Hanes & Bartels Feb. 23, 2012

In American Visuals Corp. v. Holland (2d Cir. 1956) Judge Frank observed that “[i]t is, however, perfectly clear that the word ‘publication’ does not have the same legal meaning in all contexts. Its copyright definition, for example, differs from its meaning where applied in respect of torts…or in respect of privacy.” He warned that “the term ‘publication’ is clouded by semantic confusion where the term is defined for different purposes, and that we have here an illustration of the one-word-one-meaning-only fallacy.”

The notion of publication was of great significance prior to January 1, 1978, the effective date of the 1976 Copyright Revision Act and during the “decennial” period from January 1, 1978 until March 1, 1989, the effective date of the Berne Convention Implementation Act. Prior to January 1, 1978 a common law copyright existed in the original works of an author or artist and continued indefinitely until publication of the work. The act of publication then triggered the acquisition of a statutory copyright, provided that an appropriate copyright notice was applied to the published work. Failure to include the necessary copyright notice on the published work invalidated the copyright.

The 1976 act abolished the concept of common law copyright and as of March 1, 1989 the copyright notice is no longer necessary to acquire or maintain copyright protection. However, the concept of publication is still very significant to the proper application of the copyright law. Not only will legal consequences under the 1976 Act vary depending upon whether a publication of the work occurred before or after January 1, 1978, the definition of publication may differ depending upon whether the activities said to constitute publication occurred before or after January 1, 1978.

Under the 1976 Act, “publication” is defined as 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.

An intuitive interpretation of “publication” often leads to the wrong conclusion in the copyright context. For example, no publication results from the delivery of a lecture or sermon, the public performance of a musical composition or a dramatic work, the radio or television broadcasting of a script, or the projection of a motion picture film. Placing a work in a public file does not constitute an act of publication, such as placing a set of architectural plans on file with a public authority. On the other hand, the posting of photographs or music on the internet, similar to the web pages themselves, are considered to be publications.

The foregoing are examples only and further study and analysis must be made before concluding that a publication of a particular work has occurred and what the date of publication is. In filling out an application for copyright registration of a published work, the date of first publication of the work is a question that must be answered. The copyright notice should contain the year date of first publication. Are you sure you have the correct answer? An incorrect answer may invalidate the copyright registration and protection of your masterpiece .

In addition to the application for copyright registration, awareness and appreciation of the date of actual publication of a work is essential for many other aspects of copyright protection. While under the current Act (Act of 1976), publication is not a defining event, as it was prior to January 1, 1978, the concept of publication still has significance in copyright law and understanding what is and what is not an event of publication has important consequences to the copyright owner as well as to one wanting to copy someone else’s work. Whether or not a publication has occurred after the effective date of the current Act can be significant in each of the following and other copyright contexts:

(1) a copyright notice had to appear on copies and phonorecords of decennial works that were first published before March 1, 1989;(2) the copyright notice that had to appear on all such decennial copies and phonorecords had to include the year of first publication;(3) the requirement to deposit two archival copies of the best edition within three months after the date of first publication applies only to published works;(4) copyright for anonymous and pseudonymous works, and works made for hire endures for a term of 95 years from the year of its first publication or 120 years from its creation, whichever expires first;(5) even where the usual term of copyright is for the life of the author plus 70 years applies, the date of first publication is significant in that 95 years after the first publication of such a work, or 120 years from creation if that is sooner, it may be presumed that the author has been dead for at least 70 years unless the Copyright Office records relating to the death of authors indicates to the contrary;(6) registration in the Copyright Office must occur within five years of the first publication in order for the registration certificate to constitute prima facie evidence of the validity of the copyright;(7) statutory damages and attorney’s fees are available as to unpublished works only if registration preceded infringement, and as to published works only if registration either preceded infringement, or if registration occurred within three months after first publication;(8) the scope of fair use is diminished for unpublished works.

Publication and the related concept of “distribution” are important terms in understanding and correctly applying the law of copyright from registration to any infringement analysis.