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Do I Need to Use the © Symbol?

The copyright symbol © is one of the most recognized symbols in the world.  The reason it is so well known is that for quite a long time, it was required that creators display the © symbol on their artistic works to receive the benefit copyright protection. Look at any movie poster and you will see a copyright symbol with the name of the copyright holder and the year of the work’s publication or first use. Then, on March 1, 1989, the United States signed on to the Berne Convention and all that changed.

The Berne Convention
 for the Protection of Literary and Artistic Works is an international agreement governing copyrights.  There are currently 167 members countries signed on to the agreement.  The interesting thing about the Berne convention is that it prohibits formal requirements that affect the “exercise and enjoyment” of the copyright. The U.S. requirement that all copyright holders use the © symbol was incompatible with the Berne Convention so the requirement was dropped.  The © is now optional for works created after 1989.

The DMCA prohibits individuals from removing information about access and use of copyrighted materials

Regardless, using a © symbol on your creative works does provide certain advantages.  Copyright is a no fault law, requiring no intent on the part of the infringer. It doesn’t even matter whether an infringer knows that they are infringing; they are still liable. However, what amount the infringer will be required to pay for the infringing activity depends upon the intent. “Innocent infringers,” generally, will be required to pay the least in damages. But copyright notice information on a creative work can negate a defense of innocent infringement.  An infringer cannot claim they were unaware that the work was under copyright protection if the © symbol is staring them in the face. 

The second advantage in using the © comes through the Digital Millennium Copyright Act (DMCA). The DMCA provides penalties for removal of Copyright Management Information (CMI).  Courts have ruled that the copyright notice qualifies as CMI.  So if the © copyright notice is removed, then that will invoke the penalties under the DMCA. Removal of CMI happens quite often when people steal images off the Internet. The infringer removes the copyright notice either because it looks bad or because they think it hides their infringing activity.  The DMCA provides up to $25,000 in penalties per offense for this action. However, unlike copyright infringement, circumvention does require some intent, so if an infringer steals an image off the web with the copyright notice already removed, they may not be liable.  However, they would have to show they or their agents were without knowledge of the © notice, which is not always easy. For artists who often sign their work, that is also considered CMI. Digital copies of the works should use the © symbol.  There is also no requirement regarding size to be an acceptable CMI, but certainly, it should be legible.

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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