1906.3 The Copies or Phonorecords Must Be in Existence
The statutory definition indicates that offering to distribute copies or phonorecords constitutes publication, provided that the copies or phonorecords exist when the offer is made. Offering to distribute copies or phonorecords before they exist or before they are ready for further distribution, public performance, or public display does not constitute publication.
Examples:
• Offering a new line of toys to a group of retailers constitutes publication, provided that the toys are available for distribution when the offer is made.
• Offering prints of a motion picture to a group of theater owners constitutes publication, provided that the prints are available for public performance when the offer is made.
• Offering a cartoon to a group of syndicators constitutes publication, provided that the work is available for distribution when the offer is made.
• Offering to distribute a motion picture that is currently in production does not constitute publication.
• Offering to distribute a sound recording that has not been fixed in its final form does not constitute publication.
1907 Distributing the Work vs. An Offer to Distribute the Work
The statute states that a work is published when copies or phonorecords are distributed to the public. It also states that offering to distribute copies or phonorecords to a group of persons for the purpose of further distribution, public performance, or public display constitutes publication. See 17 U.S.C. § 101 (definition of "publication"). In other words, publication occurs when either of these conditions has been met.
Examples:
• Distributing copies of a photograph to the public constitutes publication (even if the copies were offered solely for private display).
• Offering to distribute copies of a lithograph to a number of galleries for the purpose of public display constitutes publication, but offering the same copies to a group of individuals solely for private display does not.
Chapter 1900 : 10
12/22/2014
