Is "The Naked Kiss" Missing Copyright Notice?

Criterion's pristine version
of "The Naked Kiss"

Dear Rich: I'm having a debate over the legitimacy of a chain of title of the motion picture, "The Naked Kiss" (1964). There are very clear records in the post-1978 Copyright Office database indicating copyright ownership but this person is insisting it is an invalid copyright because there is no “©” insignia anywhere on head or tail. I’ve found a lot of confusion about this, but my understanding is that even without an insignia, its creator could have copyrighted it. Does the absence of the insignia mean that the film is public domain?
Nowadays, the publication of a film without copyright notice won't effect ownership, but in 1964, the penalty was draconian. If the copyright owner failed to include a copyright notice on "The Naked Kiss," then it would likely be in the public domain. This was the rule until March 1, 1989, when the notice requirement was terminated.
Is the copyright notice missing? Distributors of public domain films have considered "The Naked Kiss" as PD for at least twenty years. Ditto for online sources such as the Internet Archives. The IMDB entry states, "No copyright year is shown at the beginning/end credits." [Link may require a subscription.] A proper copyright notice includes (1) the copyright symbol © or the word, "copyright", (2) the year of first publication, and (3) the copyright owner's name. Under the copyright law effective when "The Naked Kiss" debuted, a notice was defective if the date was missing.
What about the copyright records? Documents filed at the Copyright Office as recently as 2011 indicate that various parties controlled copyright to "The Naked Kiss". Yet, if they control copyright why do they permit so many vendors to distribute the film freely? It may be because a lawsuit over the film (we couldn't find any) would officially designate it as PD thereby denying future licensing revenue.

Can I Use Promo Photos from The Virginian?

Dear Rich: I was one of the co-stars in The Virginian TV series and a friend who is creating a Wiki page for me (about to publish my first novel) and asked if the publicity photos taken of me back in the mid-60s were my property or had the copyright to them expired. I know they aren't my property, but don't know about expired copyrights and wondered if you could shed some light on whether I need to contact NBC for use of the photos on Wiki?
We can't say for sure who owns the rights to The Virginian's publicity photos, but if they're like many other publicity photos from that time (The Virginian ran from 1962-1971), there's a good possibility that they're in the public domain.
The Wind and the Wizard.  Works published before March 1, 1989, were required to include copyright notice so if the Virginian's publicity stills were distributed without a notice (the word "copyright" or "©" and the name of the owner), you're free to use them. It wasn't uncommon for stills to lack notice.

"An issue of recurring application is publicity photos for motion pictures from the 1920's through 1970's. The films themselves from that era were routinely protected as validly noticed and registered works; but much less care was typically exercised during production and in the publicity office. (1-4 Nimmer on Copyright § 4.13[A][3].)

In some situations, the lack of notice might have been deliberate. A notice might have discouraged reproductions and the whole point of these 8 x 10 glossies was to get publicity. In one case that arose over the use of posters and promo photos from the films The Wizard of Oz and Gone with the Wind, the Eighth Circuit Court of Appeals ruled the materials entered the public domain when they were distributed without a copyright notice.
Before 1964?  If any of the stills were distributed before 1964 it's likely they entered the public domain. Works published before 1964 had to be renewed and only a small percentage (estimated to be less than11%) met that requirement.
If it is still under copyright ... there are a few things to consider:

• Who owns the copyright? It's probably either NBC or the production company that created the show (or an assignee of either of the two). It's possible but unlikely that the rights for promo photos were transferred to a third party stock photo house such as Getty. That's easy enough to check using Google's Reverse Image Search
• Will the copyright owner learn of your use, and if so, will they care? If a reverse image search confirms several unauthorized uses, that may indicate that either (1) the copyright owner is not trolling the web for old promo photos, or (2) the copyright owner doesn't care about those reproductions. If the owner of the photos also owns rights to the TV series, it wouldn't be good publicity to go after a former star of the show while the show is still in syndication.
• Does your posting of the picture constitute fair use? Based on the four fair use factors, we think you have a strong fair use argument. However, as we always warn, fair use is a defense made when the case is being litigated --  already an expensive proposition.

Can Trader Joe's Stop My Book?

Dear Rich: I wrote an 84-page culinary history book proposing that Trader Joe's changed the way America eats. I self-published it recently (as it is their 50th anniversary this year.) The book analyzes a March 1982 flyer, which TJ's had mailed to our house. I scanned the flyer and cut up the food descriptions, then organized them into types of food to provide commentary on food "then and now" as well as commentary on the writing in the flyer as the company encouraged people to discover new foods. There are multiple disclaimers on the book that this was not published by TJ's, and the text of the book is all positive. Once I published the book on Amazon, they stated I did not have the right to use the flyer images. Is this fair use? The illustrations and artwork are all original. There is no copyright statement on the flyer! Only an (R) to trademark the flyer name of "Insider Report."
We've reviewed your book and we're not sure why the company is objecting.
No copyright, no cry. We believe that the failure to include copyright notice placed the flyer into the public domain, making it available for anyone to use. For works published before March 1989, authorized publication without notice typically doomed works, unless excused. (By the way, the U.S. was the only country following this rule.) Even if the flyer were not in the public domain, you have one of the stronger cases for fair use that has crossed the Dear Rich Staff's desk. Only one of the four fair use factors -- the amount and substantiality of the portion taken -- weighs against you. Otherwise, your reproduction of this 35-year old advertisement is highly transformative and should not deprive the $13-billion-a-year chain of any potential market share.
Trademark rights. A company can object if its trademark is used in a manner that confuses consumers as to source --  for example, consumers believe your book is sponsored or authorized by Trader Joe's. This is unlikely considering your prominent disclaimer and your failure to include the company's distinctive lettering or logos. Further, as we've written before, the use of a company's trademark is permitted for editorial purposes, which is clearly the case here. We also don't think there's any trademark dilution.
Bottom Line Dept. It's difficult to understand why the grocery chain is objecting to your book, especially considering how TJ-positive it is. We can only chalk it up to too much Cookie Butter.
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