1009.4 Date and Nation of First Publication
When completing an application, the applicant – not the U.S. Copyright Office – must determine whether the work is published or unpublished. This may be difficult when the applicant intends to register a website or website content. Often times, the website as a whole may be viewed as an unpublished work, but the particular content that appears on the site may be deemed published if it has been explicitly authorized for distribution (e.g., with a button that enables users to “download” website content, an icon that invites users to “save” website content, or a feature that allows users to transmit content by email or other means).
As a general rule, the Office will accept the applicant’s representation that a work is published or unpublished, unless that statement is implausible or is contradicted by information provided elsewhere in the registration materials or in the Office’s records or by information that is known by the registration specialist.
If the applicant determines that the work has been authorized for distribution to the public, the applicant must identify the date and nation of first publication for that work. In most cases, the date of first publication is the date that the work was posted online with the authorization of the copyright owner.
If the applicant intends to register multiple works and if those works were published on successive dates, the applicant generally should submit a separate application with a separate date of publication for each work. Likewise, separate applications and separate publication dates may be required if the applicant intends to register multiple versions of the same work and if each version was distributed on a different date. Indeed, every work that is added to a website may constitute a derivative work or a contribution to a collective work, and a separate application and separate publication date may be required for each date that new material has been authorized for distribution on that site. In some cases the applicant may need to limit the claim to each individual work that was added to the website on a particular date, while in other cases the applicant may need to exclude previously published material that was distributed on the website on an earlier date.
By contrast, if the applicant determines that the work was placed online solely for the purpose of public display or public performance, the work may be deemed unpublished. An application for an unpublished work may cover all of the copyrightable material contained in the deposit copy(ies) that is owned by the copyright claimant, provided that the material has not been previously published or previously registered with the Office. As discussed in Section 1008.6 (B), it may also be possible to register a number of unpublished works with one application, one filing fee, and one set of deposit copies if the applicant satisfies the requirements for registering the works as a group of unpublished works or unpublished photographs. If the applicant subsequently decides to register unpublished material that was added to the website at a later date, the applicant may seek a new registration for the new material when the copyright owner determines that further protection is desirable.