In the court order I mentioned in the immediately preceding post, the following sentence caught my eye: “At the bottom of each page of the [product purchase agreement], there is a copyright notice that reserves all rights in the document to Nokia, indicating that Nokia was likely the drafter of the contract.”
It’s rare that I encounter any mention of including a copyright notice in a contract, so I thought it worth revisiting the topic.
In a 2006 New York Law Journal article I discuss copyright aspects of contract drafting (go here for a PDF copy). Here’s what the article has to say about copyright notices:
One element of any copyright protection program would be to include a copyright notice in each iteration of a given contract. A notice wouldn’t be necessary—innocent copying is not a defense to copyright infringement—but it would put others on notice of your copyright and would likely dissuade copying. It would be best to place the copyright notice in the body of the contract, among the “miscellaneous” provisions, rather than putting it in a footer, given that footers are often omitted when a contract is copied. In particular, a copyright notice that’s in a footer would likely be omitted when a contract is filed on EDGAR.
Something I omitted from this account is that if a work bears a copyright notice, a court likely wouldn’t give any weight to a claim by the defendant that its infringement was innocent—that it hadn’t realized that the work was protected. An innocent-infringement defense can reduce the damages that an infringer would otherwise be required to pay.
Including a copyright notice in a contract would likely make sense only if (1) the contract exhibits originality and creativity and (2) the copyright holder is also party to the contract. For example, even though a law firm would likely own the copyright in a contract that it had drafted for a client, that client would likely be disconcerted to find in the contract a copyright notice to that effect.
Have you ever used a copyright notice? Could you imagine ever doing so?