Re: [CNI-COPYRIGHT] Publication Question

>>> BMiller[_at_]wbklaw.com 04/01/03 06:29AM >>>
Can anyone answer this question: Is an audio-visual work (contained on video tapes or in a PowerPoint presentation on CD ROM) published if the tapes/CDs are distributed to the sales staff of the copyright owner and the sales staff plays the tapes/CDs in front of prospective customers of the copyright owner? The copyright owner sells financial services and not the tapes/CDs. What if the attendees at the showings pay to attend?
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See 17 U.S.C. 101: A public performance is not itself a publication; however, "the offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." This paradigm to which this clause refers is motion pictures leased to exhibitors for purposes of theatrical release.

The interesting legal question is whether the "group of persons" must be separate entities from the copyright owner, or whether employees of the copyright owner would qualify. In my opinion, if the sales staff are independent contractors, they would certainly be a "group of persons" within the meaning of the statute; but if they are employees of the copyright owner, I don't think that is the situation Congress had in mind. Not a question that is free from doubt, however.

The more important question: why does it matter? Certainly there are provisions in the Copyright Act that depend on publication, but the context in which "publication" is relevant might make a difference.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Fri Apr 04 2003 - 09:42:35 GMT