
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1446                               CHARLES GARNIER, PARIS,                                Plaintiff - Appellant,                                          v.                          ANDIN INTERNATIONAL, INC., ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                              Torruella, Selya and Cyr,                                    Circuit Judges.                                   ______________                                _____________________               John D.  Deacon, Jr., with  whom Flanders &  Medeiros, Inc.,               ____________________             __________________________          was on brief for appellant.               Julius  Rabinowitz,  with  whom Josephine  Bachmann,  Kuhn &               __________________              ___________________   ______          Muller, Esqs., William Richard  Grimm, Christopher M. Neronha and          _____________  ______________________  ______________________          Hinckley, Allen & Snyder, were on brief for appellees.          ________________________                                 ____________________                                   October 7, 1994                                 ____________________                    TORRUELLA,  Circuit Judge.   This  case requires  us to                                _____________          determine  the   proper  application  of  the   so-called  "cure"          provision of the copyright laws, 17 U.S.C.   405(a), which allows          authors seeking copyright protection to remedy a prior failure to          affix notice of  copyright to  copies of their  creative work  in          order  to  avoid forfeiting  protection  of  the copyright  laws.          Because the requirement of  copyright notice was recently removed          from  the statute, some confusion has arisen over the application          of the cure provision  in cases where copies without  notice were          distributed  before or  after the  change  in the  law.   We  are          presented here with such  a case.  The district court  found that          the cure  requirements applied in  this case and  granted summary          judgment  on  the ground  that a  proper  cure was  not effected.          Although  we disagree that  some of the facts  relied upon by the          district  court are  undisputed, we  find that the  court's legal          conclusions  are  correct and  affirm  the judgment  based  on an          alternative version of facts that are not in dispute.                                    I.  BACKGROUND                                    I.  BACKGROUND                    Plaintiff-appellant, Charles Garnier, Paris ("Garnier")          is  a  French  company  engaged in  the  business  of  designing,          manufacturing  and selling  fine  jewelry around  the world.   In          1987, a Garnier employee designed a piece of jewelry known as the          Swirled Hoop  Earring.   Garnier  first  showed and  offered  the          Swirled Hoop Earring for sale publicly in April of 1988.  Garnier          has   distributed   the   Earring   ever   since   to   customers          internationally and in the United States.                                         -2-                    Defendants-appellants  Andin  International,  Inc.  and          Jotaly,  Ltd.,  a  corporate affiliate  of  Andin,  (collectively          referred  to as  "Andin")  manufacture and  sell  jewelry in  the          United States.   In 1990, Andin  began manufacturing and  selling          identical copies  of the  Swirled Hoop Earring  without Garnier's          knowledge or  authorization.  In July of 1992, Garnier discovered          that Andin  was producing  and distributing infringing  copies of          its  Swirled Hoop  Earring.   Garnier immediately  registered its          copyright in the earring  at that time,1 asserting that  this was          the  first   time  it  had  ever   considered  seeking  copyright          protection for that piece.                    Prior to  the registration of the  Swirled Hoop Earring          design in July of  1992, none of Garnier's Swirled  Hoop Earrings          carried  a notice of  copyright.2  After  registering the Swirled          Hoop Earring, Garnier's factory  immediately began placing notice          of copyright on every  copy of the Swirled Hoop  Earring produced          thereafter.   Garnier claims  that, once it  discovered Andin had          copied  the  Swirled Hoop  Earring,  it  discarded all  remaining          Swirled  Hoop Earrings in its  own inventories that  did not have          proper notice, and refrained from  delivering any of the earrings          without notice to its  retail customers.  Thus, all  of Garnier's                                        ____________________          1    The Swirled  Hoop Earring  is  copyrightable as  an original          sculptural work.  17 U.S.C.   102(a)(5).          2   Copyright notice for jewelry consists of the copyright symbol          or the word "Copyright," followed by the name of the owner of the          copyright, "affixed" to  each copy in  such a manner as  "to give          reasonable notice of the claim of copyright."  17 U.S.C.   401(b)          & (c).                                         -3-          distributions of  the Swirled  Hoop  Earring after  July of  1992          contained notice of copyright.                    The parties dispute whether  copies of the Swirled Hoop          Earring existed in  retail stores selling Garnier's jewelry as of          July of 1992.  Garnier's customers consist  of independent retail          jewelers, retail  jewelry chains,  multiple  store locations  and          department stores.  Although  there are 150 such  customers, only          50 are continuing or  repeat costumers.  Garnier claims  that its          customers  had little,  if  any, inventory  of  the Swirled  Hoop          Earring at  the time  Garnier  "discovered" the  need to  provide          copyright notice in  July of  1992.  According  to Garnier,  mid-          summer is the low point in the business cycle for retail  jewelry          because inventories are used  up and new orders  go out for  fall          delivery.   In  September of  1992,  however, Andin  purchased  a          Swirled  Hoop   Earring  at  Bloomingdale's,  one   of  Garnier's          customers, which did not bear any copyright notice.  Garnier also          sent a letter to its fifty largest customers stating  that it had          registered  a copyright in the Swirled Hoop Earring.  One Garnier          official admitted  that the letter  was sent  in case any  of the          retailers   still   had  the   earring   in  their   inventories.          Ultimately, Garnier  simply did not  know how  many Swirled  Hoop          Earrings  its retailers still had in their inventories as of July          of 1992.                    The  letter  that Garnier  sent  to  its fifty  largest          customers  was  the only  remedial effort  taken by  Garnier with          respect  to the Swirled  Hoop Earrings still  remaining in retail                                         -4-          store inventories in direct response to the July, 1992  discovery                               __________________          of Andin's infringement.   In the letter, Garnier stated  that it          held  a  copyright  in the  Swirled  Hoop  Earring,  but did  not          indicate that copyright notice had been omitted from the earrings          in the retailers' inventories or that there was a need to rectify          the  omission by adding notice  of copyright.   Garnier claims it          did not send the letter to the other 100 retail customers because          those customers were only one-time purchasers of the Swirled Hoop          Earring, and  they were  therefore unlikely  to have  any Swirled          Hoop  Earring  inventory left  by July  of  1992.   Garnier never          offered to  send a tag or label bearing a copyright notice to the          retailers  for   placement  on  any  unnoticed   items  in  their          inventory.                    Garnier did  have another arrangement, already in place          by the  time Garnier discovered  Andin's infringement in  July of          1992, that was designed to provide a general notice of copyright.          Beginning in 1990, Garnier provided all its retail costumers with          a "story card" and instructed  them to include the card  with the          sale  of all Garnier products to purchasing consumers.  The story          card  stated, among other things,  that the purchased  piece is a          "Charles Garnier of  Paris original . . .   genuine 18 karat gold          copyrighted design," and  that "every Charles Garnier design is a          genuine  copyrighted  original."     The  card  says  nothing  in          particular about  the Swirled Hoop Earring, the lack of copyright          notice,  or  the  need  to  affix  notice  to  unnoticed  pieces.          Although  the story  card  was not  attached  or affixed  to  the                                         -5-          jewelry  pieces themselves,  Garnier claimed  that its  retailers          gave the story card to every customer who bought Garnier jewelry.          Garnier occasionally checked to confirm this but generally relied          on the retailers' word that they were providing the story card to          purchasers of Garnier jewelry.                    Garnier   brought  this  action  in  October  of  1992,          asserting  two claims  of copyright  infringement  against Andin.          Count I  of  the  complaint  alleged  that  Andin  had  infringed          Garnier's  copyright in  the Swirled  Hoop Earring  and Count  II          alleged that  Andin had infringed Garnier's  copyright in another          piece of jewelry.   The claim in Count II was  eventually settled          and is not presently before us.  In May of  1993, Garnier filed a          motion  for a  preliminary injunction against  Andin's continuing          manufacture and distribution of  copies of Garnier's Swirled Hoop          Earring.   Andin then filed a motion for partial summary judgment          as  to Count  I  of  the complaint.    Following  a hearing,  the          district  court  denied   Garnier's  motion  for  a   preliminary          injunction and granted Andin's motion  for summary judgment as to          Count I.   The court  concluded that Garnier's  copyright in  the          Swirled  Hoop  Earring had  been  forfeited  because Garnier  had          omitted notice of copyright from the Swirled Hoop Earring when it          was first  published and  subsequently failed to  take reasonable          efforts  to cure that  omission.  Entry  of final judgment  as to          Count I was made by the court under Rule 54(b) on March 2,  1994.          Garnier  appealed  and,  after  ordering the  district  court  to          provide  a more expansive statement  of the reasons  for its Rule                                         -6-          54(b) certification, we heard the present appeal.                                    II.  ANALYSIS                                    II.  ANALYSIS                    A.  What Efforts To Cure, If Any, Are Required?                    A.  What Efforts To Cure, If Any, Are Required?                        __________________________________________                    This case  centers around  the "cure" provision  of the          copyright statute, 17 U.S.C.    405(a).   This  provision enables          would-be  copyright holders  who  have failed  to provide  proper          notice  on a creative work  for which they  seek protection under          the copyright  laws to  avoid forfeiture of  protection for  that          work  by  taking various  remedial measures.3    See 2  Nimmer on                                                           ___    _________                                        ____________________          3  17 U.S.C.   405(a) provides:                      (a) Effect of  Omission on Copyright.  --                      (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                      phonorecord   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                                         -7-          Copyright   7.13[B] (1985)  [hereinafter Nimmer]; Note,  Omission          _________                                ______          ________          of Copyright Notice  Under Section 405(a): What  Kind of Oxymoron          _________________________________________________________________          Makes  a Deliberate  Error?,  60  N.Y.  U.  L.  Rev.  956  (1985)          ___________________________          [hereinafter  Note,  Omission of  Notice].    Under    405(a)(2),                               ___________________          failure to affix  proper notice to certain copies of  a work will          not result  in forfeiture of copyright protection if, within five          years after the first  publication of a copy without  notice, the          work  is registered  at the  Copyright  Office and  a "reasonable                                                         ___          effort"  is  made by  the  author to  add  notice  to all  copies          distributed  to   the  public   "after  the  omission   has  been          discovered."   17 U.S.C.    405(a)(2); Princess Fabrics,  Inc. v.                                                 _______________________          CHF,  Inc., 922  F.2d 99,  103 (2d  Cir. 1990);  Donald Frederick          __________                                       ________________          Evans v. Continental Homes, Inc., 785 F.2d 897, 905-12 (11th Cir.          _____    _______________________          1986);  Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189,                  ____________________    __________________          193-94 (2d Cir.  1985); Shapiro  & Son Bedspread  Corp. v.  Royal                                  _______________________________     _____          Mills Assoc., 764 F.2d 69, 72-75 (2d Cir. 1985).          ____________                    Prior  to  March  of  1989,  notice  of  copyright  was          mandatory, thus proper cure for  omission of copyright notice was          required  for  all copies  distributed  to the  public  after the          omission  of notice  was discovered.   Nimmer    702[C],  at 7-15                                                 ______          through 7-16.   In 1988, the copyright statute was amended by the          Berne Convention Implementation Act of 1988 ("BCIA"), Pub. L. No.          100-568, 102 Stat. 2853  (amending 17 U.S.C.    101 et seq.),  in                                                              ______                                        ____________________                      phonorecords,  they  bear the  prescribed                      notice.          Garnier  has not claimed that   405(a)(1) or   405(a)(3) apply in          this case, so we confine our discussion to   405(a)(2).                                         -8-          order  to  bring  the  United  States  in  line  with  the  Berne          Convention  on Copyright,  an international  convention aimed  at          harmonizing  copyright law around the world.  Nimmer   702[B], at                                                        ______          7-14.   Consequently, effective March  1, 1989, the attachment of          notice of  copyright  is no  longer  required to  gain  copyright          protection for  creative works,  although it is  still encouraged          through various incentives.  Id. at 7-14, 7-16; see, e.g., Direct                                       __                 ___  ____  ______          Marketing of  Va., Inc. v. E.  Mishan & Sons, Inc.,  753 F. Supp.          _______________________    _______________________          100,  104   n.8  (S.D.N.Y.   1990).    The   aforementioned  cure          requirements provided  in   405(a), however, are  retained in the          amended statute  and apply  to "copies and  phonorecords publicly          distributed  by  authority  of  the copyright  owner  before  the          effective date of the  [BCIA]."  17 U.S.C.   405(a);  Encore Shoe                                                                ___________          Corp. v. Bennett Indus., Inc., 18 U.S.P.Q. 2d  1874 n.9 (D. Mass.          _____    ____________________          1991);  Nimmer    7.13[B].   One  issue  bedeviling this  case is                  ______          whether  the BCIA  amendments have  eliminated Garnier's  need to          cure some or all of the copies of the Swirled Hoop Earring, given          that Garnier first distributed copies prior to the effective date          of  the BCIA  amendments, but also  distributed copies  after the          amendments went into effect.                    Before we  address that  issue, however, we  must first          review  the district court's determination  of the point at which          Garnier  "discovered"  its  omission   of  copyright  notice  for          purposes of the cure provision.  17 U.S.C.   405(a)(2) (requiring          a  "reasonable effort" to add notice to all copies distributed to          the public after  the omission of notice "has  been discovered").                                                    ____________________                                         -9-          The discovery date is important for determining the date at which          cure  efforts should  commence  and for  determining whether  the          "delay,"  if  any,  between  discovery  and  cure  is  such  that          subsequent cure  efforts can no longer  be considered reasonable.          See,  e.g., Princess  Fabrics, 922  F.2d at  103; Valve  & Primer          ___   ____  _________________                     _______________          Copr.  v. Val-Matic Valve & Mfg.  Corp., 730 F. Supp. 141, 143-44          _____     _____________________________          (N.D. Ill. 1990).                    1.     When  was  the  Omission   of  Copyright  Notice                    1.     When  was  the  Omission   of  Copyright  Notice                           ________________________________________________          Discovered?          Discovered?          __________                    Garnier  claims  that  it  discovered the  omission  of          copyright notice on copies of its Swirled Hoop Earring in July of          1992 -- when  Garnier found out that Andin  had produced and sold          copies  of the Swirled Hoop  Earring design.   The district court          found, however, that Garnier "should have known"  of the omission          of  notice when  Garnier initially  distributed the  Swirled Hoop          Earring  in  April  of  1988.    The  district  court  concluded,          therefore, that  Garnier "discovered"  the omission of  notice on          that date.   On appeal, Garnier asserts that the court erred both          legally and factually.  We agree only with the latter assertion.                    Courts   and   commentators   have  developed   several          different  approaches toward  the  problem  of  determining  what          constitutes the "discovery" of  omission of copyright notice, and          at what point discovery occurs for purposes of the cure provision          in    405(a).  At  one extreme is  the rule announced  in O'Neill                                                                    _______          Devs,  Inc. v. Galen  Kilburn, Inc., 524 F.  Supp. 710, 714 (N.D.          ___________    ____________________          Ga. 1981),  which states  that "discovery" relates  to "the  fact                                         -10-          that the existence of a copyright has become an issue."  In other          words, discovery  occurs when a  copyright holder finds  out that          someone else is  copying his or her creative work.   The court in          O'Neill  did  not state  any authority  or  reason for  its rule;          _______          rather, it  focused on discrediting an  alternative rule endorsed          in Nimmer on Copyright,  Nimmer   7.13[B][3], at 7-124.2  through             ___________________   ______          7-130.    According  to  Nimmer, any  deliberate  or  intentional          omission (that  is, omissions  that are not  "inadvertent,"4) are          automatically discovered upon the date when a copy of the work is          first published or publicly distributed.  Id. at 7-125 through 7-                                                    __          126; see also Beacon  Looms, Inc. v. S. Lichtenberg &  Co., Inc.,               ________ ___________________    ___________________________          552 F. Supp. 1305, 1310-12 (S.D.N.Y. 1982), criticized  by Hasbro                                                      ______________ ______          Bradley, 780 F.2d at  195-96.  Nimmer reasons that if an omission          _______          is deliberate, "it must  be immediately known (or 'discovered')."          Nimmer   7.13[B][3], at 7-125. "Simply put, one cannot 'discover'          ______                                        ____________________          4  Inadvertent omissions include those occurring when  the author          intended  to  affix notice  to published  copies  but his  or her          attempts to do so  were frustrated because of some  mechanical or          publishing  mistake that  left  notice off  some  or all  of  the          copies.  Beacon Looms, Inc. v. S. Lichtenberg & Co., Inc., 552 F.                   __________________    __________________________          Supp. 1305, 1313  (S.D.N.Y. 1982); Note,  Omission of Notice,  60                                                    __________________          N.Y.  U.  L. Rev.  at 957-59.    Omissions occurring  because the          author  never thought  about,  or knew  of,  the availability  of          copyright  protection  or   the  requirement   to  affix   notice          ("thoughtless omitters") or because the author mistakenly thought          protection  was  unavailable  ("mistake  of  law omitters")  have          usually  been   considered  to  be  deliberate,   as  opposed  to                                              __________          inadvertent.  The omissions are labelled "deliberate" because the          authors in these situations  were aware of the absence  of notice          at  the  time  their work  was  first  published  and they  never          intended to affix notice  in the first place.  See Note, Omission                                                         ___       ________          of  Notice, 60  N.Y. U.  L. Rev.  at 959-60,  968-71; see,  e.g.,          __________                                            ___   ____          Sparkle Toys, 780 F.2d at  191, 195-96; O'Neill, 524 F. Supp.  at          ____________                            _______          712,  715;   Innovative  Concepts   in  Entertainment,   Inc.  v.                       ________________________________________________          Entertainment  Enters.  Ltd., 576  F.  Supp.  457, 460  (E.D.N.Y.          ____________________________          1983).                                         -11-          an  omission that  has been  deliberate."   Beacon Looms,  552 F.                                                      ____________          Supp. at 1310.                    The O'Neill court  argued that  the Nimmer  formulation                        _______          clearly conflicted  with the legislative intent  behind   405(a).          O'Neill,  524 F. Supp. at 714.  Nimmer's rule essentially removes          _______          any  chance for  those  who deliberately  and intentionally  omit          copyright  notice to  successfully  cure  under  the  "reasonable          effort"  requirement of    405(a)(2).5  See  Nimmer   7.13[B][3],                                                  ___  ______          at 7-125.  Yet, when Congress amended the Copyright Law  in 1976,          it  expressed  a  clear   intention  to  eliminate  the  previous          distinction,  made since 1909,  between purposeful  or deliberate          omissions,  which   were  subject  to   automatic  forfeiture  of          copyright  protection,  and unintentional  omissions,  which were          curable, so  that  all omissions  could  be cured  by  reasonable          efforts.  See Sparkle  Toys, 780 F.2d at 195-96;  O'Neill, 524 F.                    ___ _____________                       _______          Supp. at 714;  Note, Omission of  Notice, 60 N.Y.  U. L. Rev.  at                               ___________________          963-75.  According to the O'Neill court, the word "discover" must                                    _______          be  read in  light  of  the  Congressional  intent  to  make  all          omissions curable.  O'Neill, 524 F. Supp. at 714.                              _______                    In  response, Nimmer  argues that  Congressional intent          must give  way to the  plain meaning of  the statutory text  of                                          ____________________          5    This  is  because  Nimmer's  rule immediately  triggers  the          requirement  to  add  notice,  see    405(a)(2)  (requiring  cure                                         ___          efforts once  the omission is "discovered"),  which the copyright          author will  presumably fail  to do  within a  "reasonable" time.          Authors will presumably  fail to  cure within  a reasonable  time          because they have just distributed copies without notice to begin          with  and it is unlikely  they would suddenly  attach notice when          they could have done so in the first place.                                         -12-          405(a)(2), which,  in Nimmer's view, compels  the conclusion that          discovery  is  immediate  for  deliberate omissions.    Nimmer                                                                     ______          7.13[B][3], at 7-125.                    We think that the  proper interpretation of   405(a)(2)          must lie somewhere between  the rule described in Nimmer  and the                                                            ______          rule announced in O'Neill.  On the one hand,  Congress intended a                            _______          copyright holder  to be able to cure all omissions, if the holder                                               ___          made "reasonable efforts" to add notice.  See H.R. Rep. No. 1476,                                                    ___          94th Cong.,  2d Sess. 147,  reprinted in 1976  U.S.C.C.A.N. 5659,                                      ____________          5673;  see also Sparkle Toys,  780 F.2d at  195-96.  Furthermore,                 ________ ____________          the  language in   405(a)(2) concerning the addition of notice to          all copies  "after the omission  has been discovered,"  17 U.S.C.          405(a)(2), does  not expressly  preclude a  finding that a  given          deliberate omission  was discovered after the initial publication          of a  work.   Sparkle Toys,  780 F.2d at  196.   Thus, the  plain                        ____________          language of the  statute does not  conflict with its  legislative          intent.                    Although  Nimmer makes a  compelling argument  that one          already knows,  and thus cannot "discover," an  omission that was          made deliberately, this  argument is only compelling  if we limit          the  definition of  "deliberate  omission" to  mean a  purposeful          decision to  forgo copyright  protection that would  otherwise be          available  if notice were  affixed to a  creative work.   But see                                                                    _______          Sparkle  Toys,  780  F.2d at  196  (noting  that  an assignee  or          _____________          licensee of the author or a company employee at a higher level of          the  corporate  hierarchy  than  the  deliberate  omitter   could                                         -13-          subsequently discover  a deliberate  omission, in which  case the          nature of the deliberate  omission would be altogether irrelevant          to  the  plausibility of  a  subsequent  discovery, and  Nimmer's          argument  would  not  be   compelling  under  any  definition  of          "deliberate  omission").    Most  courts,  and  Nimmer   himself,          however, have  not so confined  their definition of  a deliberate          omission.  See cases  cited supra note [4];  Nimmer   7.13[B][3],                     ___              _____            ______          at  7-125 n.78.    For example,  "mistake  of law"  omitters  and          "thoughtless" omitters are usually considered deliberate omitters          because  they are aware of the absence  of any notice at the time          their  work  was first  published and  they  had no  intention of          affixing  notice at  that time.   See  supra note  [4].   Under a                                            ___  _____          common  sense  reading  of     405(a)(2),  these  omitters  could          subsequently "discover"  their omissions of copyright notice when          they  are  later  apprised of  the  legal  significance  of their          failure  to provide  notice.   See M.  Kramer Mfg.  Co., Inc.  v.                                         ___ __________________________          Andrews, 783 F.2d 421, 443 & n.21 (4th Cir.  1986); Sparkle Toys,          _______                                             ____________          780 F.2d  at 191;  Shapiro, 764  F.2d at 73  n.5; Valve  & Primer                             _______                        _______________          Corp. v.  Val-Matic Valve  & Mfg.  Corp., 730  F. Supp.  141, 143          _____     ______________________________          (N.D. Ill. 1990); Innovative  Concepts, 576 F. Supp. at  460; see                            ____________________                        ___          also Note, Omission of Notice, 60 N.Y. U. L. Rev. at 981 (stating          ____       __________________          that "an individual with no knowledge whatsoever of the copyright          law could .  . . "discover" its relevance  and so "discover" that          the blank spot was  indeed an omission").  We  therefore conclude          that  deliberate omissions  are  potentially curable  and can  be          discovered after the first copy of a work is published.                                         -14-                    On  the  other hand,  the  O'Neill  rule, stating  that                                               _______          discovery  only  occurs  when   a  controversy  arises  over  the          existence and enforceability of a copyright, simply has  no basis          in the language of   405(a)(2) and we  must reject it.  As Nimmer          correctly  points  out,  the  language  of     405(a)(2)  plainly          indicates  that  "[i]t  is the  discovery  of  'the  omission' of                                                          _____________          notice, not the discovery of  the fact that the copyright  may be          challenged, which triggers the 'reasonable  effort' requirement."          Nimmer   7.13[B][3], at 7-127.  There are plenty of circumstances          ______          in which "discovery" occurs prior to a copyright dispute, such as          when  counsel  advises the  author that  he  or she  must provide          copyright  notice  to obtain  copyright  protection  or that  the          current notice is inadequate  to satisfy the notice requirements.          See, e.g., M. Kramer, 783  F.2d at 443 & n.21; Sparkle  Toys, 780          ___  ____  _________                           _____________          F.2d at 191; Shapiro & Son, 764 F.2d at 73 n.5; Val-Matic, 730 F.                       _____________                      _________          Supp.  at  143; Videotronics,  Inc. v.  Bend Electronics,  586 F.                          ___________________     ________________          Supp. 478, 480, 483  (D. Nev. 1984); Innovative Concepts,  576 F.                                               ___________________          Supp. at  460.  Indeed, the  fact that many of  these cited cases          also found  that discovery  occurred after a  deliberate omission                                               _____          was originally  made at the  time of first  publication indicates          that  the  middle-ground  test   for  determining  the  point  of          discovery is the preferred one in practice.                    In the present case,  the district court concluded that          Garnier "should have known of the omission" when the Swirled Hoop          Earring was first  published in  April of 1988,  and thus  placed          Garnier's  discovery of omission at the date of first publication                                         -15-          or soon thereafter.  The court based its decision primarily on  a          finding  that, at the time  the Swirled Hoop  Earring was offered          for sale to the public in April of 1988, Garnier "had a policy of          screening its newly  created pieces to  determine which would  or          would  not be  copyrighted, deferring  action to  first determine          marketability."  The court added that despite periodic reviews of          various copyrights held by  the company, Garnier waited  four and          one-half years  before registering  its copyright in  the Swirled          Hoop Earring and attaching notice,  essentially waiting to see if          the Swirled Hoop Earring would become a best-selling item  before          taking any action.                    It  must first be noted that the district court did not          hold that  Garnier's omission  was deliberate  and thus, via  the          Nimmer  rule, automatically  discovered  upon the  date of  first          publication.   Rather, the court found that the facts of the case          indicated that Garnier, "an international corporation, ultimately          sophisticated in  the need  for copyrighting," should  have known          the legal  consequences of its  omission of copyright  notice and          thus  purposefully  and intentionally  refused  to  seek out  the          protections of the copyright laws.  Disregarding for a moment the          district court's factual findings, we hold that the court did not          err legally in this determination.                    When  an author  makes a  deliberate decision  to forgo          potential copyright  protection of  a work  by  failing to  affix          notice on copies,  with the  knowledge that  copyright notice  is          normally  required, that author becomes aware of the legal effect                                         -16-          of  its omission of notice  and thus has  discovered the omission          for  purposes of   405(a)(2).  Discovery  can occur upon the date          of  first publication if  the author has this  state of mind when          the  first  copies  are  distributed.    Finding  that  conscious          decisions to forgo the expense of complying with the requirements          for  a  copyright can  result in  an  immediate discovery  of the          omission of notice  under    405(a)(2) does no  injustice to  the          legislative intent to provide  notice of all omissions.   No cure          can be considered  "reasonable" in cases where  the author simply          sits back and  waits to see  whether his  or her work  will be  a          best-seller,  before suddenly springing  into action and deciding          to  claim   copyright  protection  after   a  competitor  invests          significant time and resources in developing a competing product.                    The  district court's  use of  the phrase  "should have          known,"  implying  an objective  standard  of  discovery or  some          concept  of  constructive  notice,   though  misleading,  is  not          erroneous on  the facts of this case.  Other courts have used the          phrase "should  have known"  to indicate that  the circumstantial          evidence  points so  strongly  toward the  author's knowledge  of          copyright omission that,  if in fact  the author did not  know of          the  omission, it  would  be fair  to  say that  a  party in  the          author's  position clearly  "should have  known" that  notice was          both  required and  missing from  copies of  his or  her creative          work.  Donald Frederick  Evans & Assocs., 785  F.2d at 911;  Val-                 _________________________________                     ____          Matic, 730 F. Supp. at 143.  We think that a circumscribed use of          _____          this  constructive notice concept is acceptable as long as courts                                         -17-          are careful not to extend it further than the facts warrant.  For          example,  it would  not  be acceptable  to  find that  an  author          discovers   an  omission  of  notice  upon   the  date  of  first          publication   merely  because   the   author  is   a  large   and          sophisticated company with several lawyers  on staff.  The  facts          found  by the district court,  namely that Garnier  had a regular          process  for  screening  new   pieces  for  potential   copyright          protection  and a separate process for review of past copyrights,          are strong enough to  support a finding that Garnier  should have          known it omitted a required copyright notice.                    The   court's  factual   findings,  however,   are  not          supported  by  the  record,  at  least  for  purposes of  summary          judgment.  Because the district court granted summary judgment in          favor of Andin, we must review its decision de novo, to determine                                                      __ ____          whether the record, viewed in the light most favorable to Garnier          and  with all  reasonable  inferences drawn  in Garnier's  favor,          presents any genuine issues of material fact and whether Andin is          entitled to  judgment as a matter  of law.   Serrano-P rez v. FMC                                                       _____________    ___          Corp., 985  F.2d 625, 626 (1st  Cir. 1993); Pagano v.  Frank, 983          _____                                       ______     _____          F.2d 343,  347 (1st  Cir.  1993).   Summary judgment  may not  be          granted  if the  evidence is  such that  a reasonable  jury could          return  a verdict for Garnier.   Serrano-P rez, 985  F.2d at 626;                                           _____________          Pagano, 983 F.2d at 347.          ______                    Our review  of the  record in  this  case reveals  that          critical factual issues are disputed or unproven.  In particular,          it is disputed whether, at the time that the Swirled Hoop Earring                                         -18-          was first published  in April of 1988, Garnier  had a process for          screening  jewelry  pieces  for  potential  copyright protection,          whether Garnier had a review process for existing copyrights, and          whether Garnier even  held any United  States copyrights or  knew          anything  about  copyright  requirements  in  the  United States.          Garnier's export manager, Christian  Victor, stated in a detailed          affidavit that when  the Swirled Hoop  Earring was introduced  in          April of 1988, Garnier had no experience or expertise with United          States copyright  laws, had never  applied for registration  of a          copyright in the  United States, and  had no internal  procedures          for determining copyrightability, copyright  notice requirements,          or  other aspects  of  copyright protection  for new  or existing          jewelry works under United States law.                    According  to  the  record,  the  first  United  States          copyright  obtained by Garnier was in October of 1988, six months          after the Swirled  Hoop Earring  was first  published.   Although          Garnier held copyrights in approximately 25 to 30 product designs          out of the 500 products in its line, there is no evidence Garnier          held any United States copyrights prior  to October of 1988.  The          only  evidence regarding copyright screening procedures or review          processes  is  some  rather equivocal  deposition  testimony from          Garnier's  Vice President  of United  States Operations,  Vincent          Ferrante.  It is not clear from Ferrante's testimony how thorough          and comprehensive the alleged "screening"  and "review" processes          really  were, such  that  they  would  be  likely  to  include  a          consideration of  copyright protection  for a jewelry  piece like                                         -19-          the Swirled  Hoop Earring.    Ferrante did  testify that  Garnier          makes a  special effort to  protect copyrights in  its "signature          pieces" and that the Swirled Hoop Earring was considered one such          piece.   Ferrante never  explained, however, what  those "special          efforts"  were, whether those efforts were in effect in 1988, or,          if they were, whether  they actually applied to the  Swirled Hoop          Earring.   Victor stated in  his affidavit that  the Swirled Hoop          Earring never went through any review or screening process.                    More  importantly, Ferrante  stated  that  he was  "not          sure"  when Garnier  started its  copyright screening  and review          processes.  Ferrante began working at Garnier in the fall of 1990          and  he testified that when  he arrived, Garnier  had a "standard          policy" to obtain copyrights on their designs.  The only evidence                                                              ____          that some type  of copyright  screening or review  policy was  in          place  at  Garnier  when  the  Swirled  Hoop  Earring  was  first          published  is  Ferrante's answer  to  the  following question  by          Andin's  counsel: "Does the [standard] policy go back to at least          1985?" to which Ferrante responded: "I believe it did."                    We  conclude  that  this  evidence  is  insufficient to          support the  court's finding,  on summary judgment,  that Garnier          discovered  its  omission  of  copyright  at  the  time it  first          published the Swirled Hoop Earring.                    There also exists a genuine issue of fact as to whether          Garnier  discovered  its  omission  of copyright  at  some  point          between  April of 1988, when  the Swirled Hoop  Earring was first          published,  and July of 1992, when Garnier registered the Swirled                                         -20-          Hoop  Earring design.  Although some sort of copyright review and          screening process was in  place at Garnier during this  time, the          exact  nature and  extent  of  the  process  is  not  clear  from          Ferrante's  testimony.  Ferrante never  testified that any of the          company's   screening   or   review   procedures   were   applied          retroactively to  jewelry pieces  developed prior to  the initial          institution of  those procedures.  Furthermore,  Victor stated in          his affidavit  that the  first review process  for United  States          copyrights  was  begun  sometime in  1990  and  that  it did  not          function retroactively  to include  pieces like the  Swirled Hoop          Earring.  Victor also stated that up  until November of 1990, the          company only sought copyright  protection for animal designs, and          not  for  designs  like  the  Swirled  Hoop  Earring.    While  a          reasonable factfinder could infer that Garnier's copyright review          process  led to a "discovery," sometime prior to July of 1992, of          the  fact that  all non-noticed  pieces in  its line  of jewelry,          including the Swirled Hoop Earring, were subject to forfeiture of          United States copyright protection  unless notice was attached to          all  copies of those works,6  such an inference  is not compelled          by  the evidence.  On the contrary, the summary judgment standard          requires that  we indulge all  reasonable inferences in  favor of          Garnier,  Serrano-P rez, 985 F.2d at 626, and it is reasonable to                    _____________          infer  that Garnier did not  consider the absence  of notice, and                                        ____________________          6    In other words,  Garnier would have, or  should have, become          aware  of   the  consequences   of  omission,   transforming  its          thoughtless  omission   into  a  purposeful   decision  to  forgo          copyright notice, and thus discovering its omission.                                         -21-          the  legal significance of such absence, until it found out Andin          had copied the design in July of 1992.                    In sum, because a genuine factual dispute exists  as to          whether Garnier's discovery  occurred prior to July of 1992, when          Garnier  claims discovery  occurred,  summary judgment  cannot be          granted on  the basis that Garnier discovered the omission before          July of 1992.  Despite this finding, however, we may still uphold          the district  court's judgment if  we find  that, as a  matter of          law, Garnier was  still required to  cure the lack  of notice  on          certain  copies  of the  Swirled  Hoop  Earring and  subsequently          failed to make  reasonable efforts to  effect such  a cure.   See                                                                        ___          Medina-Mu oz v. R.J.  Reynolds Tobacco  Co., 896 F.2d  5, 7  (1st          ____________    ___________________________          Cir. 1990) (stating that in reviewing summary judgment orders, as          in  other contexts, we  are free to affirm  the district court on          any  independently sufficient  ground supported  by the  record).          Accordingly, we proceed on the assumption that Garnier discovered          its  omission  in  July  of  1992  and  address  whether  Garnier          nevertheless  forfeited its  copyright  because of  a failure  to          satisfy the cure requirements provided in   405(a)(2).                    2.  To Which Copies, If Any, Must Notice Be Attached To                    2.  To Which Copies, If Any, Must Notice Be Attached To                        ___________________________________________________                        Effect A Cure?                        Effect A Cure?                        _____________                    As stated earlier, the reasonable effort requirement in          the cure provision applies to all copies that are "distributed to          the  public  in the  United States  after  the omission  has been                                              _____          discovered."   17  U.S.C.    401(a)(2).   Thus, Garnier  need not          affix notice  to  copies  of  its Swirled  Hoop  Earring  already          distributed to the  public before July of 1992, the date at which                                         -22-          we  assume Garnier discovered its omission of notice.  See Forry,                                                                 ___ ______          Inc.  v. Neundorfer,  Inc., 837  F.2d 259,  265 (6th  Cir. 1988);          ____     _________________          Nimmer   7.13[B], at 7-122.          ______                    Garnier  began affixing  notice  to all  copies of  the          Swirled  Hoop Earring  it distributed  after the  discovery date,          July of 1992,  and, furthermore,  disposed of all  copies of  the          Swirled Hoop Earring  without notice in  its inventories at  that          time.                    The only remaining copies  that are potentially subject          to  the  cure   requirements,  therefore,   are  those   earrings          manufactured before July of 1992 and sent to Garnier's customers,          but not yet sold to the public,  by July of 1992.  At issue  then          are  only those copies of the Swirled Hoop Earring without notice          that  remained  in the  retail  inventories  of Garnier's  retail          customers as of July, 1992.                    Normally,  a copyright  owner has  an obligation  under            405(a)(2)  to add  copyright  notice to  copies distributed  to          retail  dealers but  not yet  sold to  the  public.   Lifshitz v.                                                                ________          Walter Drake &  Sons, Inc., 806 F.2d 1426, 1434  (9th Cir. 1986);          __________________________          M.  Kramer,  783 F.2d  at 444;  Shapiro &  Son,  764 F.2d  at 74.          __________                      ______________          Garnier argues, however,  that it  need not take  any efforts  to          cure the absence of  notice on these copies because they  had not          been distributed to the  public before the effective date  of the          Bern Convention amendments to the copyright statute (that is, the          BCIA).    As  stated  earlier,  the BCIA  eliminated  the  notice          requirement for  copyright protection  as of March  1, 1989,  but                                         -23-          retained the cure  provision in    405(a) for copies  distributed          before that date.  Garnier  argues that the proper interpretation          of the BCIA  and the new   405(a) is  that the notice requirement          is eliminated  for all  copies distributed  after March 1,  1989,          even  if other copies of  the same work  were distributed without          notice before March  of 1989.7   Andin argues,  and the  district          court  held, that once copies  in a work  are distributed without          notice before March 1, 1989, the obligation to cure retained in            405(a)  attaches  to all  copies  in  the work,  including  those          published after the BCIA took effect.                    The language of   405(a)  is critical to resolving this          issue, and,  not surprisingly, the  language is  ambiguous.   The          statute states in relevant part:                      With respect to  copies and  phonorecords                      publicly  distributed  [before  March  1,                      1989], the omission  of copyright  notice                      . .  . does not  invalidate the copyright                      in a work  if . . . (2) .  . . 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.          Garnier correctly points out that the statute could reasonably be          interpreted  as  stating:  "With  respect to  only  those  copies          published before 1989, a reasonable effort to add notice is still                                        ____________________          7  Garnier recognizes  that if it  was deemed to have  discovered          the  omission of notice in April of  1988 and then failed to cure          in a  reasonable time  thereafter, it  would  have forfeited  its          copyright in the Swirled  Hoop Earring and the design  would pass          into  the public domain, regardless of the provisions in the BCIA          amendments.  Thus, Garnier is not asserting that the BCIA  can be          read to  resurrect a right that  did not exist prior  to the date          that it went into effect.                                         -24-          required, but with respect to copies published after March  1989,          notice is not required."  Garnier reasons that if Congress wanted          to  adopt  Andin's  interpretation,  it would  have  written  the          statute  to read: "With respect  to works" first published before                                              _____          March 1989, instead of "With  respect to copies" first  published                                                   ______          before March 1989.8                    Andin's interpretation, however,  is a more  convincing          construction of    405(a).   Plainly read,  the statute  provides          that  the  omission of  copyright  notice  on copies  distributed          before March 1, 1989, does not result in forfeiture of  copyright          "in a work" if the  proper cure is made pursuant to    405(a)(1),          (3),  or, in  this case,     405(a)(2).   Under    405(a)(2), the          author  must make  a  reasonable effort  "to  add notice  to  all                                                                        ___          copies" that "are distributed to  the public" after the  omission                        ___          has  been discovered.   This  language indicates that  all copies          that "are" presently distributed,  of a work for  which unnoticed                                        ____________________          8  There  is no merit to Garnier's  claim that Congress initially          considered making the  amended version of    405(a) applicable to          "works first published" before March 1, 1989,  but later rejected           _____          such language  in favor of "copies first  published" before March                                      ______          1, 1989.  To the contrary,  the House Report cited by Garnier for          its argument indicates that  Congress always intended the current          language  in    405(a)  to apply  the  cure requirements  to  all          copies,  including those distributed after March  1989, of a work          first published before  March 1989.  See H.R.  100-609, reprinted                                               ___                _________          at 6 Nimmer  on Copyright App.  32, at 32-1  through 32-45.   The          __   ____________________          bill accompanying  the House Report  amended   405(a)  in exactly          the  same fashion that    405(a) was  eventually amended.   See 6                                                                      ___          Nimmer  App. 32, at 32-5 (presenting text of bill which contained          ______          the exact  amendment eventually  adopted for     405(a), at  Sec.          9(e)(2)  of  the  bill).   The  report  itself  then states  that          "[c]urrent notice  requirements  are unchanged  for  works  first                                                          _________________          published before the  effective date of  the Act."  Id.  at 32-45          _________                                           __          (emphasis  added).    The  report thus  interpreted  the  present          language in the same way that the district court interpreted it.                                          -25-          copies were published at a time when notice was required, must be          cured, regardless of when those copies are distributed.  Congress          said "all" copies,  and did  not limit the  cure requirements  to          works that "were distributed  prior to the effective date  of the          BCIA."   See Encore Shoe Corp.,  18 U.S.P.Q. 2d 1874,  at n.9 (D.                   ___ _________________          Mass. 1991)  ("[I]f  the  pre-BCIA  publications  bear  defective          notice, then  'a reasonable effort' must be made to add notice to          all copies after  the defective notice has been  discovered, even          if  discovery occurs  after  March 1,  1989.");  accord Nimmer                                                              ______ ______          7.13[B][2], at 7-120 n.54.                    Garnier argues  that "all copies" merely  refers to all          copies  within the subset of copies distributed prior to March 1,          1989.   Garnier  grounds this  assertion in  the language  of the          introductory sentence of   405(a), which states: "With respect to          copies   and  phonorecords   publicly  distributed   [before  the          effective date of the BCIA] . . . ."  According  to Garnier, this          introductory phrase defines the  set of copies to which  the rest          of    405(a),  including the  cure requirements  in    405(a)(2),          applies.    Though  plausible,  this  construction  strains   the          language of  the statute.    Further, in  view of  the fact  that          Congress, in enacting the BCIA, had  made changes to   405(a)  so          as to limit its  applicability only to those instances  where the          omission of notice had first occurred prior to March 1, 1989, the          failure to limit the remedial cure provision to just those copies          cannot be  said  to have  been  an  oversight.   See  St.  Martin                                                           ___  ___________          Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 786-88          ___________________________    ____________                                         -26-          (1981)  (Congress in  amending one  section of  a statute  is not          presumed  to have intended an amendment to another section of the          statute which had not been altered).                    Contrary  to  Garnier's   assertion,  the   legislative          history for    405(a) is  indeterminate as to  the present  issue          because it  essentially parrots the language employed in the text          of the statute itself.  See S. Rep. No. 100-352  at 45, reprinted                                  ___                             _________          in 1988 U.S.C.C.A.N. 3706, 3742.   The House Report attached to a          __          preliminary  version  of  the   BCIA  bill  actually  contradicts          Garnier's  interpretation of  the statute.   See supra  note [8].                                                       ___ _____          While  Congress speaks  of  limiting the  "applicability" of  the          notice provisions in the  copyright statute to copies distributed          before March 1, 1989, see S. Rep. No. 100-352 at 45, reprinted in                                ___                            ____________          1988  U.S.C.C.A.N. 3706,  3742,  nowhere does  Congress state  an          intention to  alter the then-existing pre-BCIA  cure requirements          set out in    405(a)(2), which mandate that an  author add notice          to "all copies" of a work.                    Garnier further  argues that Andin's  interpretation of          the BCIA-amended    405(a) conflicts with the  overall purpose of          the BCIA  which was to bring United  States copyright law in line          with  the Berne  Convention by  eliminating the  requirement that          notice of copyright be affixed to copies of a work.  We disagree.          First of all, the BCIA applies prospectively, as evidenced by the          retention  of   405(a).  Thus, applying forfeiture rules for lack          of  notice to  works first  published before  the BCIA  went into          effect  does  not conflict  with the  general  goals of  the Act.                                         -27-          Furthermore,  Congress adopted  a  "minimalist  approach" in  the          BCIA, amending the Copyright Act "only insofar as it is necessary          to  resolve  the  conflict  [between  U.S.  law  and   the  Berne          Convention]  in a  manner  compatible with  the public  interest,          respecting the pre-existing balance  of rights and limitations in          the Copyright  Act as a  whole."   H.R. 100-609,  reprinted at  6                                                            ____________          Nimmer on  Copyright, App. 32, at 32-20.  Congress did not intend          ____________________          to  adopt the  Berne  Convention wholesale;  the amended  statute          itself makes it clear  that the United States Copyright  Act, and          not  the Berne  Convention, controls  disputes arising  under the          copyright laws.  17 U.S.C.    104(c) ("No right or interest  in a          work eligible for protection  under this title may be  claimed by          virtue  of,  or in  reliance upon,  the  provisions of  the Berne          Convention, or the adherence of the United  States thereto"); see                                                                        ___          also  S.Rep. 100-352,  at p.  41, reprinted in  1988 U.S.C.C.A.N.          ____                              ____________          3706,  at  3738  (cautioning courts  "to  resolve  issues of  the          existence,  scope, or application  of rights in  works subject to          copyright   through    the   normal   processes    of   statutory          interpretation and  the application of common  law precedents, as          appropriate, rather than by reference  to the provisions of Berne          or the fact of U.S. adherence to the Convention.").                    For  the foregoing  reasons,  therefore,  we hold  that            405(a)  imposes a cure requirement  for all copies  of any work          which  was first  published prior  to the  effective date  of the          BCIA.  In this case,  the cure requirement applies to all  copies          of Garnier's Swirled Hoop Earring remaining in retail inventories                                         -28-          as of July of 1992.                     B.  Was Garnier's Cure Adequate?                    B.  Was Garnier's Cure Adequate?                        ___________________________                    Having  determined that  Garnier  must make  reasonable          efforts to add  notice to copies  in Garnier's customers'  retail          inventories as of July 1992, we must  determine whether Garnier's          actual  cure efforts  were reasonable,  as a  matter of  law, for          purposes of Andin's summary judgment motion.   The district court          based its finding that Garnier's cure efforts were not reasonable          at  least in part on  the assumption that  Garnier discovered its          omission in April  of 1988 and then waited over four years before          adding  notice to its Swirled  Hoop Earrings.   Although we found          this  assumption erroneous  for  summary judgment  purposes,  the          court's decision  can nevertheless  be upheld on  the alternative          finding that Garnier's cure efforts were insufficient as a matter          of law even under  the assumption that Garnier was  only required          to add  notice to copies  of the  Swirled Hoop Earring  in retail          inventories as  of July 1992,  and thus  did not  delay its  cure          efforts.   Medina-Mu oz, 896 F.2d at 7; Chamberlin v. 101 Realty,                     ____________                 __________    ___________          Inc., 915  F.2d 777,  783 n.8  (1st Cir.  1990) (in  reviewing of          ____          summary judgment orders, we are free to affirm the district court          on any independently sufficient ground supported by the record.)                    As an  initial matter,  Garnier argues that  there were          few,  if  any,  copies of  the  Swirled  Hoop  Earring in  retail          inventories  as of July 1992, and, therefore, it was not required          to  take any effort  to add notice to  retail inventory copies to          satisfy  the  "reasonable  effort"  requirement  in    405(a)(2).                                         -29-          Garnier  points to  testimony in  the record  to the  effect that          inventories were  normally depleted in the  summer months because          it was  the low point in  the business cycle when  new orders are          normally made for fall  delivery.  There is no  dispute, however,          that  at least one Swirled  Hoop Earring without  notice, the one          bought by Andin,  was in  one retailer's inventories  as late  as          September of 1992.   More importantly,  Garnier does not  dispute          that it did not know  whether any of its retailers had  copies of          the Swirled Hoop Earring remaining in stock in July of 1992, and,          in fact, Garnier  sent a  letter to its  fifty largest  retailers          regarding  the Swirled Hoop Earring on the assumption that if any          retailers had remaining inventory, it would be the larger ones.                    Because   the  reasonable   effort  requirement   in             405(a)(2) applies to "all" copies distributed to the public after          discovery  of   omission,  17   U.S.C.      405(a)(2),  Garnier's          obligation  to  cure  is triggered  once  Garnier  has reason  to          believe any  of  its  retail  customers  have  any  Swirled  Hoop          Earrings  in their  inventories, even if  only a few  items.  See                                                                        ___          generally Lifshitz, 806  F.2d at 1434  (holding that a  copyright          _________ ________          owner  has  an  obligation  to add  copyright  notice  to  copies          distributed to  retail  dealers);  M.  Kramer, 783  F.2d  at  444                                             __________          (same); Shapiro & Son, 764 F.2d at 74 (same).  At the very least,                  _____________          Garnier  is obligated  to take  some  effort to  find out  if its          retailers  have any earrings in stock.  Garnier, however, did not          do  this.  We  find, therefore, that because  there is no dispute          that  (1)  at least  one unnoticed  Swirled  Hoop Earring  was in                                         -30-          retail  inventories;  (2)  Garnier  suspected  that  its  largest          customers  had  at least  a few  Swirled  Hoop Earrings  in their          inventories; and (3) Garnier made no effort to  find out for sure          whether any of  its customers  still held copies  of its  Swirled          Hoop  Earring, no  genuine issue  of material  fact exists  as to          whether Garnier was obligated to take "reasonable efforts" to add          notice to  copies in  retail inventories.   Consequently, summary          judgment in favor of Andin is not precluded on the basis that the          lack  of evidence  of  significant amounts  of inventory  excuses          Garnier  from  taking  efforts  to cure  potential  Swirled  Hoop          Earrings in retail inventories.                    As we  discuss below,  other factors may  alleviate the          need  to add notice to  retail inventories if,  for example, such          factors make the effort required to add  notice unduly burdensome          or futile.  See, e.g., Shapiro & Son, 764 F.2d at 74-75.  In such                      ___  ____  _____________          circumstances,  summary judgment  may  not  be appropriate,  even          though  the author made no  effort to add  notice to inventories,          because  it was  reasonable not  to cure  those copies  under the          circumstances.   The mere  justification that the  author thought          its retail  inventories would  be low  during the  summer months,          however,  does not constitute such  a factor and  does not excuse          the requirement to effect a cure.  Garnier was therefore required          to add notice to copies of the Swirled Hoop Earring in the retail          inventories of its customers.                    We are finally prepared to address the issue of whether          Garnier's cure efforts were insufficient and thus unreasonable as                                         -31-          a matter of law.  Efforts to cure under    405(a)(2) must consist          of steps designed to "add notice to all copies" distributed after                                __________          omission  of  notice  is  discovered.    17  U.S.C.    405(a)(2).          Pursuant  to  17  U.S.C.     401(c),  copyright  notice  must  be          "affixed"  to each copy for which protection is desired.  Failure          to  "affix"  a notice  to the  copy  renders that  notice legally          deficient and defective.   Shapiro &  Son, 764 F.2d  at 72.   The                                     ______________          legal  consequences of a deficient  notice are the  same as those          for an  omitted notice.   Id. at 72  n.3; see also  Lifshitz, 806                                    ___             ________  ________          F.2d at 1432, 1434 (a defective notice constitutes no notice as a          matter of law).   Accordingly,  to cure an  omission, the  author          must  add legally  proper notice  to  all copies.   To  satisfy            405(a)(2), therefore, the  author must take  "reasonable efforts"          to add legally proper notice.                    Garnier submits that it undertook two different efforts          to add copyright notice to copies  of its Swirled Hoop Earring in          retail inventories: (1)  it sent  a letter to  its fifty  largest          retail  customers stating that it held a copyright in the Swirled          Hoop Earring;  and (2)  it provided  a story  card to  its retail          customers  to  accompany the  sale  of  all its  jewelry  pieces.          Neither   measure  constitutes   a  legally   cognizable  effort,          reasonable or  otherwise,  to  add notice  to  its  Swirled  Hoop          Earrings.   The letter  was altogether inadequate  because it did          not  "add  notice"  in any  way  to  copies of  the  Swirled Hoop          Earring.   Not  only was  the letter  not affixed  to any  of the          Swirled Hoop Earrings, but  it also failed to say  anything about                                         -32-          Garnier's  failure to  attach  copyright notice  to the  earring.          Furthermore, the letter did  not inform retailers of the  need to          attach some type of notice to the Swirled Hoop Earring or even to          tell consumers about Garnier's copyright.  See, e.g., Long v. CMD                                                     ___  ____  ____    ___          Foods, Inc., 659 F. Supp.  166, 169 (E.D. Ark. 1987).   Thus, the          ___________          letter  does not qualify as  a legally cognizable  effort to "add          notice," let alone a reasonable one.                    Garnier's story cards, which  stated that every Garnier          design  is  a  "genuine  copyrighted  original,"  were  also  not          "affixed"  to the  Swirled Hoop Earring  and thus  constituted an          inadequate  effort to  add notice.   Lifshitz,  806 F.2d  at 1434                                               ________          (finding that author's cure effort, consisting of the addition of          a defective notice,  was not sufficient to represent a reasonable          effort to add notice).   Moreover, the story cards were not  part          of  Garnier's reasonable efforts to  add notice to  copies of its          Swirled Hoop  Earring "after the omission  ha[d] been discovered"          pursuant  to   405(a)(2).   Rather, the cards  were instituted by          Garnier two years  earlier, beginning in 1990,  and were provided          for all  of Garnier's jewelry  pieces.   As such, the  cards were          merely a form of  inadequate notice existing at the  time Garnier          discovered the omission of notice on its Swirled Hoop Earring and          not  part  of any  effort to  add notice  after the  omission was          discovered.   Therefore,  the story  cards constituted  something          that needed tobe cured, not a part ofthe cure efforts themselves.                    We do  not dispute  that some inadequate  cure efforts,          such as  the provision  of notice  which  is not  affixed to  the                                         -33-          copies,  can still be relevant to, though not alone sufficient to          establish, the reasonableness of an author's overall cure efforts          if such efforts contribute in some way to providing actual notice          to the public of a  claim of copyright.  Shapiro &  Son, 764 F.2d                                                   ______________          at  74-75.  In this respect, measures like Garnier's story cards,          but   not   Garnier's  letter,   could   potentially  enter   the          reasonableness  calculus   under      405(a)(2)  to  create,   in          combination  with some other efforts, a material issue of fact on          the question of whether  reasonable cure efforts were taken.   In          this case, however, the story cards were distributed prior to the          discovery of the omission of notice and  thus do not constitute a          "reasonable effort"  to "add notice"  to copies  pursuant to  the          cure  requirements in    405(a)(2).   Therefore,  Garnier's story          cards are not cognizable as an effort to cure omission of notice.          To the extent Shapiro & Son adopts a contrary rule on this issue,                        _____________          id.  at  74-75,  we respectfully  part  company  with the  Second          __          Circuit.  In  summary, then,  we find that  Garnier undertook  no          legally cognizable  efforts under    405(a)(2)  to add  notice to          retail inventories of its Swirled Hoop Earring.                      Garnier maintains  that even if the  steps taken with          respect to  retail inventories are inadequate,  by themselves, to          constitute a reasonable effort to add notice, when such steps are          combined  with Garnier's  efforts  to add  complete and  adequate          notice to  all new Swirled Hoop Earrings produced after discovery          of  omission in July  of 1992, and  to all  Swirled Hoop Earrings          held by  Garnier at that  time, the totality  of the efforts  are                                         -34-          together  sufficient to  create a  material issue  of fact  as to          whether Garnier took reasonable  efforts to cure.  See  Shapiro &                                                             ___  _________          Son,  746 F.2d  at  75.   We  do not  agree.   Section  405(a)(2)          ___          requires  reasonable efforts to add  notice to "all"  copies.  17          U.S.C.    405(a)(2).  Where an author makes no legally cognizable          effort to add  notice to  an identifiable group  of copies  which          lack notice, and there are no significant obstacles hindering the          author from adding notice  to such copies, that author  cannot be          said to have taken reasonable efforts to cure as a matter of law.          In  the event that adding notice to retail inventories would have          been  burdensome, unduly costly,  unavailing, futile or otherwise          unreasonable, a prospective cure -- that is adding notice only to          new  copies thereafter produced and  distributed -- by itself can          be sufficient  to  constitute reasonable  efforts to  cure.   See                                                                        ___          Shapiro &  Son,  746  F.2d at  74-75  (noting that  there  was  a          ______________          material issue of fact as to  whether the author's efforts to add          notice  to items in retail inventories would have been burdensome          or unavailing).  That, however, is not the case here.  Unlike the          author in Shapiro  & Son, Garnier does not assert  that an effort                    ______________          to add notice to  retail inventories of the Swirled  Hoop Earring          would be unavailing, overly costly or burdensome.   Garnier could          have easily provided  retailers with gummed  labels or hang  tags          for the Swirled Hoop  Earrings without much  cost or effort.   In          this situation, adding notice  to only newly produced copies  and          copies in Garnier's own  possession is insufficient, as  a matter          of law, to constitute reasonable efforts under   405(a)(2).  See,                                                                       ___                                         -35-          e.g.,  Val-Matic, 730  F.  Supp.  at  144 (finding  cure  efforts          ____   _________          insufficient where author made no  effort to correct copies still          in the  hands  of  distributors  where such  efforts  would  have          imposed "little, if  any, burden," despite provision of notice on          new  copies); see also Videotronics,  Inc., 586 F.  Supp. at 480,                        ________ ___________________          483.  We accordingly affirm the district court's grant of summary          judgment on the  ground that  Garnier failed  to take  reasonable          efforts  to cure the omission of copyright notice for its Swirled          Hoop Earring.                    Affirmed, with costs to be paid by appellant.                    ________                                         -36-
