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 may disclaim copyright and dedicate their works to the public domain. The case law on copyright abandonment, however, is muddled, because courts often use words like “abandonment” or “dedication to the public domain” to describe mere noncompliance with statutory formalities. See supra note 159; see also, e.g., Sanga Music, Inc. v. EMI Blackwood Music, Inc., 55 F.3d 756, 759–62 (2d Cir. 1995) (finding that a songwriter’s “words and actions,” such as her approval of the publication of her song without formalities, suggested that she intended to dedicate the work to the public domain); Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1019 (9th Cir. 1985) (describing publication without formalities as involving both “forfeiture” and “abandonment” of copyright); Imperial Homes Corp. v. Lamont, 458 F.2d 895, 898 (5th Cir. 1972) (holding that district court erred in finding abandonment where necessary statutory formalities were observed); Stuff v. E.C. Publ’ns, Inc., 342 F.2d 143, 145 (2d Cir. 1965) (cartoonist’s acquiescence in publication of cartoon without formalities amounted to “dedicat[ion] to the public”); Egner v. E.C. Shirmer Music Co., 139 F.2d 398, 399 (1st Cir. 1943) (licensees published work by permission of author without formalities); Nutt v. Nat’l Inst. Inc. for the Improvement of Memory, 31 F.2d 236, 238 (2d Cir. 1929) (oral delivery of lecture before filing of application for copyright did not constitute “publication” of the work without formalities); Werckmeister v. Am. Lithographic Co., 134 F. 321, 326–30 (2d Cir. 1904) (reasoning that public display of painting without notice of copyright did not constitute “publication” of the work without formalities so as to void copyright protection); Falk v. Gast Lithograph & Engraving Co., 54 F. 890, 893 (2d Cir. 1893) (circulation of title cards upon which reduced-size versions of copyrighted photographs were reproduced did not divest copyright in the underlying photographs where title cards omitted any copyright notice); Lopez v. Elec. Rebuilders, Inc., 416 F. Supp. 1133, 1135 (C.D. Cal. 1976) (consent to publication without copyright notice); Jacobs v. Robitaille, 406 F. Supp. 1145, 1149 (D.N.H. 1976); Foreign Car Parts, Inc. v. Auto World, Inc., 366 F. Supp. 977, 979–80 (M.D. Pa. 1973); Rosette v. Rainbo Record Mfg. Corp., 354 F. Supp. 1183, 1188–92 (S.D.N.Y. 1973) (although publishing musical composition in the form of sheet music without observing formalities would have divested copyright, recording of the composition did not do so), aff’d, 546 F.2d 461 (2d Cir. 1976); DeSilva Constr. Corp. v . Herrald, 213 F. Supp. 184 (M.D. Fla. 1962) (publication of architectural plans without observing copyright formalities); McCarthy & Fischer, Inc. v. White, 259 F. 364 (S.D.N.Y. 1919); Higgins v. Keuffel, 30 F. 627, 628 (C.C.S.D.N.Y. 1887). In a world where formalities have been eliminated as a precondition of statutory copyright protection, the continuing relevance of such “abandonment” cases is unclear.

Judge Learned Hand’s opinion in National Comics Publications v. Fawcett Publications is often cited for the general proposition that authors may abandon their copyrights. The court stated—unfortunately, without citing authority—that:

We do not doubt that the “author or proprietor of any work made the subject of copyright” by the Copyright Law may “abandon” his literary property in the “work” before he has published it, or his copyright in it after he has done so; but he must “abandon” it by some overt act which manifests his purpose to surrender his rights in the “work,” and to allow the public to copy it.