• A certificate of registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration, provided that the work is registered before or within five years after the work is first published. 17 U.S.C. § 410(c).
• The copyright owner may be entitled to claim statutory damages and attorney's fees in an infringement lawsuit, provided that the work was registered before the infringement began or within three months after the first publication of the
work. See 17 U.S.C. §§ 412, 504(c), 505.
• Many of the exceptions and limitations set forth in Sections 107 through 122 of the Copyright Act may be impacted depending on whether the work is published or unpublished. See, e.g., 17 U.S.C. §§ 107, 108, 115, 118, and 121.
• As a general rule, U.S. works first published in the United States before March 1, 1989 must be published with a valid copyright notice. Failing to include a valid notice on a U.S. work published during this period may invalidate the copyright in that work. For a detailed discussion of these notice requirements, see Chapter 2200, Sections 2203 through 2207.
1904 General Policies Concerning Publication
This Section discusses the U.S. Copyright Office's general practices and procedures for examining published and unpublished works.
1904.1 Applicant Makes the Determination
The applicant — not the U.S. Copyright Office — must determine whether a work is published or unpublished.
The U.S. Copyright Act is the exclusive source of copyright protection in the United States, and all applicants — both foreign and domestic — must demonstrate that a work satisfies the requirements of U.S. copyright law to register a work with the Office. Determining whether a work is published or unpublished should be based on U.S. copyright law under Title 17, and it should be based on the facts that exist at the time the application is filed with the Office, even if the work was created in a foreign country, first published in a foreign country, or created by a citizen, domiciliary, or habitual resident of a foreign country.
Upon request, the Office will provide the applicant with general information about the provisions of the Copyright Act, including the statutory definition of publication, and will explain the relevant practices and procedures for registering a published or unpublished work with the Office. The Office will not give specific legal advice on whether a particular work has or has not been published. However, if an assertion is clearly contrary to facts known by the Office, a claim may be questioned, or in certain situations, refused.
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