When Can I Legally Use, Repurpose and Publish Without Permission?

Clearing rights and permissions can be costly. Fortunately, the U.S. Copyright Act places exceptions and limitations on a copyright owner's right to demand a permission fee. Those exceptions and limitations are:  

• You can build on and share works in the public domain
  
• Unembellished ideas, concepts, principles and discoveries are not protected by copyright law. 
• The use qualifies as a fair use.
  
• When the owner has waived their interest in the work.

Below is more information about these important copyright exceptions and limitations. If after reading this you are still unsure whether permission is required, seek permission or the advice of counsel.

1.  The Public Domain (Expired & Lapsed Copyrights)

 

On January 1, 2022, works from 1926 fell into the public domain in the United States.  On January 1, 2023 copyrighted works from 1927 will enter the public domain, and so on. How long copyright protection lasts depends upon a number of factors, including, the date of publication, the date of the author's death, and in which countries you intend to publish the work.

Post 1977 Works.  For works created after December 31, 1977, the copyright last for 70 years after the author's death.  If a joint work, the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

Pre-1977 Works.  Before 1978 copyright lasted for 95 years from either registration or initial publication. However, many works fell into the public domain prior to 95 years due to failure to renew. Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright. If the owner failed to renew, their copyright was forfeited. 

The Copyright Renewal Trap.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner. For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew their copyright, the owner of the underlying work, a short story by Cornell Woolrich, did renew their copyright. Since the copyright in the film only extended to the new material added by the producers of the film, the owner of the copyright in the underlying short story was able to stop unauthorized distribution of the film. The takeaway? If a work is an adaption of another work, both the underlying rights holder, and the holder of the copyright in the derivative work may hold rights. 

Other Forms of Protection.  Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as trademark or unfair competition law (which protects against confusingly similar usage by another); the right of privacy (which protects a person's right to be left alone); the right of publicity (which protects an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad. Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new copyrightable material, may also require permission. 

Protection Abroad for U.S. Public Domain Works. Although a work may be in the public domain in the US, it may still be protected in other countries. For example a work by a US author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany, where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas.

2. Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether. Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to facts. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed, explained or illustrated. Be aware that where the dividing line between an unadorned or unprotectable idea lies, and one that is sufficiently developed to enjoy copyright protection, sometimes is hard to discern. As a general rule, copyright does not protect short phrases, names or titles either. However, short phrases, names and titles may be protected by trademark or unfair competition law if they serve a branding purpose. Fortunately, the use of a trademark as a point of reference in a story, or used in a non-deceptive way to criticize a product or service, will generally be deemed a fair or non-infringing use.

3. Fair Use

Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. 

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement. The central point is that fair use determinations involve risk. So, if you can't make the decision yourself, and are risk adverse, seek permission.

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors. No one factor is determinative of the issue, although factor four, which relates to economic harm, weighs heavily in any fair use decision.  

• The purposes and character of the use, including whether the use is primarily commercial;
• The nature of the work that's been copied;
• The amount and importance of what was taken in relation to the original work as a whole;
• The effect the copying has on the marketability of the original work and its derivatives

Cutting Through the Fair Use Gobbledygook 

While there are no mechanical rules to define with precision what is a fair use, the following considerations, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.        

• Fair use favors transformative uses. Use the work as a springboard for new insights. Critique the original. Make a connection between it and other works. Use it to buttress your own arguments, or the arguments of others.

• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one. That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music.

• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works.  

• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.  

• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement. Make sure the amount you use is reasonable in light of the purpose of the copying.

• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively. 

• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.

• Parody is a work that that ridicules or mocks another work. Fair use favors parody. It does not favor satire. Make certain the parody is apparent. A conservative approach is to conjure up just enough of the original to convey your parodic points.  

• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  

• The most important consideration concerns economic harm. Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.  

4. Creative Commons
 

Creative Commons Buttons

  Creative Commons licenses are standardized licenses give the public permission to share and use a creative work on conditions set by the copyright owner. While neither an exception nor limitation on copyright, by clearly stating what is, and is not, a permissible use, CC licenses short circuits the need to seek formal permission. A CC license button (or link to the license) will appear in close proximity to the work. If you violate the terms of a CC license, in addition to termination of the license, the potential consequences include compensatory or statutory damages, or an injunction. Therefore, you must read a CC license very carefully.

If you plan to make use of a work that does not fall within the above four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time.

Finally, don't be afraid to negotiate rates with the rights holder, keeping in mind that non-profit organizations often receive more favorable permission quotes.   Also, if the amount you want to use is small, or the use will promote the rights holder, or contribute to the public good in a significant way, fees may be reduced or waived.  But, don't count on it.  

Additional Resources:

Trademark Registration and the Single Book Title
Copyright Office - Search Fair Use Opinions

Classroom Use Guidelines (not legal authority; but agreed-upon minimums)

Creative Commons

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  When in doubt, seek permission or the advice of counsel.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley &; Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin

"No Copyright Infringement Intended" (Yeah, Right!)

Pure hearts and empty heads.

"No Copyright Infringement Intended" is a familiar disclaimer you see at the beginning and end of video mash-ups posted on YouTube. But is it an effective disclaimer?  Not really. That's because copyright is what is known as a strict liability tort. There is no pure heart and empty head defense to copyright infringement. For example, in the Harrisongs case, the court determined that George Harrison's song My Sweet Lord unintentionally infringed the Chiffons’ 1963 hit He’s So Fine.   

There is one limitation to the innocent intent is no defense to copyright infringement statement. YouTube, and other internet service providers, are shielded from secondary liability on the condition they remove infringing content posted by users when notified of the infringement by the copyright owner.    

While not a defense, intent is relevant for purposes of determining monetary damages. Simply put, bad-faith infringers are treated more harshly than innocent ones. One point of view is the deliberate affixing of a "No Copyright Infringement Intended" disclaimer is evidence that the person either knew they were infringing or recklessly disregarded the possibility. Unless the poster has a viable fair use defense, "no copyright infringement" is seen by many copyright practitioners as self-incriminating behavior.

In cases where the infringement is willful, depending upon the degree of culpability, a court can award between $750 and $150,000 per infringement, plus reasonable attorney's fees and costs. This is known as statutory damages in copyright jargon.     

When Mark Twain was accused of cribbing the dedication to his ironically titled The Innocents Abroad from a book of poems by Oliver Wendell Holmes, he quipped, "Adam was the only man who, when he said a good thing, knew that nobody had said it before him.” Twain's point, or purpose, wasn't forgiveness. He was driving home the point that his behavior was neither good nor bad. His subconscious was to blame. While mildly unrepentant, the explanation makes Twain appear less blameworthy than if he included a "No Copyright Infringement Intended" disclaimer on the reverse title page of the Innocents Abroad - or composed an apology that appeared insincere.

What was true for Twain was also true for Holmes, who reportedly laughed off the incident, saying there was no crime in unconscious plagiarism, which he said, "I commit every day." 

If you struggle with permissions issues, there's no reason to go it alone. Seek the advice of an experienced copyright attorney who can help you ascertain if permission is needed. Further, without an attorney, if you receive a cease and desist letter, you may not be able to know whether you have a valid defense such as fair use.  

Resources

Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F. 2d 1110 - Court of Appeals, 2nd Circuit 1986

ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F. 2d 988 - Court of Appeals, 2nd Circuit 1983

 

Related Blog Posts

 

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors 

 

What Every Author and Publisher Should Know About Media Liablity Insurance

By Lloyd J. Jassin & Steven C. Schechter

Publishing can be a risky business. 

 

Copyright infringement, defamation and invasion of privacy are just three of the media perils that authors, writers, bloggers, and publishers are exposed to. 

In addition to becoming familiar with fair use (a defense to copyright infringement), and clearing rights to preexisting materials when permission is required, you can reduce personal and business risks with author and publisher liability insurance.

 

Unlike comprehensive general liability policies, media liability policies cover claims of copyright and trademark infringement, invasion of privacy, defamation and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas, as well as a number of other media perils. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

What Should I Look for in a Media Perils Policy?

Insurance policies vary widely. It is important to emphasize your comprehensive general liability policy almost never protects you against the types of claims discussed in this article. However, if you are sued, or threatened with a lawsuit, your attorney should consult your policy to ascertain the scope of protection - if any - offered.  Keep in mind as well, that if your publisher is sued, the indemnity clause in your publishing agreement will make you responsible for legal defense costs, as well as for any settlement or damage award. 

In the following section we discuss what questions you need to ask when shopping for a media perils insurance policy.

1. Does the Policy Cover Attorneys' Fees?

Determine if the policy provides coverage for legal fees and defense costs, as well as payment of damages. Some policies have defense costs within the limit of liability, while others offer defense costs in addition to the limit of liability. Defense costs outside the limits of the policy provide broader coverage.  Other policies require you to obtain approval before incurring any attorneys' fee or expenses. It's also important to determine whether the policy requires the insurance company to defend a lawsuit against you.  If it does, you can save a tremendous amount of money in legal fees.  A secondary concern is whether the policy will allow you to choose your own defense counsel. 

2. Does the Policy Cover Punitive Damages?

Another key point to investigate is whether the insurance policy covers punitive or exemplary damage awards. Some states, such as New York, do not permit insurance companies to insure you against punitive damages. Because an award of punitive damages may be substantial (sometimes even more than actual damages and attorneys' fees), where permissible, you should make sure that your insurance policy will cover any punitive or exemplary damage award. 

3. Does the Policy Require a Lawyer's Opinion?

Many insurers will not issue a media risks policy unless the publisher, or author, provides an opinion letter from a publishing attorney analyzing the risks of a lawsuit. While the cost of hiring a publishing lawyer to vet your manuscript can be significant, it is another form of insurance in and of itself.  However, it is a cost that should also be taken into account when comparing policies and their rates.

While more common when insuring a film production, some policies will not insure the title of a work unless they receive a lawyer's title report.  While titles are not protected by copyright law, some may fall under the rubric of trademark law, especially titles that evoke an established brand, thus, creating a likelihood of confusion as to source or association with that brand.  Therefore, the cost of obtaining a title report should should be taken into consideration when shopping for coverage.  

4. What Types of Claims Are Covered?

It is important to speak with an insurance broker familiar with this type of coverage to find out exactly which types of claims are covered and which are not. For example, some policies cover claims of intentional infliction of emotional distress or misappropriation of ideas, while others do not. Other insurance policies offer optional coverage, for an additional fee, for claims for bodily injury or property damage resulting from negligent advice or instructions.

All writers and publishers should obtain a policy that covers, at a minimum, claims of libel (written defamation) slander (spoken defamation), invasion of privacy, violation of the right of publicity, copyright infringement, trademark infringement and unfair competition. Obviously, the more types of claims covered, the better the policy. Many insurance policies exclude certain claims, such as those alleging intentional or malicious acts, from coverage. It is important to find out what types of claims are excluded, as you will bear the cost of defending excluded claims yourself.

5. Which Versions of the Work Are Covered?

You should investigate whether the insurance policy will cover more than one version of your work. If your work will be published in hardcover, paperback, traditional eBook and multimedia form, make sure the insurance policy covers all of those versions.  Additionally, find out whether the policy covers condensed versions, serializations, audiobook and other versions of your work. Similarly, you should find out if coverage extends to book jackets, flap copy, press releases, advertising and promotional materials (including catalog copy and companion blog),  interviews and personal appearances.

6. Where Is the Policy Effective?

It may seem like a simple question, but many policyholders fail to ask whether their policy covers claims outside the United States. Most insurance policies cover claims only brought in the US. If your work is going to be distributed outside of the United States, you'd better make sure that your insurance policy will cover claims and lawsuits brought in any country where your work is sold, or translated.

7. Is the Policy a "Claims Made" or "Occurrence" Policy?

There are two types of insurance policies: "claims made" policies and "occurrence" policies.  An occurrence policy offers broader coverage.  A "claims made" policy covers claims made during the policy period, whether or not the actual activity which gives rise to the claim occurred before the policy came into effect. An "occurrence" policy covers material published during the policy period.  If your policy is a "claims made" policy, and a lawsuit or claim is brought the day after your policy expires, the insurance policy will not cover the claim even though the acts giving rise to the claim occurred while your policy was in effect. Alternatively, with an occurrence policy, it doesn't matter when the claim is made. As a rule, you should avoid "claims made" policies.

8. Settlement

As an author or publisher your freedom of speech or press rights are protected under the First Amendment of the United States Constitution, as well under most state constitutions.   Therefore, it's important to ask the broker if the policy gives you input into the selection of a qualified First Amendment or media defense counsel. 

Insurance Policy Prices

The premiums for media insurance policies vary depending a number of factors, including the amount or limit of protection you elect.  The premiums generally take into consideration several additional factors, including:

Whether you consulted a qualified publishing attorney. Most insurers allow rate card credits to authors and publishers who have their manuscripts reviewed by an experienced publishing attorney.

The type of book. For example, the premium for a science-fiction novel will be less than that for an investigative report, unauthorized biography, or roman a clef, which might result in a lawsuit for defamation or invasion of privacy.

Whether releases and permission forms have been secured, and if their scope cover all the uses, versions and editions of the work during the term and throughout the territory in which the work will be exploited.      

Whether you've cleared the title of the book.

Whether any claims have been threatened.

The amount of coverage sought and the deductible. As coverage goes up, so do the premiums, but as deductibles go up, premiums go down.

The writer's experience and reputation.

If you are a publisher, the adequacy of the author or other contributor's contractual representations and warranties as to originality of content and factual accuracy of information.  

The use of appropriate disclaimers.

          The revenues you expect to derive from the sale of your work.  

If you are an author, you can ask your publisher to name you as an additional insured under their media perils policy, if they carry one.  However, don't be lulled into a false sense of security, as these policies often have very high deductibles, which are used to lower the publisher's insurance costs. 

If there is already a claim made against a book, an insurance company may refuse to insure you, or exclude the preexisting claim.   For this reason, think twice about publishing all or part of the book online, or in a magazine or newspaper before the official book is published.

INSURANCE CHECKLIST

While not an exhaustive list, here is a checklist of points to raise with the broker when shopping for a media perils policy:

          What types of claims are covered?  

     

          What is the period of coverage? 

What is the deductible and the limits of coverage for each claim? 

Are legal fees and defense costs covered separately or in addition to the maximum policy coverage? 

What are the conditions for coverage, i.e., is prepublication review and an opinion letter by an attorney required? 

Who is covered (publisher, author, or both)? 

Is there an additional charge or fee for naming an author as an "additional insured" party? 

Are lawsuits outside the United States covered? 

Is the policy a "claims made" policy or an "occurrence" policy? 

Does it cover translations or other editions of the work (e.g., mass market paperback, trade paperback,  eBook versions, etc.)? 

Are punitive damages covered? 

Do you have the right to have your own attorney represent you or does the insurance company require their attorney? 

Can the insurance company settle a case without your approval or do you have the right to approve settlements?

Resources

Organizations such as the Authors Guild and National Federation of Press Women, offer its writer members affordable media perils insurance policies. If you are a small independent publisher, contact the Independent Book Publishers Association (IBPA). 

 

Related Blog Posts

 

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

LLOYD J. JASSIN is a New York-based publishing attorney and entertainment lawyer in private practice. He is co-author of the bestselling Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg, FL 12, 1501 Broadway, New York, NY 10036, Tel: (212) 354-4442, email: jassin@copylaw.com. Follow him on Tweeter:  https://twitter.com/lloydjassin

STEVEN C. SCHECHTER is a media and entertainment law attorney based in Paramus, NJ, and co-author of The Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Steven C. Schechter, 36 Farview Ter, Paramus, NJ 07652, Tel: (201) 880-9818, email: schechter@medialawyer.tv

In the Fight Against Piracy, Are Curses the Answer?

Outside of a Dog #5

Outside of a Dog is an irregular, and sometimes satiric, series that features publishing wisdom from a variety of classic and contemporary sources. As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases. The title is borrowed from Groucho Marx, who famously said, "Outside of a dog, a book is man's best friend. Inside a dog, it's too dark to read." Like the challenge of reading inside a dog, this collection records the fact that authors and publishers trying to strike a balance between literary merit and financial need, labor in the dark without any economic certainty.

Curses! Gory, gruesome, nasty, cautionary, score settling notices drafted by Egyptian priests, were designed to stop book thieves and plagiarists in their tracks. The copyright notice was created by Congress in the 19th century. It says to those who notice, "I own this" (with reservations).


What takes place within us when confronted by a curse or a copyright notice?  Curses conjure up fear.  You read the text carefully and are forced to reflect on what you are reading - and your mortality.  The copyright notice is seen by most as a toothless warning of remote judicial remedies.  It doesn't scream.  So, it doesn't register.  Plus, it doesn't help that the copyright notice symbol resembles a frown emoticon resting on its side.  

Proper Usage

To get the most out of a curse (or a copyright notice), it must be displayed prominently.  With a curse, knowing you've been cursed, makes the curse more potent.  Similarly, copyright law provides for more potent penalties against willful or knowing infringers, than innocent ones. 

Instead of monetary damages designed to make the plaintiff whole, curses express the wrath of a vengeful god.  Crushing, killing and strangling, rather than monetary damages, are brought to mind when you open an illuminated manuscript.  That is precisely why ancient warnings that bear down on one's mortality, trump copyright notices.

If you are looking for inspiration, below are some classic curses, all of which are in the public domain.      

In Biblioclasm, author (and professional medieval illuminator) Marc Drogan, identifies the following as the most famous literary curse.  I still works.

"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book."  -- Revelations, 22:19

The Christian church didn't have a monopoly on literary

Moshe Ben-Asher Codex

curses.  Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew bible, since each of the 304,805 letters that comprised it had divine meaning.  The following lines written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:

"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord.  He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."

The warning associated with the Moshe Ben-Asher Codex concerns rights in the text, not ownership of the copy. It can be interpreted as a early form of copyright control.  Under copyright law, the exclusive right to adapt resides with the owner of the text, not the owner of a particular copy of a book.  Personally, I think disgorgement of an infringer's profits (a remedy under copyright law) better fits the crime than broken bones or necrotizing fasciitis.  But, that’s just me. 

Medieval colophons, the antecedent to the copyright notices, appeared, initially, as concluding statements at the back of manuscripts.  The colophon would indicate the work's title, the scribe or copyist (not the author), date and place of copying, and contain either a blessing or a curse.  So, while a direct connection between the colophon and copyright notice may appear fuzzy, the common assertion of ownership rights, and threat of consequences for those who violate those rights cements the connection in my mind.  

Geoffrey Galister, in the Encyclopedia of the Book (Oak Knoll/British Library), explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen.

By the early 18th Century, secular threats of legal

Statute of Anne (1709)

action supplanted curses.  With the passage of the Statute of Anne in 1709, England's first copyright act, the regulation of unauthorized copying was transferred from god's exclusive jurisdiction to her Majesty's courts.  In 1802 the U.S. Copyright Act was amended to require a notice be placed on each copy of a work.  For 187 years, until the notice requirement was abandoned, if a work was published without the proper form of notice, it was cast down into the public domain.  While we live in post-notice world, notices are still wildly used, but, their significance is information, not legal.  They announce who owns the copyright.           

Like colophons, which list special aspects of the book, such as the paper variety or type style used, copyright notices generally appear on the title page, or reverse of the title page. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a nasty warning, not a curse.   Here's a mildly threatening one: 

ALL RIGHTS RESERVED.  No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher. 

Compare the polite "All Rights Reserved" legend found in close proximity to many copyright notices, with your average illuminated manuscript curse.  If you were lent a manuscript and failed to return it, or made an unauthorized copy, you - and perhaps your forebears and children -- were forever cursed.  In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets.  Copyright notice or book curse?  A strong argument can be made for the latter. 

Before March 1, 1989, if a copyright owner failed to affix a copyright notice to a work, the work was ejected into the public domain.  Of course, a public domain work may still be covered by a protective curse.  This is another  advantage of a curse over a copyright notice - however, one that does not comport with strict First Amendment scrutiny.   

King Assur-bani-pal

According to Drogin, the oldest known book curse appears on cuneiform tablets found in the biblical city of Ninevah.  Like today's authors, Babylonian King Assur-bani-pal  (668–626 BC) wasn't just concerned with protecting against theft, but receiving credit for his work.  The French call it “droit moral” – an author’s right to defend the integrity of their work and the use of their name.   King Assur-bani-pal imprinted this form of notice on his royal records: 

"Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land."

The profound fear of being forgotten loomed as large in Babylonia as in nearby Egypt.  Removing the name of a king from a cuneiform tablet meant he never existed.  Much the same can be said for failing to credit a writer of a screenplay, whose livelihood (and footnote in history) depends on the works which bear their name.  

Whether a curse or an unobtrusive copyright notice, these admonitions are powerful starts to the reading experience.  Where does the power come from?  Fear.  

Monk, Christ Church

"May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment."

Before Johannes Gutenberg's invention of the printing press in the mid-1400s, books were precious objects worth fighting over.  Coveted by the wealthy elite, stolen in a prior era by marauding Norsemen, literary monks went to great lengths to protect their collections of valuable manuscripts.  Not only did they employ curses, but, they tethered their bibles to bookshelves and lecterns with chains.    

As the fifteenth century became the sixteenth, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies, and protect the livelihood of authors and publishers.  German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:

Albrecht Dürer Print

"Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximilian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger."

A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind. Dürer's transitional curse succeeds at both tasks. 

Conclusion

Tensions between copyright law and freedom of speech aside, a serious dilemma exists. How do you effectively retaliate against digital pirates?  There are no good answers.  However, six-months after downloading a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition, Bonnie Foreman of Sheepshead Bay, Brooklyn was found dead in her home in front of her computer.  She expired around page 123.  Curse or coincidence?  I cannot say for sure.  I'm a copyright attorney, not a shaman.     

2015  - 2017 Lloyd J. Jassin. All Rights Reserved.   

Disclaimer / Curse: This article is protected by the Eye of Horus.  If you infringe this article, may you be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*. Please note that this article is not designed to give any specific advice concerning any specific circumstances. Readers are strongly cautioned to consult an attorney before consulting a practitioner of the occult arts.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.

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Resources

The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.
Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy. U. Chi. LJ. 1992