Compendium II: Copyright Office Practices - Chapter 900

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910.04 Embodiment of previously unpublished material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.

 

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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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900-3

 

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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900-4

 

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]