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It appears well-settled that copyright inheres in a present-day sound recording regardless of whether the copyright symbol is attached to it. Nevertheless, an author may wish to assert additional protection based on the removal or alteration of a copyright symbol from a work, on the ground that the presence of that notice tells people not to copy it. This is particularly so with regard to sound recordings on the Internet, where (particularly due to file trading) they can show up in places where the author did not intend without the author’s consent. How is this issue treated under the law? There are two approaches to relief, one from the case law, and one from the Copyright Act specifically prohibiting the removal or alteration of “Copyright Management Information” including an author’s copyright symbol. SECOND CIRCUIT COPYRIGHT AND LANHAM ACT CASES Prior to the Berne Convention Implementation Act, the Copyright Act required the fixation of copyright notices on sound recordings and other works. In 1988 the law was amended to make the notice permissive and let the presence or absence of the notice bear on whether or not the Defendant could prove innocent infringement. SeeBerne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853, enacted Nov. 5, 1988, � 7(a), reproduced at http://www.cni.org/docs/infopols/US.Berne.Convention.html. In the case where a symbol was removed or altered to identify someone other than the author, what was the standard? There are a number of cases from the 2nd U.S. Circuit Court of Appeals holding that “a plaintiff’s attempt to convert a successful copyright claim into a Lanham Act claim for false designation of origin” will be rejected. See Lipton v. Nature Co., 71 F.3d 464, 473 (2d Cir. 1995), quoting Kregos v. Associated Press, 937 F.2d 700, 710-711 (2d Cir. 1991). See also Softel Inc. v. Dragon Medical & Scientific Publications, 118 F.3d 955, 971 (2d Cir. 1997), and EFS Marketing v. Russ Berrie & Co., (2d Cir. 1996). In Lipton, the court found that “as a matter of law, a false copyright notice alone cannot constitute a false designation of origin within the meaning of � 43(a) of the Lanham Act.” 71 F.3d at 473. In these cases, it appears that the rationale of the court was that a copyright violation had already been established or could not be, and permitting an action based on the removal or alteration of the copyright notice itself would be allowing a double or impermissible recovery. See Softel, supra, 118 F.3d at 971. When Congress passed the Berne Convention Implementation Act, it mooted the issue by specifically providing a separate remedy for the removal of the copyright symbol, and attorney fees. Seeinfra � III. Unfortunately for the plaintiffs in the 2nd Circuit, the law did not go into effect until late 1998. PRE-BERNE CONVENTION IMPLEMENTATION ACT LANHAM ACT CASES In the 11th Circuit, it appears that false designation of origin actions for removal or alteration of a copyright notice may be tolerated. In Montgomery v. Noga, 168 F.3d 1282, 1300 (11th Cir. 1999), the Defendants removed the Plaintiff’s copyright symbol on his software, bundled it with their own material and placed their own copyright symbol on it. The court found that the use of the copyright symbol was “reverse passing-off” in violation of the Lanham Act. PROTECTION FOR REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION In 1998, Congress passed the WIPO Copyright and Performances and Phonograms Treaties Implementation Act. Part of that statute provided remedies for the alteration or removal of what the statute termed “Copyright Management Information” — information such as the author’s copyright notice, name, and date of publication, for example. See17 U.S.C. �� 1202, 1203. The statute did not provide a remedy for the violation of these provisions until 1998, but as of that time provided for actual damages or statutory penalties of up to $25,000 and attorney fees. Clearly, the 2nd Circuit line of cases has been eclipsed in terms of whether there is a remedy for removed or altered copyright notices. The other question is whether cases outside the 2nd Circuit holding that a � 43(a) remedy exists are in any way altered. Since there was no intent to repeal the cases interpreting federal law in the statute, it appears that both remedies are available simultaneously. Hannah Bentley has represented independent artists and labels in copyright and trademark litigation in a number of federal courts. If you are interested in submitting an article to law.com, please click herefor our submission guidelines.

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