Here is my Answer based on the facts as I understand them.
OK, so there was a book that was hand printed, 90 times, in 1896-1897, and distributed to someone (I am assuming the public).
If the books were published with copyright notice they are clearly now in the public domain. All books published before 1923 are now in the public domain (with notice or without notice).
So what if the 90 books were publicly distributed without notice? Would that small a number of books qualify as being “publicly distributed” to the point copyright rights are forfeited?
Let us look at § 405 of the copyright act.
§ 405 . Notice of copyright: Omission of notice on certain copies and phonorecords6
(a) Effect of Omission on Copyright. — With respect to copies and phonorecords publicly distributed by authority of the copyright owner before the effective date of the Berne Convention Implementation Act of 1988, the omission of the copyright notice described in sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if —
- (1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or
- (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or
- (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice.
Thus, as a general rule, any work publicly distributed by its owner prior to March 1, 1989, without notice of copyright, is injected into the public domain and not subject to copyright protection. 17 U.S.C. § 405(a). William A. Graham Co. v. Haughey (ED Pa 5/4/06)
So, YES, distribution of the 90 copies without notice would be a public distribution . . . but . . . did such distribution put the work in the public domain?
Yes it did, UNLESS, one of the safe harbors applies.
As presented above, §405 of the Copyright Act provides three exceptions to the general rule that public distribution of a work, prior to March 1, 1989, without notice of copyright injects it into the public domain.
covers unauthorized distributions which would keep the unauthorized 1963 distribution from putting the work in the public domain.
covers “limited distribution”.
OK, "limited distribution" possible here under your facts.
With regard to (statutory, via 405) “Limited Distribution”, there is no bright-line rule for making this determination. Ford, 930 F.2d at 295.
However, the courts have noted that one factor that a district court may consider is what percentage of the total distribution the copies made without notice of copyright represent. Id. at 296.
In Ford, 4 million copies were distributed without copyright but such amount only represented 4% of the total works distributed.
In Graham, only 25 to 30 works were distributed without copyright notice but that amount represented 100% of the works distributed. Thus, Graham cannot establish that the safe-harbor provision of §405(a)(1) saves the copyright for the material that was distributed to clients without notice of copyright prior to March 1, 1989.
In your case, it is my understanding that all 90 books (100%) were distributed without a copyright notification. Thus, based on Graham, it is unlikely the “Limited Distribution” safe-harbor provision of § 405(a)(1) applies.
So now we need to consider the concept of “Limited Publication”.
Even if a work does not meet the requirements of the statutory safe-harbor provisions (such as “Limited Distribution”), it may still be saved from being deemed in the public domain by the “Doctrine of Limited Publication”.
Prior to 1989 (i.e. before the US passed the Berne Convention Implementation Act), there were three paths under the common law to which a work could be exposed to the public or enter the public domain:
(1) exhibition or performance of the work;
(2) limited publication; and
(3) general publication. Burke v. Nat'l Broad. Co., 598 F.2d 688, 691 (1st Cir. 1979).
Only one such path, however, would extinguish the creator's copyright in a work and the road to such loss is called general publication. Id.; see Brown, 498 F.3d at 23.
So limited publication would keep a work out of the public domain.
A general publication is "when a work is made available to members of the public at large without regard to who they are or what they propose to do with it." Burke, 598 F.2d at 691. That is, a general publication consists of such a level of circulation within the public sphere that a work may be deemed "dedicated to the public and rendered common property." Id. Conversely, a limited publication "occurs when tangible copies of the work are distributed, but to a limited class of persons and for a limited purpose." Id. at 692.
Under this doctrine, a publication without notice of copyright will not divest an author of copyright protection under § 405(a) if the author establishes he or she has done all of the following:
(1) "'communicates the contents of a [work] to a definitely selected group'";
(2) "'for a limited purpose'"; and
(3) "'without the right of diffusion, reproduction, distribution or sale.'" Brown v. Tabb, 714 F.2d 1088, 1091 (11th Cir. 1983) (quoting White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952)); see also Unix Sys. Lab., Inc. v. Berkeley Software Design, Inc., No. Civ.A. 92-1667, 1993 WL 414724, at *13 (D.N.J. Mar. 3, 1993).
Notably, the number of individuals to whom the work passes is irrelevant to the inquiry of limited publication because a general publication can be found even though only one copy of a work passes to one member of the general public. Ford, 930 F.2d at 299-300.
I find it difficult to believe that the alleged copyright owner has evidence to support all three requirements of the doctrine of limited publication. He would have to have (1) proof as to the identity of the group the 90 books went to and that they were a “selected” group; (2) the distribution was for a limited purpose; and (2) proof of a non-disclosure type agreement.
All that from 1896. Right. Unlikely.
All that said, the alleged copyright owner can still sue and threaten to sue. All one can do is file for a Declaratory Judgment based on a reasonable apprehension of being sued.
Not cheap but you get to pick your forum (i.e. where the suit is prosecuted) instead of letting the copyright owner pick the forum.