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01A publication

About This Page

This page contains the following subsections:

01A.1 — tangible form (go there)
01A.2 — fixation (go there)
01A.3 — serials publication (go there)

Where to Look in the Law

1909 Act: Examples of applicable works in §1; “date of publication” defined in §62.
1947 Act: §26 defines “date of publication”
1976 Act: §101, within the definition for “publication”

Copyright Office Publications for Laymen

“The 1976 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.’ An offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display also constitutes publication.
   “The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office.”  (Information Circular 3)

“For works published on or after January 1, 1978: Publication is the distribution anywhere in the world of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication. (17 U.S.C. 101)
   “For works published before January 1, 1978: Publication may be defined as the act of making one or more copies of a work available to the general public, usually by the sale, placing on sale, or the public distribution of one or more copies or sound recordings without express or implied restrictions as to future use. Recordings of musical compositions were not considered copies of the recorded music before January 1, 1978. A distribution of a recording before that date would publish the sound recording but not the music contained on the recording.”  (Information Circular 38b)

What the Courts Ruled


Cardinal Film Corp. vs Beck

D.C.N.Y. (3-1-1918) ¤ 248 F. 368.

Cecil B. DeMille’s long and sumptuous film about the private life of Joan of Arc, Joan the Woman, was a major attraction in 1917.  Infringers argued there was no valid copyright “because there was no publication before the deposit of copies of the motion-picture photoplay in the Office of the Librarian of Congress.”  Here, “no publication was necessary other than the deposit in the Library of Congress.”

The Court noted that Section 62 sets the publication date as “the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor” (emphases made by web editor) and that creating this definition “was an enactment to fix the date from which the copyright term should begin to run, and not a general definition of what should constitute publication.”

Other Information


“‘[P]ublication occurs when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public … .’” Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 945 (2d Cir. 1975) (quoting M. Nimmer, The Law of Copyright, § 49, at 194-95 (1974)).


Cases Summarized in Other Sections

Marx et al vs United States (launch this) concerned plagiarism of an unpublished radio script which was never broadcast with authorization of its authors.  The infringers argued that “publication” had not occurred, but the court ruled that “works not reproduced for sale” could be said to have “limited publication.” 

01A.1 tangible form

Where to Look in the Law

1909 Act: No explicit mention
1947 Act: No explicit mention
1976 Act: §101, within definition of “fixed”

Copyright Office Layman Publications to Read

“[C]horeography [can be put into tangible form by] any dance notation system such as Labanotation, Sutton Movement Shorthand, or Benesh Notation.” [Also, its expression can be submitted on video or film, or in written text or phonorecord description.]  (Fact sheet FL119)

What the Courts Ruled


Roy Export Company Establishment of Vaduz, Liechtenstein, Black, Inc., A.G., Filmverhuurkantoor De Dam B.V., and rbc Films vs Columbia Broadcasting System, Inc.

USDC SDNY (12-17-1980) ¤ 503 F.Supp. 1137

Roy Export Company Establishment of Vaduz, Liechtenstein, Black, Inc., A.G., Filmverhuurkantoor De Dam B.V., and rbc Films vs Columbia Broadcasting System, Inc.

USCA (3-4-1982) ¤ 672 F.2d 1095
Chpln11.gif (3583 bytes)

CBS broadcast a half-hour program about Charlie Chaplin shortly after the great filmmaker/comedian’s death.  CBS drew heavily from a compilation prepared to precede Chaplin’s appearance at the Academy Awards in 1972.  That compilation had been licensed by the owner of the pertinent Chaplin films to be shown only on that one occasion.  No one connected with the Academy Awards nor the network which broadcast that ceremony (NBC) has the right to rebroadcast the compilation, nor had CBS succeeded in any negotiations to license the specific films excerpted in that compilation.

“In 1973, CBS had begun work on its own retrospective program about Chaplin for use at the time of Chaplin’s death… .  CBS repeatedly requested permission to use excerpts from the Chaplin films, but plaintiffs refused, explaining that they themselves were producing the ‘definitive’ Chaplin biography… .”

“On December 25, 1977, Charlie Chaplin died.  Russell Bensley, director of the CBS Special Events Unit, attempted to contact Schneider and Rothman to see if they had changed their minds and would grant CBS permission to use excerpts.  The same day, CBS obtained from NBC a copy of the Compilation which had been shown on the Academy Awards broadcast.  Although CBS was unable to reach Schneider or Rothman, it decided to proceed with a retrospective.  At that time, CBS had two possible versions available for broadcast, one [of which] incorporated, with minor editions [editing], the Compilation as well as other copyrighted material.  Richard Salant, the President of CBS News, made the final decision to use the [Compilation-based] version, 40% of which consisted of plaintiffs’ copyrighted films.  That show was broadcast on December 26, 1977, between 11:30 P.M. and Midnight. (EST).”

The District Court decision notes that “here CBS not only showed Chaplin’s work, but also appropriated the skill and labor of the creators of Compilation, who carefully selected, sequenced and edited the film clips.  The audiovisual news event, if there was one, was Chaplin’s appearance, not the showing of his work, and certainly not the precise artistic means through which his films are showcased (the Compilation).”

The arguments that CBS made to defend its use of the copyrighted films is summarized under fair use, performance is not publication; and news.

CBS argued that the Compilation was not the subject of copyright.  The Court found differently:

“The requirement of tangible form does not mean that intangible skill and thought reflected in the tangible object is not protected.  It establishes only that a mere idea is not copyrightable: only a tangible work is.  For example, in the instant case, if [Peter] Bogdanovitch and his colleagues had merely had the idea of producing a compilation of Chaplin’s scenes with a particular order and timing but had done nothing to realize the idea, CBS’ use of the same order and timing of scenes would not have constituted an infringement of any common law copyright.  However, once that idea had been embodied in tangible form, as it was in the Compilation, then the skill and talent of the producer is entitled to copyright protection…

“The jury reasonably concluded that the Compilation, while consisting of previously copyrighted parts, constituted a new whole.  CBS has cited no case, and we have found none, to support the proposition that the creative arrangement of portions of separately copyrighted works is not copyrightable.  To the contrary, courts have routinely protected such efforts.”  (All quotes are from the District Court decision, which was affirmed by the Appeals Court.)

Other Information


The Compendium of Copyright Office Practices is an internal document used by the Copyright Office to guide Office employees in their work.  The 1984 edition states:

“480.01 To be eligible for copyright protection, a motion picture must be fixed… . A telecast transmission of a live performance is not considered a ‘motion picture.’ However, a motion picture is created when an authorized fixation is made of a live performance or telecast.”  (pg. 400-25)

The item beneath this is 480.02, which states that among the “forms of embodiment” are film, videotape, videodisk.

01A.2 fixation

What the Courts Ruled


Macmillan Co. vs Melaim Lenor King

D.C.Mass. (6-24-1914) ¤ 223 F. 862.

Melaim Lenor King infringed Principles of Economics, a work in 2 volumes, published in 1911.  The Court didn’t accept a defense based on the lack of publication.  “‘Printing’ I must regard as including typewriting or mimeographing, for the purposes of the act,… and he has therefore ‘printed’ them.” Principles of Economics had had a limited publication, as this was the work of a teacher whose mimeographed material went beyond outlines, thus King’s takings were “an appropriation by him of the author’s ideas and language more extensive than the copyright law allows.”


Sterner vs Hearst Corporation, et al

NY Sup.Crt, N.Y.Co. (5-6-1964) ¤ 144 USPQ 237

Family Circle Inc. had a “Party Program Package,” an idea of presentation for a combination of foods and nonfoods.  Sterner contended that it violated his common-law copyright and property right of an “unfinished party program” “conceived in 1948.”  The Court ruled the “words and ideas are in public domain and have not been put into unique concrete form; their copying is not unfair competition.”



01A.3 serials publication

Where to Look in the Law

1909 Act: §3
1947 Act: §3
1976 Act: §408(c)(2) and (3)

“Each volume of a multi-volume book, when published separately, and also each issue of a periodical, is considered an independent publication.”  (Act March 3, 1891, c. 565, § 11, 26 Stat. 1109)

Copyright Office Publications for Laymen

Circular 40

Cases Summarized in Other Sections

Dr. Oliver Wendell Holmes vs George D. Hurst (launch this) involved a book assembled from the installments of a story first published serially in Atlantic Monthly magazine.




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