Definition[edit | edit source]

Under the 1976 Copyright Act, a published work is one that has been distributed in material copies.

Overview[edit | edit source]

Section 101 of the Copyright Act defines “publication” as a distribution of copies or phonorecords to the public by sale or other transfer of ownership or by rental, lease, or lending. Copies and phonorecords in turn are defined as material objects. Together, these definitions embody two principal requirements for a work to be deemed published.

The material copies requirement of publication does not necessarily mean that a copy must actually change hands for the work to be published. Courts have found a publication to have taken place when the public (with the authorization of the rights holder) has the ability to produce material copies of copyrighted works, such as through downloading an electronic copy or printing a copy of a work distributed through the Internet. In a succession of cases, courts have ruled that the unauthorized dissemination of works such as sound recordings, photographs, and software through the Internet infringes the rights holder’s distribution right because the public obtains the ability to make material copies of the protected works.[1]

On the other hand, works are not deemed published when they are publicly performed or displayed by broadcast, streaming, or other forms of dissemination that do not enable a user to make a copy.

  1. See, e.g., A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001); Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc., 982 F.Supp.2d 398, 401 (S.D.N.Y. 2002).
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