omission in date pre-Berne works

Hello,

I have a couple of questions regarding copyright notice:

(1) I have a client who was a staff photographer for a company (XYZ,
INC.) that manufactured beverages. The company has been out of business for a number of years, having assigned its many products and brands to several different companies. Over 30 years ago he shot a photo that was used in an advertisement in several magazines. The copyright notice on the ad contained the C in the circle and the name of the company -- XYZ,INC. (the photo was obviously a work for hire). The date was missing, however. There are no registrations for this work that can be found in the Copyright Office, either.

Under Section 404a of the statute, for pre-Berne works, the copyright notice of a collective work (i.e. the magazine) will not cover advertisements inserted therein that are on behalf of persons other than the collective work copyright owner. The caselaw addressing this issue involves fact patterns wherein the notice was omitted entirely from the advertisement (see Canfield V. Ponchatoula Times 759 F.2d 493 (5th Cir. 1985), rendering the ad public domain. What about an error in the notice of an ad? Does it have the same effect as no notice entirely with respect to Section 404? Section 406 states: (c) Omission of name or date. -- Where copies or phonorecords publicly distributed before the effective date of the Berne Convention Implementation Act of 1988 by authority of the copyright owner contain no name or no date that could reasonably be considered a part of the notice, the work is considered to have been published without any notice and is governed by the provision of section 405 as in effect on the day before the effective date of the Berne Convention Implementation Act of 1988.

If the ad did not contain any notice, the law is clear that it would be public domain. But does a defective notice, namely the omission of the date, also render the photo in public domain.

(2) My client also produced a similar photo for the company around the
same time, but the photo was never published nor was the copyright registered. If the company is nonexistent and, for sake of argument, the copyright in the photo was never assigned, where does the copyright go? It may be helpful to know that the current assignee of the trademark and product associated with the ad does not have any record of ownership of the copyright.

My client, the former employee, wants to make posters of the photo but does not want to infringe any valid copyrights. Any thoughts?

Laura Barrow
<lgbpatent[_at_]aol.com> Received on Tue Feb 29 2000 - 14:01:40 GMT