Compendium of U.S. Copyright Practices, 3rd Edition

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612.2 What Constitutes Publication?


612.2 What Constitutes Publication?

For purposes of U.S. copyright law, “[p]ublication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 101 (definition of “publication”).


For instance, a book is published when copies of the work are distributed online or in bookstores. A newspaper is distributed when copies are sold at newsstands or delivered to subscribers’ doorsteps. A song is distributed when print copies or phonorecords are sold (e.g., on sheet music or in mp3 format). Software is distributed when copies are distributed by purchase or license, whether in CD-ROM format or online (provided that the copies are actually downloaded and not merely accessed online). On the other hand, a draft dissertation or other manuscript that is sent to a dozen people for peer review with a note stating that the copy should not be shared with other parties is not considered publication.


Likewise, “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” Id. For example, when a motion picture distribution company offers copies of a motion picture to movie theaters for public showing in the theater, the movie is published.


“A public performance or display of a work does not of itself constitute publication.” Id. This is true regardless of the number of people who viewed the performance or display.


As a general rule, the U.S. Copyright Office will accept the applicant’s determination that a work has been published.


For a general discussion of publication and for specific guidance on determining whether a particular work has been published, see Chapter 1900.


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