What Notice Did

Abstract

In this article, I explore the effect of the copyright notice prerequisite on the law's treatment of copyright ownership. The notice prerequisite, as construed by the courts, encouraged the development of legal doctrines that herded the ownership of copyrights into the hands of publishers and other intermediaries, notwithstanding statutory provisions that seem to have been designed at least in part to enable authors to keep their copyrights. Because copyright law required notice, other doctrinal developments were shaped by and distorted by that requirement. The promiscuous alienability of U.S. copyrights may itself have been an accidental development deriving from courts' constructions of the copyright notice provision.

In 1989, the United States abandoned its reliance on copyright notice. We did not, though, think about ways to retrofit our law to replace the supports that notice provided for its underlying assumptions. The distortions that notice permitted – indeed encouraged – continue to shape case law adjudicating ownership of US copyrights, despite the fact that they no longer make practical or legal sense.