• Selling a product with copyrightable artwork on the packaging and label constitutes publication of that artwork.
• Mailing copies of a catalog to potential customers constitutes publication of that catalog and any unpublished works revealed in that work.
• Distributing copies of a leaflet on a street corner constitutes publication of that work.
• Giving away copies of a photograph without further restriction constitutes publication of that work.
• Lending, renting, or leasing copies of a work constitutes publication of that work.
• Distributing copies of a motion picture through a retail service constitutes publication of that work.
If an actual distribution has not occurred, the work is considered unpublished. Likewise, a work is considered unpublished if the copies or phonorecords were not distributed to a member of the public, but instead were much more restricted, including an exchange between family members or social acquaintances.
The courts created the doctrine of "limited publication" to distinguish certain distributions from a "general publication" and to avoid the divestive consequences of publication without notice when it was clear the author (or copyright proprietor) restricted both the purpose and the recipients of the distribution. Generally, a limited publication is the distribution of copies of a work to a definitely selected group with a limited purpose and without the right of diffusion, reproduction, distribution, or sale. A limited publication is not considered a distribution to the public and, therefore, is not publication. See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952) (explaining that a publication is limited if it "communicates the contents of a [work] to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale ... [and is] restricted both as to persons and purpose.").
Examples:
• Sending copies of a manuscript to prospective publishers in an effort to secure a book contract does not constitute publication (regardless of whether the copies are returned).
• Distributing copies of a research paper that are intended solely for the use of the participants at a seminar generally does not constitute publication if there was no right of further diffusion, reproduction, distribution, or sale by the participants.
Chapter 1900 : 7
12/22/2014
