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What is “publication” in terms of copyright?

(Editor’s note: Copyright and all things related are as important to creators of images both moving and still. This guest post by intellectual property attorney, Barry Kaplan gives us all some insights into what copyright law is, where it came from and why it’s important to all of us.)

In some cases, the length of copyright protection (covered in this post) is measured from the date of “publication.”

The concept of publication is so fundamentally important in copyright law, it will be helpful to understand it before we dig into the nuances of the Copyright Act’s statutory scheme of ownership, registration, and enforcement.

What is “publication” of a work?

“Publication” has a specific meaning in copyright law. Whether a work has been published or not has an impact upon the registration requirements for a claim of copyright in a work, in this case, a photograph. As well, whether a work has been published or not will affect the scope and nature of legal action for enforcement of a claim of copyright against an act of infringement. Publication (or not) will also affect the scope and nature of damages and other remedies available under the Copyright Act.

Who decides that a photograph has been published?

The Infinity Mirrors exhibit featured a room where visitors added colored dots to everyday objects. ©2019 Kevin Ames

It is the responsibility of the author and/or copyright owner to make a legally correct, upfront decision regarding whether a work has been “published.” This decision is not made from the point of view of what you and I might think would be a publication according to our common experience; but, rather, it must be made in view of the statutory definition. So, what is that definition?

Defining “publication”

According to § 101 of the Copyright Act:

Publication is the distribution of copies … of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies … [of a work] 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.

Public performance & public display

Of course, things are never quite that easy in complicated statutory frameworks, so we need to understand what the Copyright Act means by the terms, “public performance” and “public display.” Again, we turn to § 101 of the Copyright Act, which provides that,

To perform or display a work “publicly” means:

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

For those of you who wish to investigate these concepts further, please refer to 17 U.S.C. § 101, which can be found here.

Publication occurs as of the date on which copies of the work are first made available to the public. Importantly, the legislative history and evolving case law surrounding the concept of “publication” makes clear that legal publication can only occur by and through acts taken and/or authorized by the copyright owner.

Can a work be displayed and not be “published?”

Pink balloons and black polka dots are one of the rooms in Yayoi Kusama's Infinity Mirrors exhibition. ©2019 Kevin Ames
A visitor experiences one of the rooms in Infinity Mirrors at the High Museum in Atlanta. ©2019 Kevin Ames

Perhaps surprisingly, sometimes a work can, indeed, be performed or displayed without being considered published within the meaning of the Copyright Act. As I’ve noted before, a copyright owner has the legal right to control the terms of use of the work. This means that the answer to this question often comes down to the nature of the restrictions an owner places on how a work can be used, displayed, and further distributed (such as by transmission or other communication).

Under the statutory definition, it should be fairly clear that showing a work to a gathering of family and/or friends in a nonpublic place (or, perhaps, in a space that has been closed to general public access) should not ordinarily count as “publication.”

Less clear, however, might be when the owner grants a specific copyright license to another party, allowing that party to make a limited, specified, private use of the work, and which further limits to whom else the licensee can display and distribute the work. In such a case, even though the third-party may be granted access to and use of the work, the legal context of that access and use has been limited and constrained by the copyright owner in such a way that it can be treated as a non-publication of the work under the Act.

There are land mines

Please note that this question is laden with land mines and pitfalls and that there are many difficult legal aspects of this question that are outside the scope of this article. You should always seek specific advice from a knowledgeable copyright attorney if you are considering granting this kind of license, or if you have any question regarding whether a particular use, display, or distribution of a work may be considered “publication” under the Copyright Act.

The fine print

The information contained in this article does not constitute legal advice, nor does it create an attorney-client relationship between you and the author. You should always seek the informed advice of an attorney before entering into any legal transaction, when ascertaining your own or another’s legal rights and/or responsibilities, and/or when contemplating litigation. Please note that the author may not be licensed to practice law in your jurisdiction; accordingly, nothing contained in this article is intended to be, nor shall be, construed as an offer to provide professional legal services, and especially not to anyone outside of the jurisdiction(s) in which the author is duly licensed to practice.

Read more about copyright as it relates to photography.

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