Re: Delivery for further distribution = publication

The copyright act defines publication as a distribution of copies to the public by sale or other transfer of ownership (e.g., gift). Selling or giving a copy to single person or small group of people is not distributing to "the public."

Offering to distribute copies to a group of people for further distribution is also a publication. So an artist offering a series of postcards to be sold in local gift shops would fall under this rule and would have been deemed to have published the postcards to the public.

So, in general, a photographer selling a series of photos to a publisher would not seem to fall under either definition of publication. The publication would take place when the photos are reproduced and sold in the magazine or whatever.

The reason this is not free from doubt is that when the photos are sold to the publishing house (or newspaper or whatever) they would then be expected to republish at least some of them and so the second part of the definition would seem to be met in spirit. But I think the better argument is that only upon reproduction, on a picture by picture basis in the magazine or newspaper, would each picture then be deemed to be published for purposes of copyright registration.

I've not researched the caselaw on this.

Steve

On Friday, May 21, 2004, at 09:05 AM, _J_e_f_f__S_e_d_l_i_k_ wrote:
> The purpose of my question was to allow me to assist authors in making
> the determination as to whether or not their work has been published
> under the stated circumstances: the work has been delivered to a
> client who will then further distribute the work. The hypothetical
> presented is not related to any existing matter.
>
> While I agree that this determination is relatively less important in
> the post-’78 era, the accurate determination of the publication status
> of a work remains critically important to US authors today. In
> registering a work with the copyright office, an author must register
> the work as either published or unpublished. An author’s ability to
> later seek statutory damages and attorneys fees in the event of an
> infringement is very often directly dependent upon the strength of the
> registration, which is determined in part by the accuracy of the
> information presented on the registration ---  most especially the
> determination as to whether or not the work has been published at or
> prior to the time of registration.

-- 
Prof. Steven D. Jamar                                 vox:  202-806-8017
Howard University School of Law                       fax:  202-806-8428
2900 Van Ness Street NW	                    mailto:sjamar[_at_]law.howard.edu
Washington, DC  20008      http://www.law.howard.edu/faculty/pages/jamar

"God, give us grace to accept with serenity the things that cannot be 
changed, courage to change the things which should be changed, and the 
wisdom to distinguish the one from the other."

Reinhold Neibuhr 1943