1905.1 Distribution to the Public
Section 101 of the Copyright Act states a work is published when copies or phonorecords of that work are distributed “to the public.” 17 U.S.C. § 101. Specifically, publication occurs when one or more copies or phonorecords are distributed to a member of the public who is not subject to any express or implied restrictions concerning the disclosure of the content of that work. If a work exists only in one copy – ” such as a painting embodied solely in a canvas – ” the work may be considered published if that copy is distributed to the public with the authorization of the copyright owner. H.R. REP. NO. 94-1476, at 61, 138 (1976), reprinted in 1976 U.S.C.C.A.N. at 5754, 5675 (stating that “[t]he reference to ‘copies and phonorecords,’ although in the plural, are intended . . . to include the singular.”).
• Selling copies of a textbook to a local school board constitutes publication of that work.
• Selling a product with copyrightable artwork on the packaging and label constitutes publication of that artwork.
• Mailing copies of a catalog to potential customers constitutes publication of that catalog and any unpublished works revealed in that work.
• Distributing copies of a leaflet on a street corner constitutes publication of that work.
• Transmitting a copy of an illustration to a client constitutes publication of that work, if the copyright owner authorized the client to use that image and did not impose any restrictions on the client’s ability to disclose that work to the public.
• Giving away copies of a photograph without further restriction constitutes publication of that work.
• Lending, renting, or leasing copies of a work constitutes publication of that work.
• Distributing copies of a motion picture through a retail service constitutes publication of that work.
• Selling the original copy of a painting at an auction.
If an actual distribution has not occurred, the work is considered unpublished. Likewise, a work is considered unpublished if the copies or phonorecords were not distributed to a member of the public, but instead were much more restricted, including an exchange between family members or social acquaintances.
The courts created the doctrine of “limited publication” to distinguish certain distributions from a “general publication” and to avoid the divestive consequences of publication without notice when it was clear the author (or copyright proprietor) restricted both the purpose and the recipients of the distribution. Generally, a limited publication is the distribution of copies of a work to a definitely selected group with a limited purpose and without the right of diffusion, reproduction, distribution, or sale. A limited publication is not considered a distribution to the public and, therefore, is not publication. See White v. Kimmell, 193 F.2d 744, 746-47 (9th Cir. 1952) (explaining that a publication is limited if it “communicates the contents of a [work] to a definitely selected group and for a limited purpose, and without the right of diffusion, reproduction, distribution or sale … [and is] restricted both as to persons and purpose.”).
• Sending copies of a manuscript to prospective publishers in an effort to secure a book contract does not constitute publication (regardless of whether the copies are returned).
• Distributing copies of a research paper that are intended solely for the use of the participants at a seminar generally does not constitute publication if there was no right of further diffusion, reproduction, distribution, or sale by the participants.
• Distributing copies of a speech that are intended solely to assist the press in covering that event has been deemed a limited publication under the Copyright Act of 1909 (i.e., not a publication). However, under the current statutory definition, offering to distribute copies to different news outlets for the purpose of further distribution, public performance, or public display could constitute publication.
Moreover, a work may be considered unpublished if, in addition to communicating a work to a definitely selected group and for a limited purpose, the copyright owner imposed any express or implied restrictions concerning the disclosure of the content of that work, such as placing a statement on the copies or phonorecords indicating that distribution of the work is limited or restricted in some way, such as “Confidential– these specifications are for internal office use only.”