Compendium of US Copyright Office Practices (1973)/Chapter 3

General Policy with Respect to Publication. Although the statute defines the "date of publication" (see part 3.2, below), the copyright law does not contain a definition of the act of publication itself, and this question is generally left to the courts in specific cases. As a rule, the Copyright Office will not attempt to make any factual determination as to whether or not publication has actually occurred, but will leave this decision to

the applicant.

a.

When asked £or advice, the Copyright Office will generally refrain from taking a definite position, but will state the meaning of publication in broad terms.

b.

In fairly clear cases, the Copyright Office may indicate the likelihood that publication has or has not taken place, without foreclosing the applicant from taking the opposite position.

c.

Where the applicant furnishes information that leaves Virtually no room for doubt on the question of publication, registration may be refused.

Examples:

(1)

Applicant states that he has kept one of the three copies of his short story manuscript, and that he considers depositing the other two in the Copyright Office an act of publication.

(2)

Applicant states that his booklet (which bears no notice) has been advertised for sale in a newspaper, and that 350 copies have been sold.

II.

Definition of General Publication. Under the court decisions, a general publication may be defined as the act of making one or more copies of a work available to the general public, with out express or implied restrictions as to future use, usually by means of a sale, an offering for sale, or a public distribution. As a rule, the act is one which, if the copies in question did not contain a copyright notice, would imply an abandonment of the right of copyright or a dedication to the public.

III.

Examples of General Publication. The statutory definition of the "date of publication" (17 U.S.C. § 26) indicates that the placing on sale, or public distribution of copies will normally be regarded as publication. In addition, the following acts may constitute publication in appropriate eases:

a.

Sale of a single copy. Sale or offering for sale of a single copy could be publication, depending upon the intent of the copyright proprietor. When the applicant states that only one copy has been sold, registration will be made if the applicant also indicates that he considers this publication.

b.

Leaving copies in a public place for anyone to take.

c.

Indiscriminate gifts of copies.

d.

Leasing or renting of copies. Lease or rental will ordinarily be regarded as publication unless the distribution was to a limited group or for a restricted purpose.

Examples:

(1)

Leasing of copies of a theatrical motion picture to film distributors or exhibitors would be regarded as publication.

(2)

Rental of a framed painting to an individual on a monthly basis for private display would not be regarded as publication.

e.

Deposit of copies in a public library.

1.

The deposit of a manuscript in a public library (including the Library of Congress) for unrestricted access by the public will be accepted as constituting publication.

2.

When an applicant asserts that a work was published deposit in a public library, it will be assumed that the deposit was unrestricted unless information to the contrary exists.

3.

Deposit in the Copyright Office for registration will not be deemed to constitute publication.

f.

Exhibition of an artistic or graphic work (See item 3.1.3 II.a. below.)

IV.

Publication of Part of a Work.

a.

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 play as a whole.

(2)

Publication of a movie version of an unpublished story does not constitute publication of

the story as such.

b.

Where a work first appears in serial form and later oomes out as a book, its appear ance in serial form is considered as first pub1ication. Registration of a claim in the book would depend upon the existence of new matter.

c.

Where a work of art (painting, drawing, sculpture, etc.) is reproduced in copies, and the reproduction is published, the Copyright Office regards the work of art as having been published to the extent that its copyrightable features also appeared in the reproduction.

3.1.2

Limited publication.

I.

Defipition of Limited Publication. Under the court decisions, a limited publication may be defined as one that communicates a knowledge of the contents of a work under conditions expressly or impliedly precluding its dedication to the public.

I.

Examples of Limited Publication. Usually limited publication takes place when copies have been circulated privately, have been distributed to a limited group for a specific purpose, or when restrictions as to the use of the work have been imposed.

Examples:

(1)

An application on Form E stating no date of publication will be accepted when the applicant indicates that, although printed professional copies have been distributed to various orchestra leaders and singers, he does not regard this as publication.

(2)

An application on Form G stating no date of publication will be accepted when the applicant explains that only 40 of his hand made Christmas cards were sent out to personal friends.

(3)

Registration for a printed text book will not be foreclosed by previous classroom distribution of mimeographed copies of the various chapters, when the applicant states that he does not regard the earlier distribution as publication.

III.

General policy with respect to limited publication. As a rule, the Copyright Office will not attempt to decide whether a publication is limited or general, but may indicate the probabilities in fairly clear cases. When there is virtually no room for doubt that general, rather than limited, publication has oocurred without statutory notice, registration may be refused.

3.1.3

Public disclosure by means other than distribution of copies.

I.

Performance or Rendition.

a.

The performance, rendition, or presentation or a literary, dramatic, or musical work, whether or not it is in public or for profit, is not regarded as publication of the work.

3.1.3

Public disclosure by means other than distribution of copies.(cont'd)

I.

Performance or Rendition.(cont'd)

b.

Broadcasts and telecasts are not considered publication, regardless of the size of their audience.

c.

Publication will be questioned where words such as "performed," "televised," "broadcast," etc., have been added to the publication line of the application.

II.

Exhibition of an Artistic or Graphic Work.

a.

Where an artistic or graphic work (i.e., a work registrable in Classes F-K) is placed on public exhibition with no restrictions against copying, an application that alleges publication will be accepted.

Examples:

(1)

A photograph exhibited at a White House Press Photographers' show at the Library of Congress, where neither the Library nor the Association places any restrictions against taking photographs of the exhibits.

(2)

A cemetery memorial erected in a public cemetery where there are no restrictions against copying the monuments.

(3)

A work of art exhibited at a public gallery where there are no posted by-laws or other notification against copying, and where there is no tacit understanding that copying is forbidden.

b.

Where the exhibition of an artistic or graphic work is not open to the public, or where restrictions on copying have been imposed, general ,publication is not deemed to have occurred.

3.1.3

Public disclosure by means other than distribution of copies.(cont'd)

II.

Exhibition of an Artistic or Graphic Work.(cont'd)

b.

(cont'd)

Examples:

(1)

Artistic glassware is exhibited at an industrial fair limited to the trade only.

(2)

Photographs of textile designs are exhibited with a legend expressly prohibiting reproduction.

c.

Where an artistic or graphic work Is shown on television, the Copyright Office will explain that it is not clear whether this constitutes publication, but will make registration as a published work if the applicant believes that publication has occurred.

d.

Publication will be questioned where the words "exhibited," "shown,","televised," etc., have been added in the publication line of an application covering an artistic or graphic work.

III.

Exhibition of Motion Pictures.

a.

Lease or rental of copies of a motion picture to a film exchange, film distributor, exhibitor, or broadcaster ordinarily constitutes publication (see item 3.1.1 III. d, above), but mere public exhibition would not be regarded as publication.

Examples:

(1)

A "sneak preview" of a theatrical film at a single theatre would not constitute publication.

(2)

A television film shown simultaneously on a network of 300 stations would not be regarded

as published.

b.

Publication will be questioned where the words "exhibited," "shown," "televised," etc ,have been added in the publication line of an application covering a motion picture.

IV.

Distribution of Phonorecords.

a.

A phonorecord, such as a disc, tape, or other similar reproduction of a sound recording, is not regarded as a "copy" of the musical composition, dramatic composition, or literary work recorded on it, and is not acceptable as a deposit copy for copyright registration of the musical composition or the literary or dramatic work. Therefore, the act of distributing phonorecords does not constitute such publication as will invest a statutory copyright, except for registration as a sound recording in Class N.

b.

For the purposes of securing statutory copyright and registration for a sound recording, phonorecords are regarded as "copies" thereof, and discs, tapes, cassettes, cartridges, and other similar reproductions of sound recordings will be accepted as deposit copies in Class N.

c.

Distribution of phonorecords may constitute either investitive or divestitive publication of a sound recording, and the rules stated in sections 3.1.1 and 3.1.2 above are applicable.

Part 3.2 DATE OF PUBLICATION

3.2.1

In General.

I.

Definition. The date of publication is defined in the copyright law (11 U.S.C. §26) as the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.

II.

General Policy with Respect to the Date of Publication.

a.

While the Copyright Office may offer some general guidance concerning the choice of a specific publication date, the final decision is up to the applicant.

b.

The date of publication stated in the application must be complete (month, day, and year), unqualified, ans earlier than the date the application was submitted.

3.2.2

Choice of a date.

I.

Factors to Consider. When the applicant is uncertain to the date he should state, the Copyright Office., outline the following factor to be considered:

a

When the exact date is not known, the best approximate date may be chosen, but it should be stated without qualifying language.

b

Where the application is uncertain as to which of several possible dates to choose, it is generally advisable to choose the earliest date, to avoid duplication of an attempt to lengthen the copyright term.

c.

In the case of books, the affidavit may either state the date of publication or the date of application or printing, while the application must

state the date of publication. Ordinarily, a difference between these dates will not be questioned.

II.

Consignment or Release. Books and other works are frequently sold or consigned before the date set for their "publication" or release to the general public. In such cases, the Copyright Office will accept the date chosen by the applicant without question.

III.

Publication of Separate Parts or Installments.

a.

Where various parts or installments of a work are first published separated, each part or installment is regarded as a separate work, subject to its own registration on the basis of its own publication date.

b.

An application giving more than one date of publication will not be accepted.

c.

Where a work is first published as a unit, the fact that parts of the work are later

distributed separately will not preclude a single registration for the work.

Example:

Syndicated cartoons first published by distribution in "book" form to newspapers.

IV.

Previous Registration and New Versions.

a.

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.

b.

Where 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.

V.

Works First Published Abroad.

a.

An application covering a work first published abroad should state the date of first publication abroad, and should be accompanied by a copy or

copies of the foreign edition. As a rule, registration f'or an American edition of the work depends upon whether or not new matter has been added.

b.

An application covering an American edition or a work first registered for ad interim copyright should state the date of publication of the American edition, but should also indicate the year date of publication or the foreign edition.

3.2.3

Unacceptable dates of publication.

I.

Date Missing.

a.

In cases where registration can be made for published works only, an application in which no date of publication is given will generally be rejected unless it appears likely that publication has taken place or will take place in the near future.

b.

In classes where registration can be made for both unpublished and published works, an application in which no date of publication is given will be questioned if the copies appear susceptible at publication. (See item 3.1.II.e, below.)

c.

Where it is probable that publication has taken place or will take place in the near future, a new application following publication will generally be suggested. However, in classes where unpublished registration is possible, registration may be made without correspondence if it seems clear that the applicant understands the statutory requirements and

actually wishes registration in unpublished form.

II.

Incomplete Date. An application lacking one or more or the three necessary elements at the date of publication (month, day, and year) will not be accepted.

a.

Where the element is missing from the publication line of the application, the Office may either request the information and add it to the application, or request a new application.

b.

Where the date given in the affidavit on Form A is incomplete, a new application and affidavit will be requested.

III.

Qualified or Indefinite.

a.

An application in which the date of publication is qualified by language such as "approximately," "on or about," "posted" (for billboard posters), "exhibited," "telecast," etc., will not be accepted.

b.

An indefinite date, such as one extending over a period of time, will not be accepted.

Examples:

(1)

"July 20-26, 1962"

(2)

"Last week of December, 1962"

IV.

Separate Parts or Installments. An application giving more than one date of publication will not be accepted. (See item 3.2.2 III, above.)

V.

Previous Edition or Version. An application giving only the date of publication for a previous edition or version will not be accepted. (See item 3.2.2 IV, above.)

VI.

Application in Advance of Publication. An application stating a date of publication that is later than the date the application is received will ordinarily not be accepted.

a.

Where the date of publication given in the application is less than one month in advance of the date the application was received in the Copyright Office, the application, copies, and fee will be retained, and the applicant will be requested to submit a new application after publication occurs.

b.

Where the date of publication given in the application is more than one month in advance of the date of receipt, the application will be retained but the copies and fee will be returned and the case will be closed. The applicant will be asked to submit a new application, copies, and fee after publication.

c.

Where the date of publication is the same as, or a few days earlier than, the date of receipt in the Copyright Office, and the circumstances clearly indicate that the application left the applicant's hands before the date of publication stated in it, a new application will be requested.

Example:

An application received March 2, 1962 gives March 1, 1962 as the date of publication, but was mailed in an

envelope postmarked from Honolulu on February 27.

d.

In the case of well-established daily newspapers, application on Form P may be accepted if received not more than one month in advance of the date of publication they state.

Part 3.3 EVIDENCE OF PUBLICATION

3.3.1

Factors raising questions as to publication.

I.

General Practice. In general, the presence of a date of publication in the application will be accepted as indicating that publication has taken place, unless the deposit copies, or information furnished by the applicant, raise questions as to whether publication actual1y has taken place.

II.

Appearance of Copies.

a.

Material submitted as published in Classes A and E will not generally be questioned on the single ground that copies are hand made or in preliminary form (e. g., photostats, mimeographed copies, etc.). Such material may be questioned when the copies contain deletions or insertions, when the deposit copies are not identical, or when the copies appear incomplete.

b.

Material submitted as published is other classes may be questioned if the copies are handmade or are in preliminary form, unless the nature of the work would make publication in that form a normal occurence.

Examples:

(1)

Artist's handmade drawing of a commerical label will be questioned.

(2)

Mimeographed copies of a play would normally not be questioned.

c.

Where the notice on a work has been added by hand, the action to be taken depends upon the nature of the work and other available information.

1.

If the handmade notice is consistent with the nature of the copies, and there is no other reason to question publication, registration is made without correspondence.

2.

In certain cases the rough or tentative nature of the notice may furnish a reason to question whether the work has actually been published.

3.

In appropriate cases the nature of the notice may prompt a search of the correspondence records to determine whether the claim had previously been rejected for publication without statutory notice.

d.

The fact that the copies bear a statement indicating that their distribution has been restricted or limited in some way will not generally be

sufficient cause to question publication.

Examples:

(1)

"Confidential--these specifications are for subscribers' use only"

(2)

"Not for general distribution"

(3)

"For professional use only"

e.

Where the copy of a work submitted for registration in unpublished form bears the prescribed notice and is printed or otherwise susceptible of publication, registration will generally be defer red and the applicant informed of the necessity for making a new registration after publication. If the applicant, after being informed, still desires an unpublished registration, it will not be refused. (See item 3.2.3.1, above.)

f.

Where an application is submitted for a pictorial or graphic work, whether as unpublished or published, and the transmittal letter accompanying the application bears the same work, without notice. as part of the letterhead design, publication with notice will be questioned.

III.

Information Furnished by Applicant. Information volunteered by the applicant or furnished in response to correspondence may contradict the publication statements (or lack of them) in the application.

3.3.2

After rejection for publication without statutory notice.

I.

Resubmission.

a.

Where a claim has been rejected for publication without statutory notice, and the applicant resubmits the material with a good notice but without reference to the earlier rejection, the claim will again be rejected if the new application contains the same date of publication or a date earlier than that of the letter of rejection.

b.

In such cases, where the date of publication has been changed to a date later than that of the rejection letter, the Copyright Office will request an explanation of the second application.

c

Where there has been a previous rejection but the applicant explains that publication had not actually taken place,when the earlier application was submitted, registration will be made following publication with notice.

II.

Unauthorized Publication.

a.

In the rare case in which the applicant alleges that the work (which lacks the statutory notice) was not published "by the copyright proprietor or under his authority," the Copyright Office may consider registration following an "authorized" publication with notice.

b.

Generally, when the copyright proprietor has authorized publication with notice, the mere fact that the person acting under his authority omitted the notice or made an error in it, will not make the publication "unauthorized."

Compendium of US Copyright Office Practices (1973)/Chapter 3

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