                  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 &amp;  Medeiros, Inc.,
                                                                
was on brief for appellant.
     Julius  Rabinowitz,  with  whom Josephine  Bachmann,  Kuhn &amp;
                                                                 
Muller, Esqs., William Richard  Grimm, Christopher M. Neronha and
                                                             
Hinckley, Allen &amp; 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

          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)
&amp; (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

          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.  --
            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  &amp; 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 &amp; 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  &amp; Primer
                                                                 

Copr.  v. Val-Matic Valve &amp; Mfg.  Corp., 730 F. Supp. 141, 143-44
                                       

(N.D. Ill. 1990).

          1.     When  was  the  Omission   of  Copyright  Notice
                                                                 

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 &amp;  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 &amp; 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 &amp; n.21 (4th Cir.  1986); Sparkle Toys,
                                                                

780 F.2d  at 191;  Shapiro, 764  F.2d at 73  n.5; Valve  &amp; Primer
                                                                 

Corp. v.  Val-Matic Valve  &amp; 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 &amp; n.21; Sparkle  Toys, 780
                                                            

F.2d at 191; Shapiro &amp; 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 &amp; 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
                                                                 
              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 &amp;  Sons, Inc., 806 F.2d 1426, 1434  (9th Cir. 1986);
                          

M.  Kramer,  783 F.2d  at 444;  Shapiro &amp;  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?
                                         

          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 &amp; 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

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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 &amp; 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 &amp;  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 &amp;  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 &amp; 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 &amp;
                                                                 

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 &amp;  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  &amp; 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.
                  

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