901Applicability of this chapter. 902Statutory provision. 903Authorization by the copyright owner. 904General policy concerning publication. 905Distribution as publication. 905.01Multiple copies or phonorecords. 905.02To the public. 905.03Deposit in a public library. 905.04Deposit for registration in the Copyright Office. 905.05By sale or other transfer of ownership, or by rental, lease, or lending. 906Offering to distribute as publication. 906.01No existing copies or phonorecords. 906.02To a group of persons. 906.03For purposes of further distribution, public performance, or public display. 907Alternative forms of publication. 908Public performance or display not a publication. 908.01To perform. 908.02To display. 908.03Public or private. 909Publication of recorded material first distributed before January 1, 1978.
910Date and nation of first publication. 910.01General policy concerning date and nation of first publication. 910.02Choice of a date of first publication. 910.03Release date. 910.04Embodiment of previously unpublished material in another work. 910.05Publication of part of a work. 910.06Publication in serial form. 910.07Publication of separate parts or installments. 910.08Previous registration and new versions. 910.09Works first published outside the United states. 911Problems relating to date of publication. 911.01No date of publication. 911.02Incomplete date. 911.03Impossible or improbable date. 911.04Other calendrical systems. 911.05Separate parts or installments. 911.06Previous edition or version. 912Indicia of publication. 912.01Appearance of deposited material.
Chapter 900
PUBLICATION
901
Applicability of this chapter. The provisions of this chapter are applicable only to acts which occurred on or after January 1, 1978. Copyright Office practices concerning publication before January 1, 1978, are stated in Compendium I and generally still apply.
902
Statutory provisions. Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute
publication. 17 U.S.C. 101.
903
Authorization by the copyright owner. Not included in the statutory definition of "publication" but implicit in the meaning of the term as applied to copyright registration and related activities is the requirement that acts constituting publication must be by the copyright owner or under his or her authority. The unauthorized acts of others do not result in such publication. Section 106 of the current Act explicitly provides that the owner of copyright has the sole power to authorize distribution of "copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." See 17 U.S.C. 106(3).
904
General policy concerning publication. The following points represent the general policy of the Copyright Office concerning publication:
1)
The Office will ordinarily not attempt to decide whether or not publication has occurred but will generally leave this decision to the applicant.
2)
The Office will not attempt to make factual investigations to determine whether or not publication has occurred.
3)
When asked for advice, the Office will ordinarily refrain from taking a definite position, but will quote the statutory definition and discuss the meaning of publication in general terms.
4)
Where the applicant provides the Office with a statement of facts on the basis of which the applicant concludes that publication has occurred, registration will be made as a published work, unless the facts as stated by the applicant clearly show that publication, as defined by the copyright law, has not taken place.
5)
Where the applicant seeks registration as an unpublished work and provides the Office with a statement of facts which clearly show that publication has occurred, the Office will not register a claim to copyright in the work as unpublished.
6)
Where the Office has information which is at variance with a statement concerning publication provided by the applicant, or where the appearance of the copy or phonorecord deposited seems clearly inconsistent with such statement, the Office will correspond with the applicant.
905
Distribution as publication. Works are published when copies or phonorecords are distributed by the copyright owner or under his or her authority to the public by sale or other transfer of ownership, or by rental, lease, or lending.
905.01
Multiple copies or phonorecords. The statutory definition refers to the distribution of "copies or phonorecords." A work which exists in only one copy or phonorecord is generally not regarded as published when the single existing copy or phonorecord is transferred by sale or otherwise, or when it is rented, leased, or lent. However, where multiple copies are available for distribution, the transfer, rental, lease, or lending of a single copy or phonorecord will be sufficient for registration to be made as a published work.
Examples:
1)
If an original oil painting is sold to a private collector, that sale does not constitute publication.
2)
Where a manufacturer of pottery places copies of its work on sale at a roadside stand next to the factory and sells a single copy, publication does take place.
905.02
To the public. In order for publication to occur by the distribution of copies or phonorecords, such distribution must be "to the public" rather than a more limited distribution. Generally, members of the public are persons who are under no implied or express restriction with respect to disclosure of the work's contents. See H.R. Rep. 94-1476, 94th Cong., 2d Sess. 138 (1976).
Examples:
1)
The distribution of copies on a busy street corner is publication.
2)
The unrestricted gift of copies constitutes publication.
3)
Leaving copies in a public place for anyone to take is publication.
4)
Distributing texts at a seminar for use only by the recipients is ordinarily not publication.
NOTE: The fact that the copies bear a statement indicating that their distribution has been restricted or limited in some way will generally
not constitute a sufficient basis for questioning whether or not publication occurred.
Examples:
1)
"Not for general distribution."
2)
"Confidential these specifications are for subscribers' use only."
3)
"For professional use only."
905.03
Deposit in a public library. Where a copy or phonorecord of a work is deposited in a public library for unrestricted access by the public, the Copyright Office will not refuse registration as a published work. In such a case, the Office will assume that access to the deposit was unrestricted unless it has information to the contrary.
905.04
Deposit for registration in the Copyright Office. Deposit for registration in the Copyright Office will not be considered to constitute publication.
905.05
By sale or other transfer of ownership, or by rental, lease, or lending. Publication occurs by the sale or other transfer of ownership of copies or phonorecords or by their rental, lease, or lending.
906
Offering to distribute as publication. The offering by the copyright owner, or under his or her authority, to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. See 17 U.S.C. 101. The statutory definition implies that the offering to distribute must be of existing multiple copies or phonorecords.
Examples:
1)
The offering by a film exchange to distribute prints of an existing motion picture for performance in theatres is publication.
2)
The offering of a new line of greeting cards that are in existence to retail outlets is publication.
3)
Offering a work, such as a cartoon or column, to a number of syndicators for purposes of further distribution would normally constitute publication.
906.01
No existing copies or phonorecords. The offering to distribute copies or phonorecords before any are available in a form ready for distribution does not constitute publication.
Examples:
1)
The offering to distribute a motion picture that is still in production does not constitute publication.
2)
The offering to distribute a sound recording which has not been fixed in its final form is not publication.
906.02
To a group of persons. The offering to distribute copies or phonorecords must be to a group of persons.
Example:
The offering to distribute musical scores to a group of band directors for purposes of public performance is publication.
906.03
For purposes of further distribution, public performance, or public display. The purpose of the offering must be further distribution, public performance, or public display. Hence an offering to distribute to a group of persons for their private use, private performance, or private display is not a publication.
Example:
The offering to distribute classical phonorecords to various radio stations for broadcast constitutes publication.
907
Alternative forms of publication. Since the statutory definition of publication is in two parts, one relating to direct distribution to the public and the other relating to the offering to a group for certain purposes, publication occurs if the facts fit either alternative.
Examples:
1)
The actual distribution of 350 copies of a print to the public is publication, regardless of whether or not the prints were distributed for purposes of private or public display.
2)
The offering to distribute fine art prints to a group of persons for public display constitutes publication, whereas the offering to distribute such material for private display is not a publication.
908
Public performance or display not a publication. A public performance or public display of a work does not of itself constitute publication. See 17 U.S.C. 101. Therefore, publication will be questioned where words such as "performed," "televised," "broadcast," "posted," "exhibited," etc., have been added to the publication space of the application.
908.01
To perform. To "perform" a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. 17 U.S.C. 101.
908.02
To display. To "display" a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. 17 U.S.C. 101.
908.03
Public or private. Since the copyright law provides that the "public" performance or display of a work is not publication, it seems clear that performances and displays which are not public do not constitute publication. Thus, in effect, no private performance or display can amount to publication.
Examples:
1)
Where a pictorial, graphic, or sculptural work was created in 1978 and placed on public display without any restrictions against copying, it is considered unpublished under the current Act.
2)
A jazz band performing an original song as part of its act on a network television show is not publication.
3)
It is not publication for a composer to perform his work in his home or in public.
909
Publication of recorded material first distributed before January 1, 1978. Where a musical, dramatic, or literary work was distributed only in the form of phonorecords before January 1, 1978, such musical, dramatic, or literary work was not registerable as a published work under the Act of 1909, as amended. Under the present law, the public distribution of phonorecords on or after January 1, 1978, publishes the musical, dramatic, or literary works recorded thereon. Therefore, if publication of a pre-1978 phonorecord continued on January 1, 1978, that date is considered to be the date of first publication of the underlying work for purposes of copyright registration.
910
Date and nation of first publication. A statement of the date of first publication is required on applications for registration of claims to copyright in published works. The nation of first publication should also be given.
910.01
General policy concerning date and nation of first publication. The Copyright Office will generally accept w1thout question the date of first publication given by the applicant. Although the Office may offer general guidelines concerning the selection of a date, the final choice is ordinarily left to the applicant. The Office will generally decline to accept the date given only if a statement made by the applicant clearly shows that first publication did not occur on that date. The Office will correspond with the applicant if it has information inconsistent with the statement used by the applicant as the basis for the date given. Similarly, the copyright Office will generally accept the statement of the applicant on nation of first publication, unless it appears to be clearly inconsistent with the facts stated by the applicant or the information which the Office has with respect to the place of first publication.
910.02
Choice of a date of first publication. When the applicant is uncertain as to the date to be given in the application, the Copyright Office may out line the following factors to be considered:
1)
Where the applicant is uncertain as to which of several possible dates to choose, it is generally advisable to choose the earliest date, to avoid implication of an attempt to lengthen the copyright term, or any other period prescribed by the statute.
2)
When the exact date is not known, the best approximate date may be chosen. In such cases, qualifying language such as "approximately," "on or about," "circa," "no later than," and "no earlier than," will generally not be questioned.
NOTE: The date given on the application as the date of first publication is important. It may determine the three-month grace period of 17 U.S.C. 412(2) and the five-year period provided in 17 U.S.C. 405(a)(2) for works published without a notice of copyright. It may also determine the copyright term for works made for hire and for anonymous and pseudonymous works.
910.03
Release date. If copies or phonorecords are put into the "stream of commerce" on one date, for release by distribution "over the counter" to the public on a later date, the Copyright Office will accept either date as first publication.
910.04
Embodiment of previously unpublished material in another work. The inclusion of an unpublished work in another work that is later published results in the publication of the first work to the extent that it is disclosed in the published work.
Examples:
1)
The publication of copies of a lithograph that reproduce a previously unpublished original oil painting, publishes the oil painting to the extent that it is disclosed in the lithograph.
2)
Where a preexisting unpublished screenplay is embodied in a motion picture, those elements of the screenplay disclosed in the motion picture are considered to be published at the same time the motion picture is published.
3)
Where an unpublished sculptural work is embodied in a published motion picture, an application for registration of the sculpture may assert that the work is unpublished: in such a case, space 6 on the application form need not be completed. NOTE: It is the view of the Copyright Office that ordinarily the publication of a motion picture would not result in sufficient disclosure of a sculptural work embodied in the motion picture to effect a publication of such work in the copyright sense.
910.05
Publication of part of a work. Publication of a portion of a work does not necessarily mean that the work as a whole has been published.
Examples:
1)
Publication of a detailed plot summary of a play does not constitute publication of the plays as a whole.
2)
Publication of a movie version of an unpublished story publishes only those elements of the story embodied in the motion picture.
910.06
Publication in serial form. Where a work first appears in serial form and later comes out as a book, its appearance in serial form is considered first publication. Registration of a claim to copyright in the book would depend upon the existence of new copyrightable material appearing for the first time in the book.
910.07
Publication of separate parts or installments. Where various parts or installments of a work are first published separately, each part or installment is regarded as a separate work, and if registered, must be registered separately. However, where a work is first published as a unit, the fact that parts of the work are also distributed separately will not preclude a single registration for the work.
910.08
Previous registration and new versions. Where the work in question is the first published edition of a work previously registered in unpublished form, the application should give the date of first publication. This is true even if the published edition contains no new matter and the copyright term is not computed from the date of publication. If the work is a new version of a previously published work, the application should give the date of publication of the new version, rather than that of the previously published edition.
910.09
Works first published outside the United States. An application covering a work first published outside the United States should state the date of first publication there, and should be accompanied by a copy or phonorecord of the foreign edition as first published. As a rule, registration for a later published u.s. edition of such work depends upon whether or not new copyrightable material has been added.
911
Problems relating to date of publication. The following are problems relating to the date of publication.
911.01
No date of publication. An application in which no date of publication is given will ordinarily not be questioned, even though the copies appear to be in published form. In such cases, registration may be made without correspondence unless it seems clear that the applicant fails to understand the registration requirements and actually wishes registration of the work as published.
911.02
Incomplete date. An application lacking one or more of the three necessary elements of the date of publication (month, day, and year) will not be accepted. Where the element is missing from the appropriate space on the application, the Copyright Office may either request the information and add it to the application, or request a new application. Similarly, an application containing a date extending over a period of time will not be accepted.
Examples of unacceptable statements:
1)
"January, 1981."
2)
"July 20-26, 1981."
3)
"Last week of December, 1980."
911.03
Impossible or improbable date. A date of publication that is impossible, such as "February 30, 1981," is not acceptable. If a date is given on the application which, if correct, would signify that the work is in the public domain in the United States, as for example, "March 3, 1867," such application will be questioned.
911.04
Other calendrical systems. When a date of publication is given which appears to be in terms of a calendrical system other than the current Gregorian calendar, the Copyright Office will ask that the date be stated by the applicant in accordance with the current Gregorian calendar.
911.05
Separate parts or installments. An application giving more than one date of publication for the same work is not acceptable. See section 910.07 above.
911.06
Previous edition or version. An application giving only the date of publication of a previous edition or version is not acceptable. See section 910.08 above.
912
Indicia of publication. In general, the presence of a date of publication in the application will be accepted as indicating that publication has taken place, unless information furnished by the applicant, other information known to the Copyright Office, or the deposited material raises questions as to whether publication actually has taken place. In such cases,the Office will communicate with the applicant.
912.01
Appearance of deposited material. Material submitted as published will not generally be questioned on the single ground that such material is handmade or,in preliminary,form, e.g., photocopies, mimeographed copies, etc., if publication in that form appears normal in the light of the nature of the work. However, such material may be questioned when the copies contain deletions or insertions, or when the copies appear to be incomplete.
Examples:
1)
Artist's handmade drawing of a commercial label will be questioned.
2)
Mimeographed copies of a play would normally not be questioned.
