Re: publication

On 03/24/2000, Robert A. Baron <rabaron[_at_]pipeline.com> wrote:
>
> This brings up another topic. How do works of art and other items
> created in single or perhaps even multiple copies qualify as having
> been "published" for the purposes of starting the copyright clock?
> Here are a few scenarios:
>
> 1) A photographer produces a limited edition of 10 images of the same
> work. He distributes two copies to friends and exhibits another in
> a museum exhibition (where it is not for sale) but from which the
> photographer expects to find buyers. None are sold. Does any part
> of this scenario qualify as a publication? Exhibition alone doesn't
> do it. Offering it for sale doesn't do it and giving it to friends
> also doesn't qualify, it seems.

Offering a work for sale to the general public IS considered a publication under the 1909 Act, even if no copies were actually sold; and I think it would be held to be a publication under the 1976 Act as well. You are correct that public exhibition alone is not a publication under the 1976 Act; and probably also under the 1909 Act (although there is some contrary case law). Giving it to two friends probably would be considered a "limited publication," but it might not; it has to be for a limited purpose as well as to a limited group.

> 2) A vendor of art slides offers images of the Statue of Liberty in
> his catalogue. He doesn't sell any and hasn't reproduced the image
> in a catalogue. This, I gather, doesn't qualify as a publication
> either.

Again, the offering for sale of a copyrighted work may be a publication. If one could prove which work was being offered (since there is no reproduction in the catalog, it might be ambiguous), I think this could qualify as a publication.

> 3) Same as above, but the image is acquired by numerious users. In the
> bill we learn that the image is not sold; it is licensed, say, for
> five years. Does the distribution of licensed copies qualify as a
> publication?

Yes. The definition includes "the distribution of copies ... of a work to the public by sale or other transfer of ownership, OR by rental, lease or lending." Licensing will satisfy this definition.

> 4) A vendor produces a thumbnail catalogue of his image wares that he
> places on the Internet. Ordinarily I would think of this as a
> publication; but now considering the outcome of the ditto.com case,
> where the publication of a thumbnail by someone else was not
> considered to be an infringement by virtue of fair use, one wonders
> if presentation of one's own thumbnail image qualifies as a
> publication of the image as a whole.

The court held that the thumbnail was fair use; not that it was not a reproduction or distribution. If an authorized distribution of "copies" to the public has occurred, there has been a publication, regardless of whether the distribution would have been fair use if it had not been authorized.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Fri Mar 31 2000 - 23:51:11 GMT