1909 Copyright Act
Under the 1909 Copyright Act, a publication was deemed to occur
|“||when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public, or when an authorized offer is made to dispose of the work in any such manner even if a sale or other such disposition does not in fact occur.||”|
Publication, while of immense importance under the 1909 Act, was not statutorily defined. Case law created a distinction between a general publication and a limited publication, holding that only the former operated to divest common law copyright and subject a work to the federal statutory scheme. Under the 1909 Act, a publication was deemed to occur "when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public, or when an authorized offer is made to dispose of the work in any such manner even if a sale or other such disposition does not in fact occur."
Courts treated these two concepts of publication so as to mitigate the harsh forfeiture effects of an improper publication. "From the results of the decided cases, the principle is discernible that it takes more publication to destroy a common-law copyright than to perfect a statutory copyright.""(I)t takes more in the way of publication to invalidate any copyright, whether statutory or common law, than to validate it." The significance of these cases lie in the recognition that publication may more readily be found if the issue is whether the copyright statute has been complied with than if forfeiture of common law rights is involved.
1976 Copyright Act
Until the 1976 Copyright Act became effective, state law protected unpublished works, and federal law protected published works that met the statutory requirements. Once a work was published, it lost state law protection. If it was published with notice it was entitled to protection under federal law. If it was published without notice, it entered the public domain.
The 1976 Act created a unitary system of copyright, embracing unpublished works within the federal system and preempting state laws that provide rights equivalent to those provided by federal law in works that come within the subject matter of copyright.
|“||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.||”|
This definition of publication was intended to make clear that "any form of dissemination in which a material object does not change hands — performances or displays on television, for example — is not a publication no matter how many people are exposed to the work." It also makes clear that the distribution must be "to the public." In addition, the following do not constitute publication: printing or other reproduction of copies, or sending copies to the Copyright Office.
The doctrine originally was developed by courts to save works from losing copyright protection when copies of the work were only distributed to a restricted number of people and for a restricted purpose without a copyright notice. Those works would not be considered distributed to the public (i.e., published) and, therefore, not subject to the notice requirement.
Although the notice requirement was eliminated in 1989, and thus the most critical justification for the doctrine no longer exists, the few cases dealing with publication since 1989 suggest that courts will continue to apply the doctrine of limited publication.
- only works that are published in the United States are subject to mandatory deposit in the Library of Congress;
- deposit requirements for registration with the Copyright Office differ depending on whether a work is published or unpublished;
- the scope of the fair use defense may be narrower for unpublished works;
- unpublished works are eligible for protection without regard to the nationality or domicile of the author;
- published works must bear a copyright notice if published before March 1, 1989; and
- certain limitations on the exclusive rights of a copyright owner are applicable only to published works.
- American Vitagraph v. Levy, 659 F.2d 1023, 1027 (9th Cir. 1981) (full-text).
- Hirshon v. United Artists Corp., 243 F.2d 640, 644-45 (D.C. Cir. 1957) (full-text); see also American Visuals Corp. v. Holland, 239 F.2d 740 (2d Cir. 1956) (full-text).
- Hirshon, at 645.
- But see 17 U.S.C. §104A (2007) (regarding restoration of copyright in certain foreign works).
- 17 U.S.C. §301(a). State law protection for pre-1972 sound recordings is not preempted until February 15, 2067. Id. §301(c).
- See H.R. Rep. 94-1476, at 138, reprinted in 1976 U.S.C.C.A.N. 5754 (hereinafter “House Rpt.”).
- See, e.g., Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.) (full-text), supplemented, reh'g denied, 818 F.2d 252 (2d Cir.) (full-text), cert. denied, 484 U.S. 890 (1987) (copyrighted letters did not lose unpublished status by placement in library); WPOW, Inc. v. MRLJ Enters., 584 F. Supp. 132 (D.D.C. 1984) (full-text) (filing of work with federal agency did not constitute publication).
- See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright §4.04 (hereinafter Nimmer on Copyright). In a couple of aspects, the concept of publication was broadened to include the authorization of offers to distribute copies in a commercial setting and the distribution to certain middlemen, such as retailers, motion picture exhibitors and television stations. See Paramount Pictures Corp. v. Rubinowitz, 217 U.S.P.Q. (BNA) 48, 50 (E.D.N.Y. 1981) (discussing evolution of definition of publication); National Broadcasting Co., Inc. v. Sonneborn, 630 F. Supp. 524, 532-33 (D. Conn. 1985) (full-text).
- See 1 Nimmer on Copyright §4.13[B]; Kunycia v. Melville Realty Co., 755 F. Supp. 566, 574 (S.D.N.Y. 1990) (full-text).
- See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952) (full-text). Before the notice requirement was eliminated, the Copyright Act generally provided for the invalidation of the copyright in a work if copies of the work were distributed to the public, under the authority of the copyright owner, without a copyright notice. In virtually all instances where the limited publication doctrine was applied, the distribution was noncommercial in nature.
- See Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 1451-54 (9th Cir. 1991) (full-text) (distribution of personalized Oscar statuettes to select group of distinguished artists constituted limited publication); Lish v. Harper's Mag. Found., 807 F. Supp. 1090, 1102 (S.D.N.Y. 1992) (full-text) (letter distributed to members of class remained unpublished.
- 17 U.S.C. §407. "[T]he owner of copyright or of the exclusive right of publication in a work published in the United States shall deposit, within three months after the date of publication — (1) two complete copies of the best edition; or (2) if the work is a sound recording, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with such phonorecords." 17 U.S.C. §407(a). The deposit requirements are not conditions of copyright protection, but failure to deposit copies of a published work may subject the copyright owner to significant fines. See 17 U.S.C. §407(a), (d).
- See 17 U.S.C. §408(b) ("the material deposited for registration shall include — (1) in the case of an unpublished work, one complete copy or phonorecord; (2) in the case of a published work, two complete copies or phonorecords of the best edition; (3) in the case of a work first published outside the United States, one complete copy or phonorecord as so published; (4) in the case of a contribution to a collective work, one complete copy or phonorecord of the best edition of the collective work").
- The first factor of the fair use analysis — the nature of the copyrighted work — generally weighs against a finding of fair use if the work is unpublished. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (full-text). In 1992, Congress was prompted to amend Section 107 by the near determinative weight courts were giving to the unpublished nature of a work. See Act of October 24, 1992, Pub. L. 102-492, 1992 U.S.C.C.A.N. (106 Stat.) 3145 (adding to the fair use provisions, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.").
- 17 U.S.C. §104(a); House Rpt., at 58 (Section 104(a) "imposes no qualification of nationality and domicile with respect to unpublished works"); see also 17 U.S.C. §104(b) (national origin requirements for published works).
- 17 U.S.C. §405. For such works, failure to include a copyright notice risks total loss of copyright protection. See id. Works published after March 1, 1989 (the effective date of the Berne Convention Implementation Act of 1988) may (but are not required to) bear a copyright notice identifying the year of publication and the name of the copyright owner. See 17 U.S.C. §401.
- See generally 17 U.S.C. §§107-20. See, e.g., 17 U.S.C. §118 (compulsory license is available for the use of certain published works in connection with noncommercial broadcasting).