PUBLICATION

This section poses questions to help the inquirer determine whether the work meets the definition of having been published, as codified within U.S. copyright law.

Determining if there has been publication can mean looking at a fine line

Copies of manuscripts are sometimes offered to friends, colleagues, professionals in the same field, yet such limited distribution does not usually amount to “publication.”

With motion pictures and television, a large number of strangers — potentially the entire population of the United States — can be offered a chance to view a work, and yet the courts have said this amounts to at most “limited publication” rather than full-fledged publication as dealt with in some strict portions of the copyright laws.
 

Consider the following three continuums:

Continuum of publication for a motion picture:

 
Continuum of publication for a television work:

 
Continuum of publication for an artwork (painting, sculpture, etc.):

 
The preceding continuums were created by the copyrightdata.com editor.  These continuums do not have a parallel in the copyright statutes.  Nonetheless, the delineations drawn above are ones that are made in court decisions, in isolated passages of the Copyright Act, and in the writing of a respected scholar of copyright law.

Interpreting the continuums:
The condition in the layer at the top of each of the three continuums is a manifestation of indisputable publication.  A creator whose work has been distributed in the manner outlined must accept that his work has achieved the legal threshold of publication, and such a creator or publisher must accept that he must comply with any applicable registration requirements if copyright protection is to be accorded by law.  On the bottom layer of each of the three continuums is a condition which is indisputably an instance of a work not published.  In such cases, the creator has always been protected by law (if not statutory law, it was common law), limited only by time restrictions imposed in the 1976 Copyright Act which eliminated protection for works still not published decades after the death of the creator.

In the middle layers of the continuums are various gradations between indisputable publication and indisputable lack of publication.  Those closest to the extremes are really just slightly different manifestations of publication and lack of publication which are itemized here only so that readers here can better understand that these conditions are mere variations not worthy of special legal status.

Nearest to the center of each continuum are the indistinct “borderline” cases which have required learned specialists in copyright minutia to discern the legal status.  Some of these conditions have resulted in verdicts that “limited publication” has taken place, with consequent carefully-structured decisions affecting the rights of copyright holders.  Key court decisions in this area are summarized on the “limited publication” Citations and Case Summaries page of this web site.

Unpublished works are given a time limit on copyright eligibility

Why would it be necessary to guarantee that starting 1978 “in no case will copyright in a work of this sort expire before December 31, 2002”?  A simple answer: There were works that had never been published which were created by people who had been dead more than half a century.  A follow-up question: Why be concerned about works that no one was interested enough in publishing even when the works were new and the authors able to promote the works?  An incredible answer: A valuable work could surface worthy of as much legal protection and public attention as contemporary best-sellers. Congress didn’t foresee it in 1976, but in 1990 there was discovered in a forgotten trunk the long-missing half of the original manuscript of The Adventures of Huckleberry Finn by Mark Twain.  This literary classic was shorn of entire chapters prior to publication, and it was now possible to offer readers lengthy passages by the esteemed author which had never before been put into print.  By beating the deadline of December 31, 2002, the expanded version of the book remains in copyright through the end of 2047.  (The text as first published in 1885 remains in the public domain.)

below: title page of an early edition of The Adventures of Huckleberry Finn.   As was the case when this novel was young, a subtitle appeared beneath the main title.  The copy from which this image was duplicated, which is in the collection of the Library of Congress, shows that someone — presumably a Library of Congress employee — wrote behind the name Mark Twain that this name is a pseudonym of Samuel Longhorn Clemens.  (A section on pseudonyms appears on the next illustrations page of this web site.)

The difference between published and unpublished versions of the same work
Using as example a television program

Unpublished Version		Published Version
	When the show was syndicated, the image was cropped so that viewers to a local station would not see the “NBC” on the microphone.
	Viewers to the network broadcast (left) had seen a sponsor’s logo on shots filmed from a particular distance.  Local stations sold  advertising separately from the networks, so the original advertising was not incorporated into the copies delivered to local stations.
	The image at the immediate left helps substantiate that that the sponsor’s logo on the image above left was not built into the backdrop seen behind the people.  The network broadcast (left) and syndicated version (right) were identical insofar as these distant shots were concerned.  (The image at right shows host Groucho Marx removing the exploded innertube from around the head of the man who had inflated it with his lungs (in the image at left).)
	When the series filmed this January 1958 broadcast (see left), the sponsor’s logo was physically part of the background.  The image at right (from syndication) demonstrates how that logo was removed.  The image was cropped to eliminate the top, necessitating removal of picture area at the sides.  Half of the woman went outside the frame.  Notice that the “NBC” on the microphone has been obscurred by light added optically.
At left: the copyright notice which appeared on all Best of Groucho episodes syndicated.  (The year in the notice represents the delay between network broadcast and syndication sale.)  The original broadcasts did not require notice and did not have them.
	Those wanting more demonstration of the differences between versions can look at three images on a supplement page.  Launch supplement page

You’ve seen the illustrations —
You’ve read the captions —
Now read passages from the law
and read what the courts decided.

Read Citations and Case Summaries on:
• Publication (including: tangible form, fixation, serials publication)
• Limited publication (including of movies)
• Performance is not publication

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