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Publication 
   
What This Chapter Covers .............................................................................................................................................. 2 
What Constitutes Publication? ..................................................................................................................................... 2 
The Significance of Publication .................................................................................................................................... 3 
General Policies Concerning Publication .................................................................................................................. 4 
1  Applicant Makes the Determination........................................................................................................................... 4 
2  Facts Stated in the Application ..................................................................................................................................... 5 
3  Claim in a Published or Unpublished Work Contradicted by Information Provided Elsewhere, 
such as in the Registration Materials ......................................................................................................................... 5 
Distribution of Copies or Phonorecords of a Work .............................................................................................. 5 
1  Distribution to the Public ............................................................................................................................................... 5 
2  The Means of Distribution .............................................................................................................................................. 7 
3  Deposit for Registration in the U.S. Copyright Office ........................................................................................... 7 
Offering to Distribute Copies or Phonorecords of a Work ................................................................................. 7 
1  Offering to Distribute Copies or Phonorecords to a Group of Persons ......................................................... 8 
2  Offering to Distribute Copies or Phonorecords for the Purpose of Further Distribution,  
Public Performance, or Public Display ...................................................................................................................... 9 
3  The Copies or Phonorecords Must Be in Existence .............................................................................................. 9 
Distributing the Work vs. An Offer to Distribute the Work ............................................................................ 10 
A Public Performance or Public Display Does Not Constitute Publication ............................................... 10 
1  Performing a Work of Authorship ............................................................................................................................ 11 
2  Displaying a Work of Authorship ............................................................................................................................. 11 
3  Public Performances and Public Displays ............................................................................................................. 11 
4  Private Performances and Private Displays ......................................................................................................... 13 
Specific Forms of Publication ..................................................................................................................................... 13 
1  Unpublished Work Embodied in a Published Work.......................................................................................... 13 
2  Publishing a Portion of a Work.................................................................................................................................. 13 
3  Publishing Separate Parts or Installments of a Work ....................................................................................... 14 
4  Works First Published Outside the United States .............................................................................................. 14 

 
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  1901  What This Chapter Covers 
This Chapter provides a definition and discussion of publication for works created or 
first published on or after January 1, 1978.  
N O T E : This Chapter does not discuss works first published before January 1, 1978. For 
information concerning these types of works, see Chapter 2100. Additionally, this 
Chapter does not discuss publication issues that are unique to architectural works or 
online works. For publication issues relating to these types of works, see Chapter 900, 
Section 926.3 and Chapter 1000, Section 1008.3. 
For a discussion of the specific practices and procedures for registering a claim to 
copyright in a published or unpublished work, see the following Chapters: 
•  For a general overview of the registration process, see Chapter 200. 
•  For guidance in determining who may file an application and who may be named as 
the copyright claimant, see Chapter 400. 
•  For a general overview of the applications that may be used to register a copyright 
claim, see Chapter 1400. 
•  For information on how to complete an application, see Chapter 600. For guidance 
in providing a date of first publication and identifying the nation of first publication 
in the application, see Chapter 600, Section 612. 
•  For information concerning the notice requirements for U.S. works published in 
copies or phonorecords between January 1, 1978 and February 28, 1989, see 
Chapter 2200. 
  1902  What Constitutes Publication?  
Section 101 of the Copyright Act defines publication as “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. It 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.” Id. It also explains that “[a] 
public performance or display of a work does not of itself constitute publication.” Id. 
The legislative history explains that “a work is ‘published’ if one or more copies or 
phonorecords embodying [the work] are distributed to the public” with “no explicit or 
implicit restrictions with respect to [the] disclosure of [the] contents [of that work].” 
H.R. REP. NO. 94-1476, at 138 (1976), reprinted in 1976 U.S.C.C.A.N. at 5754. It also 
explains that publication occurs “when copies or phonorecords are offered to a group of 

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wholesalers, broadcasters, motion picture theatres, etc.” for the purpose of “further 
distribution, public performance, or public display.” Id.  
Although it is not expressly stated in the statutory definition, the legislative history 
indicates that publication occurs only (i) when copies or phonorecords are distributed 
by or with the authority of the copyright owner, or (ii) when an offer to distribute copies 
or phonorecords to a group of persons for further distribution, public performance, or 
public display is made by or with the authority of the copyright owner. For a definition 
and discussion of the terms “copies” and “phonorecords,” see Chapter 300, Section 305. 
Offering to distribute copies or phonorecords to a group of persons for further 
distribution, public performance, or public display without authorization does not 
constitute publication. Likewise, an unauthorized distribution of copies or 
phonorecords does not constitute publication. Instead it generally constitutes copyright 
infringement. See H.R. REP. NO. 94-1476, at 62 (1976), reprinted in 1976 U.S.C.C.A.N. at 
5675-76 (explaining that Section 106(3) of the Copyright Act gives copyright owners 
“the right to control the first public distribution of an authorized copy or phonorecord of 
[the] work, whether by sale, gift, loan, or some rental or lease arrangement”).  
  1903  The Significance of Publication  
Publication is an important concept for works created or first published after January 1, 
1978 for a number of reasons:  
•  If the work has been published, the date and nation of first publication should be 
provided in the application to register that work with the U.S. Copyright Office. See 
17 U.S.C. § 409(8). For guidance in completing this portion of the application, see 
Chapter 600, Sections 612 and 617. 
•  The deposit requirements for registering a published work differ from the 
requirements for registering an unpublished work. For information concerning 
these requirements, see Chapter 1500, Sections 1503 and 1505. 
•  Works first published in the United States may be subject to mandatory deposit with 
the Library of Congress. For information concerning the mandatory deposit 
requirements, see Chapter 1500, Section 1511. 
•  The year of publication may determine the length of the copyright term for a work 
made for hire. For a definition and discussion of works made for hire, see Chapter 
500, Section 506.  
•  The year of publication may determine the length of the copyright term for an 
anonymous work or a pseudonymous work, unless the author’s identity is revealed 
in records maintained by the U.S. Copyright Office. For a definition and discussion of 
anonymous works and pseudonymous works, see Chapter 600, Sections 615.1 and 
615.2. 

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•  The year of publication may determine the length of the copyright term if the work 
was created before January 1, 1978, and was first published between January 1, 
1978 and January 1, 2003. See 17 U.S.C. § 303(a). 
•  A certificate of registration constitutes prima facie evidence of the validity of the 
copyright and the facts stated in the certificate of registration, provided that the 
work is registered before or within five years after the work is first published. 17 
U.S.C. § 410(c). 
•  The copyright owner may be entitled to claim statutory damages and attorney’s fees 
in an infringement lawsuit, provided that the work was registered before the 
infringement began or within three months after the first publication of the work. 
See 17 U.S.C. §§ 412, 504(c), 505. 
•  Many of the exceptions and limitations set forth in Sections 107 through 122 of the 
Copyright Act may be impacted depending on whether the work is published or 
unpublished. See, e.g., 17 U.S.C. §§ 107, 108, 115, 118, and 121. 
•  As a general rule, U.S. works first published in the United States before March 1, 
1989 must be published with a valid copyright notice. Failing to include a valid 
notice on a U.S. work published during this period may invalidate the copyright in 
that work. For a detailed discussion of these notice requirements, see Chapter 2200, 
Sections 2203 through 2207. 
  1904  General Policies Concerning Publication   
This Section discusses the U.S. Copyright Office’s general practices and procedures for 
examining published and unpublished works. 
  1904.1  Applicant Makes the Determination  
The applicant—not the U.S. Copyright Office—must determine whether a work is 
published or unpublished.  
The U.S. Copyright Act is the exclusive source of copyright protection in the United 
States, and all applicants — both foreign and domestic — must demonstrate that a work 
satisfies the requirements of U.S. copyright law to register a work with the Office. 
Determining whether a work is published or unpublished should be based on U.S. 
copyright law under Title 17, and it should be based on the facts that exist at the time 
the application is filed with the Office, even if the work was created in a foreign country, 
first published in a foreign country, or created by a citizen, domiciliary, or habitual 
resident of a foreign country. 
Upon request, the Office will provide the applicant with general information about the 
provisions of the Copyright Act, including the statutory definition of publication, and 
will explain the relevant practices and procedures for registering a published or 
unpublished work with the Office. The Office will not give specific legal advice on 
whether a particular work has or has not been published. However, if an assertion is 
clearly contrary to facts known by the Office, a claim may be questioned, or in certain 
situations, refused.  

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  1904.2  Facts Stated in the Application  
As a general rule, the U.S. Copyright Office will not conduct its own factual investigation 
to determine whether a work is published or unpublished or to confirm the truth of the 
statements made in the application concerning publication.  
Ordinarily, the Office will accept the facts stated in the application, unless they are 
implausible or conflict with information provided elsewhere in the registration materials, 
the Office’s records, or other sources of information that are known by the Office.  
  1904.3  Claim in a Published or Unpublished Work Contradicted by Information 
Provided Elsewhere, such as in the Registration Materials  
As a general rule, if the applicant affirmatively states that the work is unpublished or 
fails to provide a date of first publication in the application, the Office will register the 
work as an unpublished work, unless the information provided in the deposit copy or in 
other sources of information known by the Office clearly indicate that the work has been 
published.  
Likewise, if the applicant affirmatively states that the work has been published and 
provides a date of first publication in the application, the Office generally will register 
the work as a published work, unless information provided in the deposit copies or in 
other sources of information known by the Office clearly suggest that the work is 
unpublished.  
If the deposit copy(ies) or other information known by the Office clearly suggest that the 
work is published or unpublished and if it appears that the applicant provided or failed 
to provide a date of publication by mistake, the registration specialist may communicate 
with the applicant. For examples of situations that may prompt a communication 
concerning publication, see Chapter 600, Sections 612.7(A) and 612.7(B). 
  1905  Distribution of Copies or Phonorecords of a Work  
As discussed in Section 1902, publication occurs when one or more copies or 
phonorecords of a work are distributed to the public by or with the authority of the 
copyright owner. These issues are discussed in Sections 1905.1 through 1905.3 below. 
  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.”). 

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Examples:

• 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.”).

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Examples: 
•  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.” 
  1905.2  The Means of Distribution  
As discussed in Section 1902, publication occurs when copies or phonorecords are 
distributed to the public by means of a sale or other transfer of ownership, such as 
giving copies away. Likewise, publication occurs when copies or phonorecords are 
distributed by means of rental, lease, or lending (i.e., where the copies or phonorecords 
change hands, but there is no change in the ownership of those copies or phonorecords). 
Distributing copies or phonorecords by any other means does not constitute 
publication. In particular, the legislative history states that “any form or dissemination 
in which a material object does not change hands... is not a publication no matter how 
many people are exposed to the work.” H.R. REP. NO. 94-1476, at 138 (1976), reprinted in 
1976 U.S.C.C.A.N. at 5754. 
  1905.3  Deposit for Registration in the U.S. Copyright Office  
Depositing unpublished copies or phonorecords with the U.S. Copyright Office for the 
purpose of registering a claim to copyright does not constitute publication.  
  1906  Offering to Distribute Copies or Phonorecords of a Work  
As discussed in Section 1902, offering to distribute copies or phonorecords to a group of 
persons for the purpose of further distribution, public performance, or public display 
constitutes publication, provided that the offer is made by or with the authority of the 
copyright owner. These issues are discussed in Sections 1906.1 through 1906.3 below. 

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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.

Examples:

• 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.

Examples:

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• 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.

1906.2 Offering to Distribute Copies or Phonorecords for the Purpose of

Further Distribution, Public Performance, or Public Display

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. In other words,

the copies or phonorecords must be offered to a group of persons for one or more of the

purposes listed in the statute. Publication does not occur when copies or phonorecords

are offered for any other purpose, such as offering them to a group of persons for

private use, private performance, or private display.

1906.3 The Copies or Phonorecords Must Be in Existence

The statutory definition indicates that offering to distribute copies or phonorecords

constitutes publication, provided that the copies or phonorecords exist when the offer is

made. Offering to distribute copies or phonorecords before they exist or before they are

ready for further distribution, public performance, or public display does not constitute

publication.

Examples:

• Offering a new line of toys to a group of retailers constitutes

publication, provided that the toys are available for distribution

when the offer is made.

• Offering prints of a motion picture to a group of theater owners

constitutes publication, provided that the prints are available for

public performance when the offer is made.

• Offering a cartoon to a group of syndicators constitutes publication,

provided that the work is available for distribution when the offer is

made.

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•  Offering to distribute a motion picture that is currently in 
production does not constitute publication. 
•  Offering to distribute a sound recording that has not been fixed in 
its final form does not constitute publication. 
  1907  Distributing the Work vs. An Offer to Distribute the Work   
The statute states that a work is published when copies or phonorecords are distributed 
to the public. It also states that offering to distribute copies or phonorecords to a group 
of persons for the purpose of further distribution, public performance, or public display 
constitutes publication. See 17 U.S.C. § 101 (definition of “publication”). In other words, 
publication occurs when either of these conditions has been met. 
Examples: 
•  Distributing copies of a photograph to the public constitutes 
publication (even if the copies were offered solely for private 
display). 
•  Offering to distribute copies of a lithograph to a number of galleries 
for the purpose of public display constitutes publication, but 
offering the same copies to a group of individuals solely for private 
display does not. 
  1908  A Public Performance or Public Display Does Not Constitute Publication   
As discussed in Section 1902, a public performance or a public display of a work “does 
not of itself constitute publication.” 17 U.S.C. § 101 (definition of “publication”). 
Therefore, if the applicant provides a date of publication in the application and indicates 
that the work was performed, televised, broadcast, displayed, or exhibited on that date, 
the registration specialist may communicate with the applicant and explain that merely 
performing or displaying a work in public does not constitute publication under U.S. 
copyright law, “no matter how many people are exposed to the work.” H.R. REP. NO. 94-
1476, at 138 (1976), reprinted in 1976 U.S.C.C.A.N. at 5754. 
Examples of performances and displays that do not in themselves constitute publication 
include the following: 
•  Performing a song at a concert or on television or radio, regardless 
of the size of the audience. 
•  Showing a motion picture in a theater or on television. 
•  Performing a play, a pantomime, or a choreographic work in a 
theater. 
•  Delivering a speech, lecture, or sermon at a public event. 

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•  Displaying a painting in a museum, a gallery, or the lobby of a 
building (regardless of whether the copyright owner prohibited 
others from taking photographs or other reproductions of that 
work). 
•  Displaying a fabric design, wallpaper design, or textile design in a 
store front. 
  1908.1  Performing a Work of Authorship  
Section 101 of the Copyright Act states that performing a work of authorship means “to 
recite, render, play, dance, or act [the work], either directly or by means of any device or 
process or, in the case of a motion picture or other audiovisual work, to show its images 
in any sequence or to make the sounds accompanying it audible.” 17 U.S.C. § 101. 
Reading a literary work aloud, singing or playing music, dancing a ballet or other 
choreographic work, or acting out a dramatic work or pantomime clearly falls within the 
scope of this definition. Likewise, showing portions of a motion picture, filmstrip, or 
slide presentation in sequential order or playing a motion picture sound track clearly 
qualifies as a performance of that work. See H.R. REP. NO. 94-1476, at 63-64 (1976), 
reprinted in 1976 U.S.C.C.A.N. at 5677. 
  1908.2  Displaying a Work of Authorship  
Section 101 of the Copyright Act states that displaying a work of authorship means “to 
show a copy of [the work], either directly or by means of a film, slide, television image, 
or any other device or process or, in the case of a motion picture or other audiovisual 
work, to show individual images nonsequentially.” 17 U.S.C. § 101. For example, 
displaying a painting in a gallery, posting a photograph on a billboard, placing an 
advertisement in a store front, or projecting a drawing onto a screen or other surface 
falls within the scope of this definition. See H.R. REP. NO. 94-1476, at 64 (1976), reprinted 
in 1976 U.S.C.C.A.N. at 5677. 
  1908.3  Public Performances and Public Displays  
Section 101 of the Copyright Act states that performing or displaying a work “publicly” 
means: 
•  “[T]o 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” 
•  “[T]o transmit or otherwise communicate a performance or display of the work to a 
place specified [in the preceding paragraph] 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.” 
17 U.S.C. § 101.  

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Although the statute does not define the term “public,” it “suggests that ‘the public’

consists of a large group of people outside of a family and friends,” such as “a large

number of people who are unrelated and unknown to each other.” American

Broadcasting Companies, Inc. v. Aereo, Inc., 134 S. Ct. 2498, 2509-10 (U.S. 2014).

The legislative history explains that a performance or display constitutes a public

performance or a public display if it occurs “in a public place.” It also explains that a

performance or display that occurs in a “semipublic” place, such as a club, lodge, factory,

summer camp, or school, is considered a public performance or display. H.R. REP. NO. 94-

1476, at 64 (1976), reprinted in 1976 U.S.C.C.A.N. at 5677-78.

By contrast, a performance or display that occurs at “a gathering confined to [an]

individual’s social acquaintances would normally be regarded as private.” Id. A

performance or display that occurs during “[r]outine meetings of businesses and

governmental personnel” would be normally considered private “because they do not

represent the gathering of a ‘substantial number of persons.’” Id., reprinted in 1976

U.S.C.C.A.N. at 5678. Likewise, “an entity does not transmit [a work] to the public if it

does not transmit to a substantial number of people outside of a family and its social

circle.” American Broadcasting Companies, 134 S. Ct. at 2511.

The legislative history further explains that a public performance or a display includes

“the initial rendition or showing” of a work, as well as “any further act by which that

rendition or showing is transmitted or communicated to the public.” H.R. REP. NO. 94-

1476, at 63, reprinted in 1976 U.S.C.C.A.N. at 5676. “[F]or example, a sing[er] is

performing when he or she sings a song; a broadcasting network is performing when it

transmits [that] performance (whether simultaneously or from records); a local

broadcaster is performing when it transmits the network broadcast; a cable television

system is performing when it retransmits the broadcast to its subscribers; and any

individual is performing whenever he or she plays a phonorecord embodying the

performance or communicates the performance by turning on a receiving set.” Id.,

reprinted in 1976 U.S.C.C.A.N. at 5676-77.

A performance or display that is transmitted to the public is considered a public

performance or a public display “even though the recipients are not gathered in a single

place, and even if there is no proof that any of the potential recipients was operating his

receiving apparatus at the time of the transmission.” Id. at 64-65, reprinted in 1976

U.S.C.C.A.N. at 5678. “In other words, ‘the public’ need not be situated together, spatially

or temporally” for a public performance or public display to occur. American

Broadcasting Companies, 134 S. Ct. at 2510.

Moreover, “when an entity communicates the same contemporaneously perceptible

images and sounds to multiple people, it transmits a performance to them regardless of

the number of discrete communications it makes.” Id. at 2509. For instance, when an

entity “streams the same television program to multiple subscribers, it ‘transmit[s]… a

performance’ to all of them,” regardless of whether the entity makes the transmission

“from the same or separate copies” or from “user-specific copies.” Id. (quoting 17 U.S.C. §

101 (definition of “perform or display a work ‘publicly’”)).

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1908.4 Private Performances and Private Displays

Section 101 of the Copyright Act expressly states that a public performance or a public

display “does not of itself constitute publication.” 17 U.S.C. § 101 (definition of

“publication”). Therefore, a private performance or a private display in and of itself does

not constitute publication.

1909 Specific Forms of Publication

1909.1 Unpublished Work Embodied in a Published Work

An unpublished work is considered published when it is embodied in another work of

authorship that has been published, but only to the extent that the unpublished work is

disclosed in the published work.

Examples:

• When an unpublished screenplay is used in the creation of a motion

picture, the elements of that screenplay that appear in the motion

picture are published when (i) copies of the motion picture are

distributed to the public, or (ii) when copies of the motion picture

are offered to a group of persons for further distribution, public

performance, or public display.

• When an unpublished musical work is incorporated in a distributed

sound recording, the elements of that work that are incorporated

into the sound recording are published when (i) copies of the sound

recording are distributed to the public, or (ii) when copies of the

sound recording are offered to a group of persons for further

distribution, public performance, or public display.

• When an unpublished painting is reproduced in a book, the

elements of the painting that appear in the book are published when

(i) copies of the book are distributed to the public, or (ii) when

copies of the book are offered to a group of persons for further

distribution, public performance, or public display.

• When an unpublished sculpture is featured in a motion picture, the

publication of the motion picture may publish the sculpture if the

motion picture discloses a sufficient amount of three-dimensional

authorship to effectuate a publication of a sculptural work.

1909.2 Publishing a Portion of a Work

Publishing a portion of a work does not necessarily mean that the work as a whole has

been published. As a general rule, publication applies only to the specific portions of the

work that have been distributed to the public or offered for distribution to a group of

persons for the purpose of further distribution, public performance, or public display.

Examples:

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• Publishing a detailed summary of a novel does not publish the novel

as a whole.

• Publishing a treatment or synopsis of a motion picture does not

publish the motion picture as a whole.

• Publishing a motion picture that is based on an unpublished

manuscript publishes the elements of the manuscript that are

embodied in the motion picture, but it does not publish the

manuscript as a whole.

1909.3 Publishing Separate Parts or Installments of a Work

When various parts or installments of a work are published separately, each part or

installment is considered a separate work. As a general rule, an applicant should

prepare a separate application, filing fee, and deposit for each part or installment of a

work if those parts or installments were published separately. If the various parts or

installments were published on different dates, the applicant should provide a separate

date of publication for each part or installment.

N O T E : To avoid the need for filing multiple applications, applicants are encouraged to

work are published.

For a general discussion of the practices and procedures for registering multiple

versions of the same work, see Chapter 500, Section 512.

1909.4 Works First Published Outside the United States

When a work is published in a foreign country and then subsequently published in the

United States, the publication in the foreign country is considered the first publication of

that work. When submitting an application to register the work the applicant should

provide the date that the work was first published in the foreign country and should

submit a copy or phonorecord of the foreign edition. Registering a claim in the U.S.

edition may be permissible, provided that the work contains a sufficient amount of new

material that did not appear in the work when it was published abroad.