr. Kastel as author of the cover illustration, the purpose of copyright notice is nonetheless satisfied. Second Request at 7–8. However, this conclusion overlooks an important part of this purpose: informing the public of the identity of the person claiming copyright on a work. Echoing a quotation found in both your Second Request and Fantastic Fakes, the purpose of the notice provision of the 1909 Act is “to inform the public of the existence of the copyright, the time of commencement, and by whom it is claimed; and to prevent innocent persons who are unaware of the existence of the copyright from suffering by making use of the material.” Harry Alter Co. v. Graves Refrigeration, Inc., 101 F.Supp. 703, 705 (N.D. Ga. 1951) (emphasis added). Furthermore, just because a copyright notice might give the name of a person from whom the public can obtain further information about the true identity of the copyright holder, it does not make it an adequate notice. See Mifflin, 190 U.S. at 264. When there is “indiscriminate substitution” of the name of the proprietor, “considerable confusion” could result and the public may not be able to trace the title of the copyright to the owner. See Group Publishers, Inc. v. Winchell, 86 F Supp. 573, 577 (S.D.N.Y. 1949). A court is not required to look beyond the face of the notice and determine if a reasonable person could have been misled or could have discovered the true identity of the copyright holder. See Mifflin, 190 U.S. at 264.

The Board concludes that the notice in the Book containing only the name of Peter Benchley does not notify the public that the Work is protected by copyright, nor does it inform them of who is claiming copyright on the Work. A reasonable person might conclude that Peter Benchley, a famous author, did not create the Book cover illustration and that it is, therefore, not under copyright protection for lack of notice. Consequently, the Board disagrees that the purpose of copyright notice is served by the notice appearing in the Book.

IV.CONCLUSION

For the reasons stated herein, the Review Board of the United States Copyright Office affirms the refusal to register the work entitled: Jaws Illustration. This decision constitutes final agency action on this matter. 37 C.F.R. § 202.5(g).