§402 — Title 17 Copyrights | U.S. Code

Summary

Allows a copyright notice to be put on publicly distributed phonorecords when a sound recording is published by the copyright owner in the United States or elsewhere. The notice must have three parts: the ℗ symbol, the year the recording was first published, and the copyright owner's name (or a recognizable short form or well-known alternative). If only the producer’s name appears on the label, that counts. The notice must be placed on the record, its label, or its container where people can reasonably see it. If a properly placed notice appears on copies that a person who is later sued had access to, that person cannot use an “innocent infringement” claim to lower damages, except as allowed by the last sentence of section 504(c)(2).

Title 17, §402

Copyrights — Source: USLM XML via OLRC

(a)Whenever a sound recording protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed phonorecords of the sound recording.

(b)If a notice appears on the phonorecords, it shall consist of the following three elements:

(1)the symbol ℗ (the letter P in a circle); and

(2)the year of first publication of the sound recording; and

(3)the name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner; if the producer of the sound recording is named on the phonorecord labels or containers, and if no other name appears in conjunction with the notice, the producer’s name shall be considered a part of the notice.

(c)The notice shall be placed on the surface of the phonorecord, or on the phonorecord label or container, in such manner and location as to give reasonable notice of the claim of copyright.

(d)If a notice of copyright in the form and position specified by this section appears on the published phonorecord or phonorecords to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in the last sentence of section 504(c)(2).

Notes & Related Subsidiaries

Historical and Revision Notes

house report no. 94–1476

A special notice requirement, applicable only to the subject matter of sound recordings, is established by section 402. Since the bill protects sound recordings as separate works, independent of protection for any literary or musical works embodied in them, there would be a likelihood of confusion if the same notice requirements applied to sound recordings and to the works they incorporate. Like the present law, therefore, section 402 thus sets forth requirements for a notice to appear on the “phonorecords” of “sound recordings” that are different from the notice requirements established by section 401 for the “copies” of all other types of copyrightable works. Since “phonorecords” are not “copies,” there is no need to place a section 401 notice on “phonorecords” to protect the literary or musical works embodied in the records. In general, the form of the notice specified by section 402(b) consists of the symbol “℗”; the year of first publication of the sound recording; and the name of the copyright owner or an admissible variant. Where the record producer’s name appears on the record label, album, sleeve, jacket, or other container, it will be considered a part of the notice if no other name appears in conjunction with it. Under subsection (c), the notice for a copyrighted sound recording may be affixed to the surface, label, or container of the phonorecord “in such manner and location as to give reasonable notice of the claim of copyright.” There are at least three reasons for prescribing use of the symbol “℗” rather than “©” in the notice to appear on phonorecords of sound recordings. Aside from the need to avoid confusion between claims to copyright in the sound recording and in the musical or literary work embodied in it, there is also a necessity for distinguishing between copyright claims in the sound recording and in the printed text or art work appearing on the record label, album cover, liner notes, et cetera. The symbol “©” has also been adopted as the international symbol for the protection of sound recordings by the “Phonograms Convention” (the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, done at Geneva October 29, 1971), to which the United States is a party.

Editorial Notes

Amendments

1988—Subsec. (a). Pub. L. 100–568, § 7(b)(1), (2), substituted “General provisions” for “General requirement” in heading, and “may be placed on” for “shall be placed on all” in text. Subsec. (b). Pub. L. 100–568, § 7(b)(3), substituted “If a notice appears on the phonorecords, it” for “The notice appearing on the phonorecords”. Subsec. (d). Pub. L. 100–568, § 7(b)(4), added subsec. (d).

Statutory Notes and Related Subsidiaries

Effective Date

of 1988 AmendmentAmendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title.

§402 Notice of copyright: Phonorecords of sound recordings