Chapter 900
PUBLICATION
Outline of Topics
901 Applicability of this chapter.
902 Statutory provision.
903 Authorization by the copyright owner.
904 General policy concerning publication.
905 Distribution as publication.
905.01 Multiple copies or phonorecords.
905.02 To the public.
905.03 Deposit in a public library.
905.04 Deposit for registration in the Copyright Office.
905.05 By sale or other transfer of ownership, or by
rental, lease, or lending.
906 Offering to distribute as publication.
906.01 No existing copies or phonorecords.
906.02 To a group of persons.
906.03 For purposes of further distribution, public
performance, or public display.
907 Alternative forms of publication.
908 Public performance or display not a publication.
908.01 To perform.
908.02 To display.
908.03 Public or private.
909 Publication of recorded material first distributed
before January I, 1978.
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Chapter 900
PUBLICATION
Outline of Topics - 2 –
910 Date and nation of first publication.
910.01 General policy concerning date and nation of
first publication.
910.02 Choice of a date of first publication.
910.03 Release date.
910.04 Embodiment of previously unpublished material
in another work.
910.05 Publication of part of a work.
910.06 publication in serial form.
910.07 publication of separate parts or installments.
910.08 Previous registration and new versions.
910.09 Works first published outside the United States.
911 Problems relating to date of publication.
911.01 No date of publication.
911.02 Incomplete date.
911.03 Impossible or improbable date.
911.04 Other calendrical systems.
4911.05 Separate parts or installments.
911.06 Previous edition or version.
912 Indicia of publication.
912.01 Appearance of deposited material.
[1984]
Chapter 900
PUBLICATION
901 Applicability of this cha~. The provisions of this
chapter are applicable only to acts which occurred on or after January 1, 1978. copyright Office practices concerning publication before January 1, 1978, are stated in Compendium I and generally still apply.
902 Statutory provisions. Publication is 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. 17 U.S.C. 101.
903 Authorization by the copyright owner. Not included in the statutory definition of "publication" but implicit in the meaning of the term as applied to copyright
registration and related activities is the requirement
that acts constituting publication must be by the copyright owner or under his or her authority. The unauthorized acts of others do not result in such
publication. Section 106 of the current Act explicitly
provides that the owner of copyright has the sole power to authorize distribution of "copies or phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. II See 17 U.S.C. 106(3).
904 General policy concerning publication. The following
points represent the general policy of the copyright
Office concerning publication:
1) The Office will ordinarily not attempt to decide whether or not publication has occurred but will generally leave this decision to the applicant.
2) The Office will not attempt to make factual investigations to determine whether or not publication has occurred.
3) When asked for advice, the Office will ordinarily refrain from taking a definite position, but will quote the statutory definition and discuss the
meaning of publication in general terms.
900-1
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900-2
904 General policy concerning publication. (cont'd)
4) Where the applicant provides the Office with a statement of facts on the basis of which the applicant concludes that publication has occurred, registration will be made as a published work, unless the facts as stated by the applicant clearly show that publication, as defined by the copyright law, has not taken place.
5) Where the applicant seeks registration as an unpublished work and provides the Office with a statement of facts which clearly show that publication has occurred, the Office will not register a claim to copyright in the work as unpublished.
6) Where the Office has information which is at variance with a statement concerning publication provided by the applicant, or where the appearance of the copy or phonorecord deposited seems clearly inconsistent with such statement, the Office will correspond with the applicant.
905 Distribution as publication. Works are published when copies or phonorecords are distributed by the copyright owner or under his or her authority to the public by sale or other transfer of ownership, or by rental, lease, or lending.
905.01 Multiple copies or phonorecords. The statutory definition refers to the distribution of "copies or phonorecords." A work which exists in only one copy or phonorecord is generally not regarded as published when the single existing copy or phonorecord is transferred by sale or otherwise, or when it is rented, leased, or lent. However, where multiple copies are available for distribution, the transfer, rental, lease, or lending of a single copy or phonorecord will be sufficient for registration to be made as a published work.
Examples:
1) If an original oil painting is sold to a private collector, that sale does not constitute publication.
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905 Distribution as publication. (cont'd)
905.01 Multiple copies or phonorecords. (cont'd)
Examples: (cont'd)
2) Where a manufacturer of pottery places copies of its work on sale at a roadside stand next to the factory and sells a single copy, publication does take place.
905.02 To the public. In order for publication to occur by the distribution of copies or phonorecords, such distribution must be "to the public" rather than a more limited distribution. Generally, members of the public are persons who are under no implied or express restriction with respect to disclosure of the work's contents. See H.R. Rep. 94-1476, 94th Cong., 2d Sess. 138 (1976).
Examples:
1) The distribution of copies on a busy street corner is publication.
2) The unrestricted gift of copies constitutes publication.
3) Leaving copies in a public place for anyone to take is publication.
4) Distributing texts at a seminar for use only by the recipients is ordinarily not publication.
NOTE: The fact that the copies bear a statement indicating that their distribution has been restricted or limited in some way will generally not constitute a sufficient basis for questioning whether or not publication occurred.
Examples:
1) "Confidential -- these specifications are for subscribers' use only."
2) "Not for general distribution."
3) "For professional use only."
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905 Distribution as publication. (cont'd)
905.03 Deposit in a public library. Where a copy or phonorecord of a work is deposited in a public library for unrestricted access by the public, the Copyright Office will not refuse registration as a published work. In such a case, the Office will assume that access to the deposit was unrestricted unless it has information to the contrary.
905.04 Deposit for registration in the Copyright Office. Deposit for registration in the Copyright Office will not be considered to constitute publication.
905.05 By sale or other transfer of ownership, or by rental, lease, or lending. publication occurs by the sale or other transfer of ownership of copies or phonorecords or by their rental, lease, or lending.
906 Offering to distribute as publication. The offering by the copyright owner, or under his or her authority, to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. See 17 D.S.C. 101. The statutory definition implies that the offering to distribute must be of existing multiple copies or phonorecords.
Examples:
1) The offering of a new line of greeting cards that are in existence to retail outlets is publication.
2) The offering by a film exchange to distribute prints of an existing motion picture for performance in theatres is publication.
3) Offering a work, such as a cartoon or column, to a number of syndicators for purposes of further distribution would normally constitute publication.
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900-5
906 Offering to distribute as publication. (cont'd)
906.01 No existing copies or phonorecords. The offering to distribute copies or phonorecords before any are available in a form ready for distribution does not constitute publication.
Examples:
1) The offering to distribute a motion picture that is still in production does not constitute publication.
2) The offering to distribute a sound recording which has not been fixed in its final form is not publication.
906.02 To a group of persons. The offering to distribute copies or phonorecords must be to a group of persons.
Example:
The offering to distribute musical scores to a group of band directors for purposes of public performance is publication.
906.03 For purposes of further distribution, public performance, or public display. The purpose of the offering must be further distribution, public performance, or public display. Hence an offering to distribute to a group of persons for their private use, private performance, or private display is not a publication.
Example:
The offering to distribute classical phonorecords to various radio stations for broadcast constitutes publication.
907 Alternative forms of publication. Since the statutory definition of publication is in two parts, one relating to direct distribution to the public and the other relating to the offering to a group for certain purposes, publication occurs if the facts fit either alternative.
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900-6
907 Alternative forms of publication. (cont'd)
Examples:
1) The actual distribution of 350 copies of a print to the public is publication, regardless of whether or not the prints were distributed for purposes
of private or public display.
2) The offering to distribute fine art prints to a group of persons for public display constitutes publication, whereas the offering to distribute such material for private display is not a publication.
908 Public performance or display not a publication. A public performance or public display of a work does not of itself constitute publication. See 17 D.S.C.
101. Therefore, publication will be questioned where
words such as “performed,” “televised,” “broadcast,” “posted,” “exhibited,” etc., have been added to the publication space of the application.
908.01 To perform. To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. 17 D.S.C. 101.
908.02 To display. To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. 17 D.S.C. 101.
908.03 Public or private. Since the copyright law provides that the “public” performance or display of a work is not publication, it seems clear that performances and displays which are not public do not constitute publication. Thus, in effect, no private performance or display can amount to publication.
Examples:
1) Where a pictorial, graphic, or sculptural work was created in 1978 and placed on public display without any restrictions against copying, it is considered unpublished under the current Act.
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900-7
908 Public performance or display not a publication. (cont'd)
908.03 Public or private. (cont’d)
Examples: (cont’d)
2) A jazz band performing an original song as part of its act on a network television show is not publication.
3) It is not publication for a composer to perform his work in his home or in public.
909 Publication of recorded material first distributed before January 1, 1978. Where a musical, dramatic, or literary work was distributed only in the form of phonorecords before January 1, 1978, such musical, dramatic, or literary work was not registrable as a published work under the Act of 1909, as amended. Under the present law, the public distribution of phonorecords on or after January 1, 1978, publishes the musical, dramatic, or literary works recorded thereon. Therefore, if publication of a pre-1978 phonorecord continued on January 1, 1978, that date is considered to be the date of first publication of the underlying work for purposes of copyright registration.
910 Date and nation of first publication. A statement
of the date of first publication is required on applications for registration of claims to copyright in published works. The nation of first publication should also be given.
910.01 General policy concerning date and nation of first publication. The Copyright Office will generally accept without question the date of first publication given by the applicant. Although the Office may offer general guidelines concerning the selection of a date, the final choice is ordinarily left to the applicant. The Office will generally decline to accept the date given only if a statement made by the applicant clearly shows that first publication did not occur on that date. The Office will correspond with the applicant if it has information inconsistent with the statement used by the applicant as the basis for the date given.
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900-8
910 Date and nation of first publication. (cont'd)
910.01 General policy concerning date and nation of
first publication. (cont'd)
Similarly, the Copyright Office will generally
accept the statement of the applicant on nation of
first publication, unless it appears to be clearly
inconsistent with the facts stated by the applicant
or the information which the Office has with
respect to the place of first publication.
910.02 Choice of a date of first publication. When the
applicant is uncertain as to the date to be given
in the application, the Copyright Office may out-
line the following factors to be considered:
1) Where the applicant is uncertain as to which
of several possible dates to choose, it is
generally advisable to choose the earliest
date, to avoid implication of an attempt to
lengthen the copyright term, or any other
period prescribed by the statute.
2) When the exact date is not known, the best 4
approximate date may be chosen. In such cases,
qualifying language such as "approximately,"
"on or about," "circa," "no later than," and
"no earlier than," will generally not be ques-
tioned.
NOTE: The date given on the application as the
date of first publication is important. It may
determine the three-month grace period of 17 U.S.C.
412(2) and the five-year period provided in 17
U.S.C. 405(a)(2) for works published without a
notice of copyright. It may also determine the
copyright term for works made for hire and for
anonymous and pseudonymous works.
910.03 Release date. If copies or phonorecords are put
into the "stream of commerce" on one date, for
release by distribution "over the counter" to the
public on a later date, the Copyright Office will
accept either date as first publication.
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900-9
910 Date and nation of first publication. (cont'd)
910.04 Embodiment of previously unpublished material in
another work. The inclusion of an unpublished work
in another work that is later published results in
the publication of the first work to the extent
that it is disclosed in the published work.
Examples:
1) Where a preexisting unpublished screenplay is
embodied in a motion picture, those elements
of the screenplay disclosed in the motion
picture are considered to be published at the
same time the motion picture is published.
2) The publication of copies of a lithograph that
reproduce a previously unpublished original oil
painting, publishes the oil painting to the
extent that it is disclosed in the lithograph.
3) Where an unpublished sculptural work is embodied
in a published motion picture, an application
for registration of the sculpture may assert
that the work is unpublished: in such a case,
space 6 on the application form need not be
completed. NOTE: It is the view of the Copy-
right Office that ordinarily the publication of
a motion picture would not result in sufficient
disclosure of a sculptural work embodied in the
motion picture to effect a publication of such
work in the copyright sense.
910.05 Publication of part of a work. Publication of a
portion of a work does not necessarily mean that
the work as a whole has been published.
Examples:
1) Publication of a detailed plot summary of a
play does not constitute publication of the
playas a whole.
2) Publication of a movie version of an unpub-
lished story publishes only those elements
of the story embodied in the motion picture.
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900-10
910 Date and nation of first publication. (cont'd)
910.06 Publication in serial form. Where a work first
appears 1n ser1al form and later comes out as a
book, its appearance in serial form is considered
first publication. Registration of a claim to
copyright in the book would depend upon the
existence of new copyrightable material appearing
for the first time in the book.
910.07 Publication of separate parts or installments.
Where various parts or installments of a work are
first published separately, each part or install-
ment is regarded as a separate work, and if regis-
tered, must be registered separately. However,
where a work is first published as a unit, the fact
that parts of the work are also distributed
separately will not preclude a single registration
for the work.
910.08 Previous registration and new versions. Where the
work in question is the first published edition of
a work previously registered in unpublished form, ~
the application should give the date of first ~
publication. This is true even if the published
edition contains no new matter and the copyright
term is not computed from the date of publication.
If the work is a new version of a previously
published work, the application should give the
date of publication of the new version, rather
than that of the previously published edition.
910.09 Works first published outside the United States.
An app11cat1on cover1ng a work f1rst pub11shed
outside the United States should state the date of
first publication there, and should be accompanied
by a copy or phonorecord of the foreign edition as
first published. As a rule, registration for a
later published U.S. edition of such work depends
upon whether or not new copyrightable material has
been added.
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900-11
911 Problems relating to date of publication. The
following are problems relating to the date of
publication.
911.01 No date of publication. An application in which
no date of publication is given will ordinarily not
be questioned, even though the copies appear to be
in published form. In such cases, registration may
be made without correspondence unless it seems
clear that the applicant fails to understand the
registration requirements and actually wishes
registration of the work as published.
911.02 Incomplete date. An application lacking one or
more of the three necessary elements of the date
of publication (month, day, and year) will not be
accepted. Where the element is missing from the
appropriate space on the application, the Copy-
right Office may either request the information
and add it to the application, or request a new
application. Similarly, an application containing
a date extending over a period of time will not be
accepted.
Examples of unacceptable statements:
1) "January, 1981."
2) "July 20-26, 1981."
3) "Last week of December, 1980."
911.03 Impossible or improbable date. A date of publi-
cation that is impossible, such as "February 30,
1981," is not acceptable. If a date is given on
the application which, if correct, would signify
that the work is in the public domain in the
United States, as for example, "March 3, 1867,"
such application will be questioned.
911.04 Other calendrical systems. When a date of publi-
cation is given which appears to be in terms of a
calendrical system other than the current Gregorian
calendar, the Copyright Office will ask that the
date be stated by the applicant in accordance with
the current Gregorian calendar.
[1984]
900-12
911 Problems relating to date of publication. (cont'd)
911.05 Separate parts or installments. An application
giving more than one date of publication for the
same work is not acceptable. See section 910.07
above.
911.06 Previous edition or version. An application giving
only the date of publication of a previous edition
or version is not acceptable. See section 910.08
above.
912 Indicia of publication. In general, the presence
of a date of publication in the application will
be accepted as indicating that publication has taken
place, unless information furnished by the applicant,
other information known to the Copyright Office, or
the deposited material raises questions as to whether
publication actually has taken place. In such cases,
the Office will communicate with the applicant.
912.01 Appearance of deposited material. Material sub-
mitted as published will not generally be ques-
tioned on the single ground that such material
is handmade or in preliminary form, e.g.,
photocopies, mimeographed copies, etc., if
publication in that form appears normal in the
light of the nature of the work. However, such
material may be questioned when the copies con-
tain deletions or insertions, or when the copies
appear to be incomplete.
Examples:
1) Artist's handmade drawing of a commercial
label will be questioned.
2) Mimeographed copies of a play would normally
not be questioned.
[END OF CHAPTER 900]
[1984]