Notice required under Sec. 404(a)?

A friend of mine has a case involving alleged infringement of copyright in a yellow pages-type directory, specifically the ads appearing therein. He drew my attention to a relatively recent decision of the Tenth Circuit, Transwestern Publ. Co. v. Multimedia Marketing Assoc., Inc., 133 F.3d 773 (10th Cir. Jan. 8, 1998), in which the primary holding was that the plaintiff had failed to demonstrate that its contributions to the creation of the ads in its directory amounted to copyrightable expression. In an alternative holding, however, the court ruled that plaintiff could not proceed with its claim in any event because the published ads did not include a separate copyright notice, distinct from the notice displayed for the directory as a whole.

The court based its reasoning on Section 404(a) of the Copyright Act, which states the general principle that notice of copyright in a collective work (a type of compilation consisting of a "number of contributions, constituting separate and independent works in themselves") is sufficient to cover each individual contribution. The provision specifically excludes "advertisements inserted on behalf of persons other than the owner of copyright in the collective work." Because Congress amended Section 404(a) in the Berne Convention Implementation Act but did not amend this exclusion, the court reasoned that the exclusion survived that Act and "still refuses to extend the protection afforded" by notice of copyright in the collective work as a whole to the ads. Because plaintiff had failed to comply with the "mandatory notice requirement," it lacked protection for the ads, regardless of the presence of copyrightable expression. A concurring opinion disagreed with this statutory interpretation.

It seems possible that the court could have reached the same result on different grounds, i.e., lack of jurisdiction under Section 411. But the reasoning with regard to Section 404(a) seems just plain wrong. Any takers on this one?

Kerry L. Konrad
<00358%stb[_at_]mcimail.com> Received on Wed Jul 29 1998 - 18:25:01 GMT