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 Although Judge Hand’s statement was dictum, later courts have accepted and applied the Fawcett Publications test for copyright abandonment—an “overt act” that demonstrates the author’s intent “to surrender his rights.” In most of the cases, however, the references to the Fawcett Publications dictum (or similar restatements of the test for abandonment) are themselves dicta, as the courts virtually always conclude that there has been no abandonment, finding insufficient proof of intent, proof of the required overt act, or both.

There are exceedingly few cases squarely presenting a scenario of copyright abandonment. In Bell v. Combined Registry Co., a district court determined that a poet, intending to make “a ‘gift’ to the world,” had abandoned copyright in his poem; but the court of appeals found it unnecessary to reach the abandonment issue because the poet had failed to comply with statutory formalities. In Pacific & Southern Co. v. Duncan, a