it would seem that the lack of a notice of copyright affords a creative work more protection under the law (especially now under current copyright law in the US) than if the notice was present.
The lack of a notice doesn't offer more protection -- it just makes it more difficult for someone wishing to lawfully use something that they themselves didn't create. I don't know if that's a good or bad thing, but it's not really the same as saying the copyright owner has "more" protection. I would argue the opposite -- that the lack of a copyright notice makes it MORE likely that a work will be infringed, because people who don't know the law (and copyright is not something a lot of people have a lot of experience in, unlike, say, criminal law, Law & Order, CSI and all that...) may be more likely to believe that something without a notice is automatically in the public domain. Since this isn't the case, it places a heavier burden on the copyright owner to police his rights.
A clear notice allows for the thorough examination of the work's copyright or the current lack thereof. With no notice there is no clear condition to judge whether publication has ever taken place and with no publication there can be no loss of protection. This is the part that is so perplexing to the novice like myself.
The problem here is that the difference between notice and no notice is no longer legally significant (in most cases) -- the difference between a registered copyright and an unregistered copyright is now where the big difference comes in. And registered copyrights are quite easy to find -- you just search the database at
www.copyright.gov and if it is not there, no registered copyright.
The distinction between a registered and unregistered copyright is very important, because a registration puts the public "on notice" that a copyright exists -- it may not be as easy as simply looking at page 1 of a book to find out, but it's still pretty easy. Since the public is on notice, the remedies for infringement of a registered copyright can be quite stiff. Conversly, if the copyright is NOT registered at the time of infringement, the infringer is deemed to be NOT "on notice," and therefore the remedies for the copyright owner are much, much more limited.
So, even though it may seem that the owner of an unregistered copyright has an "advantage" over the registered copyright owner, in fact, the owner of the unregistered copyright may find that it is either impossible or prohibitively expensive to enforce his copyright.
Further, the "publication v. protection" issue you allude to really only impacts works that were published without copyright notice before about 1965 (I think all of the later rules are retroactive back until about 1965, but I may be a year or two off) -- many (but not all) works that were published without a notice are now in the public domain.
Thus, the owner of "found film" has only one option. The outright sale of the film as a creative work unto itself... "collector to collector, no rights implied or given" much like a painting or other work of art.
But that's true anyway -- the copyright is separate from the tangible object covered by the copyright. So, even if you know the guy who made the film, unless he transfers to you the copyright along with the film, you only own the film and the right to play it yourself at home, and that's all that you can transfer to someone else. It's like buying a copy of a DVD -- all you own isd the right to play that DVD at home (and a couple other ancillary rights), and all you can transfer to someone else is the same bundle of rights that you yourself hold.
I have a sinking suspicion that I am helping someone with their homework (not everyone has a copy of Nimmer at home...), but I posted anyway because I hope the info might be useful to others...
