1906.1 Offering to Distribute Copies or Phonorecords to a Group of Persons
Section 101 of the Copyright Act states that “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.” 17 U.S.C. § 101. Specifically, publication occurs when one or more copies or phonorecords are offered to wholesalers, retailers, broadcasters, aggregators, or similar intermediaries for the purpose of distributing the work to the public or for the purpose of publicly performing or publicly displaying the work. If a work exists only in one copy, the work may be considered published if that copy is offered to a group of persons 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.
• Publication occurs when a motion picture is offered to a group of movie theaters or television networks for the purpose of exhibiting or broadcasting that work.
• Publication occurs when copies of a greeting card are offered to retailers for the purpose of selling those copies to the public.
• Publication occurs when copies of a photograph are offered to clients, including but not limited to newspapers, magazines, agencies, wire services, and websites with a license permitting further distribution or display of the photograph.
• Publication occurs when phonorecords are offered radio stations for the purpose of broadcasting the songs and sound recordings embodied therein.
• Publication occurs when copies of a song are offered to a group of band directors for the purpose of performing that work at athletic events.
• Publication occurs when fabric, carpet, or wallpaper samples are offered to sales representatives for the purpose of selling those works to wholesalers and retailers.
• Publication occurs when the original copy of a statue is offered to a group of museums for the purpose of publicly displaying the work.
Offering a work directly to the public constitutes publication where the offeror has completed all the steps necessary for distribution to the public, such that the only further action required is an offeree’s action in obtaining a copy or phonorecord. By contrast, offering a work directly to the public does not constitute publication where distribution of copies or phonorecords requires additional action by the offeror.
• If an author places copies of their new short story in a library book exchange box at the end of their driveway this constitutes publication of that short story.
• An online advertisement that offers to sell an ebook to the public, but does not make the ebook available for download, does not constitute publication of that ebook.
• An offer by the copyright owner on a public website to purchase and download an app that they developed and made accessible on that website constitutes publication of that app.
• An advertisement containing pictures of a jewelry design constitutes publication of that work, but an advertisement that merely contains a textual description of that design does not.