Copyright publication: An empirical study

Notre Dame Law Review

Volumn 87, Issue 1, 2011, Pages 135-204

  Gerhardt, Deborah R ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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EID: 84856274047     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (253)

1. Martin Luther King, Jr., I Have a Dream, Keynote Address at the March on Washington for Jobs and Freedom (Aug. 28, 1963)
2. reprinted in DREW D. HANSEN, THE DREAM 71-85 (2005).
3. See Barbara Wolff, "I Have a Dream" Leads Top 100 Speeches of the Century, U. WIS.-MADISON (Dec. 15, 1999), http://www.news.wisc.edu/releases/ 3504.html.
4. See King v. Mister Maestro, Inc., 224 F. Supp. 101, 104 (S. D. N. Y. 1963) ("The New York Post in its issue of September 1, 1963 published the complete text of the speech under the title 'I Have A Dream....' The Post thereafter offered for sale reprints of the speech. Dr. King says that he has not consented in any way to such reprinting and sale of the speech and did not give to the Post any copy of his speech.").
5. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 13 F. Supp. 2d 1347, 1348 n. 1 (N. D. Ga. 1998) ("King's speech was broadcast live to millions.")
6. rev'd, 194 F.3d 1211 (11th Cir. 1999).
7. Full video of the "I Have a Dream" speech, YOUTUBE, http://www.youtube.com/watch?v=B3P6N9g-dQg (last visited Sept. 13, 2011).
8. See Jane C. Ginsburg, The U. S. Experience with Mandatory Copyright Formalities, 33 COLUM. J. L. & ARTS 311, 323, 328 (2010) ("[T]he legal norm became increasingly incoherent and unpredictable.... 'Unpublished'... did not mean unexploited or undivulged.... Without a coherent concept of 'publication' under the 1909 Act, a number of rather arbitrary distinctions emerged.").
9. See 17 U. S. C § 405 (2006);
10. U. S. C § 10 (repealed 1976).
11. See King v. Mister Maestro, Inc., 224 F. Supp. 101 (S. D. N. Y. 1963).
12. See TAYLOR BRANCH, PARTING THE WATERS 881 (1988).
13. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 13 F. Supp. 2d 1347, 1349 (N. D. Ga. 1998)
14. rev'd, 194 F.3d 1211 (11th Cir. 1999).
15. See Estate of Martin Luther King, Jr., 194 F.3d at 1216-17.
16. See David Firestone, King Estate and CBS Settle Suit Over Rights to Famous Speech, N. Y. TIMES, July 14, 2000, at A12.
17. See 17 U. S. C. §§ 302-304 (2006);
18. MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 4.01 [B], at 4-6 (2011).
19. See, e.g., JAMES BOYLE, THE PUBLIC DOMAIN 38-39 (2009) (offering "working definitions" of the public domain).
20. See Werckmeister v. Am. Lithographic Co., 134 F. 321, 324 (2d Cir. 1904) ("Publication of a subject of copyright is effected by its communication or dedication to the public. Such a publication is what is known as a 'general publication. ' There may be also a 'limited publication. ' The use of the word 'publication' in these two senses is unfortunate and has led to much confusion. ");
21. Thomas F. Cotter, Toward a Functional Definition of Publication in Copyright Law, 92 MINN. L. REV. 1724, 1770 (2008) ("[T]he meaning of publication remains, in many circumstances, fuzzy").
22. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999);
23. King v. Mister Maestro, 224 F. Supp. 101 (S. D. N. Y. 1963).
24. See, e.g., Pierce & Bushnell Mfg. v. Werckmeister, 72 F. 54, 58-59 (1st Cir. 1896) (holding that display of an original painting in Munich without a copyright notice resulted in publication);
25. Scherr v. Universal Match Corp., 297 F. Supp. 107, 112 (S. D. N. Y. 1967) (holding that public display of sculpture "The Ultimate Weapon" without clearly visible notice (appearing twenty-two feet off the ground on the back of a soldier) or restrictions on copying resulted in divestive publication).
26. See SUSAN M. BIELSTEIN, PERMISSIONS, A SURVIVAL GUIDE (2006).
27. Kay L. Levine, The Law Is Not the Case: Incorporating Empirical Methods into the Culture of Case Analysis, 17 U. FLA. J. L. & PUB. POL'Y 283, 284 (2006).
28. See S. REP. NO. 94-473, at 113 (1975)
29. WILLIAM F. PATRY, PATRY ON COPYRIGHT § 6.30-6.73 (2006);
30. Melville B. Nimmer, Copyright Publication, 56 COLUM. L. REV. 185 (1956);
31. R. Anthony Reese, Public but Private: Copyright's New Unpublished Public Domain, 85 TEX. L. REV. 585 (2007).
32. In the Copyright Act of 1790, the initial copyright term lasted "for the term of fourteen years from the recording the title thereof in the clerk's office." Act of May 31, 1790, ch. 15, § 1, 1 Stat. 124, 124 (repealed 1831). Published works were to be filed with the clerk's office before copyright protection would attach, and for unpublished works, a deposit was required before the work was published.
33. Stat. at 125. A copy of the work was to be sent to the Secretary of State "within six months after the publishing thereof...."
34. Stat. at 125 (emphasis added). Under the Act of 1790, both previously published and unpublished works could be protected by copyright.
35. Stat. at 125. In 1802, notice of the claim to copyright was also required to appear on the work.
36. See Act of Apr. 29, 1802, ch. 26, §1, 2 Stat. 171, 171 (repealed 1831). In 1831, Congress continued to provide that the copyright term began at recordation.
37. See Act of Feb. 3, 1831, ch. 16, §1, 4 Stat. 436, 436 (repealed 1870). However, it provided that "no person shall be entitled to the benefit of this act, unless he shall, before publication, deposit a printed copy of the title of [the work]... in the clerk's office of the district court of the district wherein the author or proprietor shall reside...."
38. Stat. at 437 (emphasis added). In the 1870 and 1891 Acts, publication and deposit determined whether a work was entided to copyright protection. In 1870, Congress made it clear that "no person shall be entitled to a copyright unless he shall, before publication, deposit in the mail a printed copy of the tide of the [work]... addressed to the librarian of Congress, and, within ten days from the publication thereof, deposit in the mail two copies of such [work]... to said librarian of Congress."
39. Act of July 8, 1870, ch. 230, § 90, 16 Stat. 198, 213 (repealed 1909) (emphasis added). The Copyright Act of 1891 provided that "[n]o person shall be entided to a copyright unless he shall, on or before the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail... a printed copy of the tide of the [work]... [and] two copies of such [work]...."
40. Act of Mar. 3, 1891, ch. 565, § 4956, 26 Stat. 1106, 1107 (repealed 1909) (emphasis added).
41. See Act of Mar. 4, 1909, ch. 320, § 23, 35 Stat. 1075, 1080 (repealed 1976) ("[T]he copyright secured by this Act shall endure for twenty-eight years from the date of first publication....") (emphasis added);
42. see also Edward Lee, Freedom of the Press 2.0, 42 GA. L. REV. 309, 352 & n. 251 (2008) (discussing manufacturing requirements for effective publishing).
43. See § 9, 35 Stat. at 1077 (providing "[a]ny person entided thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act; and such notice shall be affixed to each copy thereof published or offered for sale in the United States by authority of the copyright proprietor").
44. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U. S. 539 (1985).
45. See 17 U. S. C. §§ 102 (a), 301 (a) (2006).
46. See 17 U. S. C. § 301 (a).
47. See King v. Mister Maestro, 224 F. Supp. 101, 104-05 (S. D. N. Y. 1963)
48. ("The claim to copyright was under 17 U. S. C. § 12, 'works not reproduced for sale'-unpublished works.").
49. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 13 F. Supp. 2d 1347, 1349 (N. D. Ga. 1998).
50. The relevant section of 17 U. S. C. § 304 (a) provides: (1) (A) Any copyright, the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured. (B) In the case of-(i) any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or (ii) any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of 67 years. (C) In the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work-(i) the author of such work, if the author is still living, (ii) the widow, widower, or children of the author, if the author is not living, (iii) the author's executors, if such author, widow, widower, or children are not living, or (iv) the author's next of kin, in the absence of a will of the author, shall be entitled to a renewal and extension of the copyright in such work for a further term of 67 years.
51. U. S. C. § 304 (a).
52. I Have a Dream, WIKIPEDIA, http://en. wikipedia.org/wiki/I-Have-a-Dream (last visited Sept. 13, 2011).
53. See King v. Mister Maestro, Inc., 224 F. Supp. 101, 104 (S. D. N. Y. 1963).
54. See 17 U. S. C. § 304 (a).
55. 17 U. S. C. § 107 (2).
56. 471 U. S. 539 (1985).
57. But see Barton Beebe, An Empirical Study of U. S. Copyright Fair Use Opinions, 1978-2005, 156 U. PA. L. REV. 549, 613 (2008) (finding that although the unpublished nature can sometimes be dispositive in fair use cases, the unpublished nature of a work "exert[s] no significant effect on the outcome of the fair use test, but the fact that the plaintiff's work was published appears to have exerted a strong effect on the outcome of the test in favor of a finding of fair use").
58. See 17 U. S. C. § 409 (8).
59. C. F. R. § 202.20 (c) (1), (2) (2010).
60. However, one copy may be sufficient if the work was "first published outside the United States." 17 U. S. C. § 408 (b) (3).
61. See 37 C. F. R. § 202.20 (c) (2) (iv).
62. See 17 U. S. C. § 411 (b);
63. Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1241 (2010);
64. PRC Realty, Sys., Inc. v. Nat'l. Ass'n of Realtors, Inc., 766 F. Supp. 453, 461 (E. D. Va. 1991) ("The registration is, after all, merely the plaintiff's 'ticket' to court; the protection of the copyright arises at the time of the creation of the work.").
65. See 17 U. S. C. § 401 (d);
66. Intown Enters., Inc. v. Barnes, 721 F. Supp. 1263, 1265-66 (N. D. Ga. 1989).
67. See Intown Enters., Inc., 721 F. Supp. at 1266 ("[N]o notice of copyright was required because there was no general publication of plaintiff's architectural plans. In light of this finding, the omission of notice provisions of section 405 are inapplicable and Barnes may not be shielded from liability based on the innocent infringement provision. ").
68. See 17 U. S. C. § 412 (2006). The statute provides: [N]o award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for-(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
69. Aerospace Servs. Int'I v. LPA Grp. Inc., 57 F.3d 1002, 1003 (11th Cir. 1995);
70. Zito v. Steeplechase Films, Inc., 267 F. Supp. 2d 1022, 1025-26 (N. D. Cal. 2003);
71. RPM Mgmt., Inc. v. Apple, 943 F. Supp. 837, 840 (S. D. Ohio 1996).
72. See 17 U. S. C. § 412.
73. See Hays v. Sony Corp. of Am., 847 F.2d 412, 415 (7th Cir. 1988)
74. abrogated on other grounds by F. T. C. v. Army Travel Serv., Inc., 894 F.2d 879, 880 (7th Cir. 1989).
75. See Architectural Works Copyright Protection Act, Pub. L. No. 101-650, 104 Stat. 5089, 5133 (1990).
76. See Home Design Servs., Inc. v. David Weekly Homes, LLC, 548 F. Supp. 2d 1306, 1310 (M. D. Fla. 2008)
77. (quoting 37 C. F. R. § 202.11 (d) (3) (i) (2008) which excludes from copyright protection the "designs of buildings where the plans or drawings of the building were published before December 1, 1990, or the buildings were constructed or otherwise published before December 1, 1990"). The regulations also indicate that copyright protection is not available for unpublished building designs "that were unconstructed and embodied in unpublished plans or drawings on December 1, 1990, and remained unconstructed on December 31, 2002."
78. See, e.g., Siegel v. Warner Bros. Entm't. Inc., 542 F. Supp. 2d 1098, 1126, 1131 (C. D. Cal. 2008) (finding that filing a termination notice eleven days after the fiveyear window for filing termination notices prevented the heirs of the "Superman" creator from terminating the copyrights and renegotiating the license fee).
79. See 17 U. S. C. § 104.
80. Am. Visuals Corp. v. Holland, 239 F.2d 740, 742 (2d Cir. 1956).
81. See La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 953 (9th Cir. 1995) ("Congress declined to define 'publication' in the 1909 Act and courts have split over how to define the term for copyright purposes." (emphasis added))
82. superseded by statute, 17 U. S. C. 303 (b) (2006)
83. as recognized in Societe Civile Succession Guino v. Renoir, 549 F.3d 1182, 1185 (9th Cir. 2008);
84. (citing 17 U. S. C. § 62 (1909) (repealed 1978)).
85. See 17 U. S. C. § 303.
86. See To Amend and Consolidate the Acts Respecting Copyright: Hearing on S. 6330 and H. R. 19854 Before the Joint Comm. on Patents, 59th Cong. 71 (1906) 9 (statement of Herbert Putnam, Librarian of Congress).
87. 17 U. S. C. § 101.
88. Publish Definition, DICTIONARY. COM, http://dictionary.reference.com/ browse/published (last visited Sept. 13, 2011).
89. See Bell v. Combined Registry Co., 397 F. Supp. 1241, 1248 (N. D. Ill. 1975)
90. (quoting MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 49 (1972)) (including a poem in many letters to servicemen contributed to a finding that the poem was published).
91. See Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1217 (11th Cir. 1999).
92. See 17 U. S. C. § 101.
93. See Am. Visuals Corp. v. Holland, 239 F.2d 740, 742, 743 (2d Cir. 1956). Publication is an element of state law defamation claims.
94. See 50 AM. JUR. 2D Libel and Slander § 228 (2006).
95. For defamadon claims, communicadon to anyone other than the targeted person is sufficient to constitute publication. See Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1552 (10th Cir. 1995)
96. (quoting Magnolia Petroleum Co. v. Davidson, 148 P.2d 468, 471 (Okla. 1944) ("[P]ublication of a libel is the communication of the defamatory matter to a third person or persons."));
97. * 20 (M. D. La. July 18, 2005)
98. (citing Wisner v. Harvey, 694 So. 2d 348, 350 (La. Ct. App. 1996) ("The 'publication' element of a defamation action requires publication or communication of defamatory words to someone other than the person defamed.")). Communicating a defamatory statement to only one person other than the target is enough to establish publication, even if that person is enjoined to secrecy.
99. See Libel and Slander, supra, § 228.
100. Publication has also been a source of litigation in patent law. In accordance with 35 U. S. C. § 102, prior publication of an invention may prevent it from being deemed patentable. The statute provides: A person shall be entitled to a patent unless-(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States....
101. U. S. C. § 102 (2006). Generally, a work is considered published if it is "actively disseminated... [or] made available to the public... as a whole... [or to those] interested in the document's subject matter."
102. Wesley Kobylak, Annotation, Meaning of Term "Printed Publication" Under 35 U. S. C. A. § 102 (a) and (b)
103. Denying Patentability to Invention Described in Printed Publication Before Invention by Applicant or More than One Year Prior to Date of Patent Application, 70 A. L. R. FED. 796, § 2 [a] (1984).
104. Copyright infringement occurs when a person "violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122...." 17 U. S. C. § 501 (a).
105. See A&M Records, Inc. v. Napster, Inc. 239 F.3d 1004, 1013-14 (9th Cir. 2001).
106. 17 U. S. C. § 106.
107. Salinger v. Random House, Inc., 811 F.2d 90, 95 (2d Cir. 1987).
108. See Perfect 10 v. Amazon.com, Inc. 487 F.3d 701, 718 (9th Cir. 2007) (finding that requiring actual dissemination "is consistent with the language of the Copyright Act");
109. Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 434 (8th Cir. 1993) (recognizing that most courts have found that violation of the distribution right requires "actual dissemination of either copies or phonorecords"
110. Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. Ariz. 2008) ("106 (3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public").
111. But see Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) (finding that distribution occurs when a public library adds an unauthorized copy of a work to its collection and makes that copy available for patrons to borrow).
112. Cf. Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 300 (3d Cir. 1991) ("[B]ecause 'publication' and the right protected by section 106 (3) are the same, and because a 'publication' can occur when only one member of the public receives a copyrighted work, it follows that a violation of section 106 (3) can also occur when illicit copies of a copyrighted work are only distributed to one person. ").
113. 17 U. S. C. § 101.
114. See Atl. Recording Corp., 554 F. Supp. 2d at 985, 987 (holding that defendant's acts of making music available on the file sharing site K. Z. A. did not amount to "publication").
115. See 17 U. S. C. § 101.
116. See Atl Recording Corp., 554 F. Supp. 2d at 982-85.
117. See Atl. Recording Corp., 554 F. Supp. 2d at 984;
118. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 169 (D. Mass. 2008);
119. Elektra Entm't Grp., Inc. v. Barker, 551 F. Supp. 2d 234, 241 (S. D. N. Y. 2008).
120. See, e.g., Jackson v. MPI Home Video, 694 F. Supp. 483, 490 (N. D. Ill. 1988) (evaluating the second fair use factor, the court mentions that the "right of first publication" was violated). Cases were also generally excluded if they did not expressly mention the issue of "publication" even if they appeared to be looking at the same concept. Barton Beebe's empirical study of copyright fair use included cases that used rough synonyms for publication.
121. For example, Beebe includes cases such as Penelope v. Brown, 792 F. Supp. 132 (D. Mass. 1992), that do not expressly address the issue of "publication" but instead discuss the "public availability" of a work as part of the second fair use factor.
122. See generally James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 YALE L. J. 882 (2007) (analyzing the practical implications of copyright's feedback loop).
123. Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 96 CALIF. L. REV. 63, 92 (2008).
124. Bernard Trujillo, Patterns in a Complex System: An Empirical Study of Valuation in Business Bankruptcy Cases, 53 UCLA L. REV. 357, 364-65 (2005) (footnotes omitted).
125. See 17 U. S. C. § 301 (2006);
126. Blanc v. Lantz, 83 U. S. P. Q. (BNA) 137 (Cal. Super. Ct. 1949) (Finding that the plaintiff had published a musical composition and therefore had no remedy under state common law).
127. See 17 U. S. C. § 301.
128. Cases that "assumed" a publication issue without deciding it were omitted. See, e.g., P. Kaufman, Inc. v. Rex Curtain Corp., 203 U. S. P. Q. (BNA) 859 (S. D. N. Y. 1978). The dataset also does not include cases in which publication was analyzed as a matter of contract interpretation.
129. See, e.g., Harris v. Simon & Schuster, Inc., 646 F. Supp. 2d 622, 630-31 (S. D. N. Y. 2009).
130. See 17 U. S. C. § 101. This statute contains so many copyright definitions that even for more recent cases, it cannot serve as a useful tool to narrow the field of relevant publication decisions.
131. See, e.g., Streeter v. Rolfe, 491 F. Supp. 416, 421-22 (W. D. La. 1980)
132. (holding that the plaintiff stipulated that his turkey decoy was not a published work, and therefore statutory damages under 17 U. S. C. § 412 were unavailable to him).
133. This procedure produced a high degree of consistency in coding. Formally, this can be expressed by calculating kappa, a standard barometer of intercoder reliability. On a random sample of cases, this measure achieved levels of.80 or greater, which suggests a very high degree of uniformity across coders. See GLEN H. ELDER, JR. ET AL., WORKING WITH ARCHIVAL DATA 42-43 (1993).
134. 224 F. Supp. 2d 567 (S. D. N. Y. 2002).
135. When the dependent variables were identical and the independent variables were nearly identical, additional findings were discarded if, in the author's judgment, the differences were so immaterial that they did not reflect a meaningful difference to the court. For example, the coding of two dances, The Owl and the Pussycat and Judith, were identical except for the variable that captures public performance. The court reported that Judith was publicly performed but did not report this information for The Owl and the Pussycat. Because this finding did not make a material difference to this court, the coding for Judith was maintained as it captured more information, and the coding for the second dance was discarded as merely duplicative. Using this method, the Martha Graham district court and appellate decisions demonstrated four clear patterns, each of which was retained in the data. See Martha Graham, 224 F. Supp. 2d at 569.
136. See Letter Edged in Black Press, Inc. v. Pub. Bldg. Comm'n of Chicago, 320 F. Supp. 1303 (N. D. Ill. 1970).
137. See Norma Ribbon & Trimming, Inc. v. Litde, 51 F.3d 45 (5th Cir. 1995).
138. See Harvey Cartoons v. Columbia Pictures Indus., Inc., 645 F. Supp. 1564, 1571 (S. D. N. Y. 1986) (holding that certain published images of Casper the Friendly Ghost are in the public domain for failure to renew the copyrights).
139. See Milton H. Greene Archives, Inc. v. BPI Commc'ns, Inc., 378 F. Supp. 2d 1189 (C. D. Cal. 2005) (regarding general publication of photos of Marilyn Monroe).
140. See Pritikin v. Liberation Publ'ns, Inc., 83 F. Supp. 2d 920 (N. D. Ill. 1999).
141. See Paramount Pictures Corp. v. Rubinowitz, 217 U. S. P. Q. (BNA) 48, 51 (E. D. N. Y. 1981) (finding that publicly performed Star Trek episodes are not in the public domain).
142. See Curtis v. Benson, 959 F. Supp. 348 (E. D. La. 1997).
143. See Acad. of Motion Picture Arts & Scis. v. Creative House Promotions, Inc., 944 F.2d 1446, 1451 (9th Cir. 1991) (finding that distribution of Oscars to awards recipients was merely a "limited publication").
144. See Publ'ns Int'l, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996).
145. See Harper & Row Publishers v. Nation Enters., 471 U. S. 539, 554 (1985) (holding that the unpublished nature of Gerald Ford's memoir was an important factor in determining that unauthorized publication by a news magazine was not fair use);
146. Washingtonian Publ'g Co. v. Pearson, 306 U. S. 30, 41-42 (1939)
147. Ferris v. Frohman, 223 U. S. 424 (1912) (holding that public performance of a play is not a publication);
148. Am. Tobacco Co. v. Werckmeister, 207 U. S. 284, 300 (1907) (holding that display of a painting is not a publication if "care was taken to prevent copying");
149. Mifflin v. Dutton, 190 U. S. 265, 266 (1903) (finding that twentynine chapters of The Minister's Wooingby Harriet Beecher Stowe were published when they appeared in The Atlantic Monthly without a copyright notice, and therefore, they fell into the public domain);
150. Mifflin v. R. H. White Co., 190 U. S. 260, 264 (1903) (concluding that Oliver Wendell Holmes's book Professor at the Breakfast Table-was published and fell into the public domain because the notice contained the name of the firm owning the publication but not the name of the author);
151. Holmes v. Hurst, 174 U. S. 82, 88-89 (1899) (finding that publication in the form of serial printing of The Autocrat of the Breakfast Table with no notice but with the consent of the author resulted in loss of the copyright in the entire book);
152. Thompson v. Hubbard, 131 U. S. 123, 151 (1889) (holding that failure of the copyright assignee to observe formalities in all works he published resulted in forfeiture of the copyright);
153. Callaghan v. Myers, 128 U. S. 617, 657 (1888) (holding that delivery of copies of a work to the secretary of state constitutes publication).
154. See Harper & Row Publishers, 471 U. S. at 554.
155. 1 JOHN W. HAZARD, JR., COPYRIGHT LAW IN BUSINESS AND PRACTICE § 1:4 (rev. ed. 2009).
156. W. Russell Taber, Note, Copyright Déjà Vu: A New Definition of "Publication" Under the Copyright Act of 1909, 58 VAND. L. REV. 857, 860 n. 18 (2005)
157. (citing MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 4.01 (2004)).
158. RayMing Chang, "Publication" Does Not Really Mean Publication: The Need to Amend the Definition of Publication in the Copyright Act, 33 AIPLA Q. J. 225, 226 (2005) (emphasis added) (footnote omitted).
159. See, e.g., BRUCE P. KELLER & JEFFREY P. CUNARD, COPYRIGHT LAW § 6.1 (2006) ("The 1909 Copyright Act required careful observance of special rules for publication and notice as a condition of statutory copyright protection, and often imposed harsh consequences for seemingly minor lapses in compliance. A technical slip could result in loss of copyright protection and consignment of the work to the public domain.... The 1976 Act, by contrast, makes publication and notice permissive or optional for the copyright owner.... Yet, despite their diminished importance under the 1976 Act, publication and notice remain relevant to today's practitioner in several important respects...." (emphasis added));
160. See Copyright Act, Pub. L. No. 94-553, 90 Stat. 2541 (1976);
161. Copyright Act, Pub. L. No. 60-349, 35 Stat. 1075 (1909).
162. See Callaghan v. Myers, 128 U. S. 617, 657 (1888) (Finding that submission to the secretary of state constituted publication and, therefore, that submission date is the date used when determining compliance with the deposit requirements of the statute);
163. Twentieth Century-Fox Film Corp. v. Dieckhaus, 153 F.2d 893, 898 (8th Cir. 1946) (indicating that since the plaintiffs work was determined to be unpublished there can be no assumption that the defendant's servants were familiar with or had unconsciously copied from the work);
164. United States v. Backer, 134 F.2d 533, 536 (2d Cir. 1943) (determining the date of publication to determine the date's effect on the validity of the copyright registration);
165. Bentley v. Tibbals, 223 F. 247, 256 (2d Cir. 1915) (explaining how a work that was originally published in England, then imported and then sold in the United States, is published in the United States and would require a copyright notice);
166. Tribune Co. of Chi. v. Associated Press, 116 F. 126, 128 (C. C. N. D. Ill. 1900) (holding that publication in London terminated common law copyright, and therefore federal statutory law governed the dispute.);
167. Shilkret v. Musicraft Records, Inc., 43 F. Supp. 184, 186 (S. D. N. Y. 1941)
168. rev'd 131 F.2d 929 (2d Cir. 1942) (determining that deposit with the copyright office is not sufficient to constitute publication and that since the work is not published the copyright owner cannot obtain the benefits of § 1 (e).);
169. Hoyt v. Daily Mirror, Inc., 31 F. Supp. 89, 90 (S. D. N. Y. 1939) (finding that the copyright claim could not proceed because the plaintiff did not comply with the § 12 deposit requirements promptly after publication).
170. See S. REP. NO. 94-473, at 64 (1975).
171. 471 U. S. 539 (1985).
172. See Ladd v. Oxnard, 75 F. 703, 731 (C. C. D. Mass. 1896) ("The determinations of various courts that, under some circumstances, the delivery of lectures, or the representation of plays, to such of the public as may attend, do not constitute publication, must be regarded as rather of an incidental character, arising undoubtedly to some extent from tenderness for authors, and not establishing any general rule.");
173. Keene v. Wheatley, 14 F. Cas. 180, 199 (C. C. E. D. Pa. 1861) (No. 7, 664) ("A limited publication of it is an act which communicates a knowledge of the contents to a select few, upon conditions expressly or impliedly precluding its rightful ulterior communication, except in restricted private intercourse.");
174. White v. Kimmel, 193 F.2d 744, 746-47 (9th Cir. 1952).
175. See Aerospace Serv. Int'l v. LPA Grp., Inc., 57 F.3d 1002, 1003 (11th Cir. 1995) (finding that a copyright holder's distribution to a subcontractor and the Federal Aviation Administration of technical specifications for the design of an airport security system was a "limited publication");
176. Hirshon v. United Artists Corp., 243 F.2d 640, 645 (D. C. Cir. 1957) (finding that the distribution of approximately 2, 000 copies of a song to various people in the music business was not a general publication);
177. Allen v. Walt Disney Prods., Ltd., 41 F. Supp. 134, 135-36 (S. D. N. Y. 1941) (holding that distribution of copies of a song to orchestra leaders, along with playing of the song in restaurants and broadcasts over the radio, did not constitute dedication divesting plaintiff of his common law rights);
178. see also Brewer v. Hustler Magazine, Inc., 749 F.2d 527, 528-29 (9th Cir. 1984) (holding that copyright owner's distribution of roughly 200 business cards in seeking employment amounted to a limited publication);
179. RPM Mgmt., Inc. v. Apple, 943 F. Supp. 837, 842 (S. D. Ohio 1996) (holding that distribution of building plans to a bank and an individual was a limited publication);
180. Nat'l Broad. Co. v. Sonneborn, 630 F. Supp. 524, 534 (D. Conn. 1985) (finding that, for the 1960 version of Peter Pan, a course of conduct including the following acts was a mere limited publication: delivery of kinescopes for delayed broadcast, circulation of audition copies to European broadcasters, leasing of copies for broadcasting in five countries and donation to a museum);
181. Burnett v. Lambino, 204 F. Supp. 327, 329 (S. D. N. Y. 1962) ("Restricted distribution to a circumscribed class of persons of an unpublished work... for the purpose of arousing interest in a possible sale or production, is a sufficiently limited distribution to work no forfeiture of an author's rights.");
182. McCarthy & Fischer, Inc. v. White, 259 F. 364, 365 (S. D. N. Y. 1919) (holding that where copies of a song were given to "a limited number of artists to sing prior to the date of copyright" but were not sold or given away for any other purpose, there was no general publication).
183. Burke v. Nat'l Broad. Co., 598 F.2d 688, 691 (1st Cir. 1979).
184. 207 U. S. 284 (1907)
185. superseded by statute, Copyright Act, Pub. L. No. 94-553, 90 Stat. 2541 (1976)
186. as recognized in Harper & Row Publishers, Inc. v. Nation Enters., 471 U. S. 539, 551 (1985).
187. 17 U. S. C. § 101 (2006).
188. The data for this category may be somewhat underinclusive, because cases that mention the distinction but did not result in a specific limited or general publication holding were excluded from the data in Figures 10 and 11. See, e.g., Open Source Yoga Unity v. Choudhury, 74 U. S. P. Q.2d (BNA) 1434 (N. D. Cal. 2005) (discussing limited and general publication but denying summaryjudgment motions due to questions of fact);
189. Bull Publ'g Co. v. Sandoz Nutrition Corp., 13 U. S. P. Q.2d 1678 (BNA) (N. D. Cal. 1989) (discussing limited and general publication but denying summary judgment motions due to questions of fact).
190. See Krafft v. Cohen, 117 F.2d 579, 580 (3d Cir. 1941);
191. Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 F. 54, 58-59 (1st Cir. 1896);
192. Keene v. Wheatley, 14 F. Cas. 180, 199 (C. C. E. D. Pa. 51861) (No. 7, 644).
193. See Hustlers, Inc. v. Thomasson, 253 F. Supp. 2d 1285, 1290-91 (N. D. Ga. 2002).
194. See, e.g., Pierce & Bushnell Mfg. Co., 72 F. at 58-59;
195. Keene, 14 F. Cas. at 199.
196. A work may be in the public domain if published without a copyright notice in the United States between 1978 and 1989. However, if a copyright owner attempted to correct the omission, cure provisions in the statute might be applied to preserve the copyright and find that the work was not dedicated to the public domain. See 17 U. S. C. § 405 (2006).
197. The fair use statute provides: Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 17 U. S. C. § 107.
198. See Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569, 578 (1994) (explaining that the four § 107 factors "are to be explored, and the results weighed together, in light of the purposes of copyright").
199. 17 U. S. C. § 107.
200. Other issues considered in analyzing the second fair use factor include the extent to which the work is creative or factual. See Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-54 (9th Cir. 1986) ("The scope of fair use is greater when 'informational' as opposed to more 'creative' works are involved.");
201. Deborah Gerhardt & Madelyn Wessel, Fair Use and Fairness on Campus, 11 N. C. J. L. & TECH. 461, 520-21 (2010) ("This factor tends to favor the copyright owner when a work is creative but may favor the person seeking to use the work if it is factual.").
202. Analysis of the first fair use factor, "the purpose and character of the use" can involve examination of the extent to which the work is transformative, educational, and commercial, as well as the different situations stated in the preamble to 17 U. S. C. § 107.
203. See 17 U. S. C. § 101 ("A public performance or display of a work does not of itself constitute publication. ").
204. See L. A. News Serv. v. Reuters Television Int'l, Ltd., 942 F. Supp. 1275, 1283 (C. D. Cal. 1996) ("[T]he evidence in this case indicates that the works were so widely published that every person in America could have seen them on one of the three networks that obtained licenses from Plaintiff in the 48 hours following their creation-a fact that minimizes their ensuing value.")
205. vacated on other grounds, 149 F.3d 987 (9th Cir. 1998).
206. 510 U. S. 569 (1994).
207. See S. REP. NO. 94-473, at 64 (1975) ("A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is 'out of print' and unavailable for purchase through normal channels, the user may have more justification for reproducing it than in the ordinary case...." (emphasis added)).
208. Cf. PETER B. HIRTLE, ET AL., COPYRIGHT AND CULTURAL INSTITUTIONS 30 (2009)
209. (asserting that works publicly available at museums should not be treated as though they are in the public domain based on Wright v. Warner Books, Inc., 748 F. Supp. 105 (S. D. N. Y. 1990) in which the publication issue was decided in the fair use context).
210. Cases deciding publication issues involving sound recordings were omitted from this section because of doctrinal issues that are peculiar to this particular factual context, and therefore are not representative of publication issues generally. "Phonorecords" were traditionally treated differently from "copies." See, e.g., White-Smith Music Publ'g Co. v. Apollo Co., 209 U. S. 1, 18 (1908) (holding that because a perforated roll for playing music is not a copy, sales of the rolls did not constitute a violation of the distribution right and thereby creating the basis for the premise that sales of phonorecords would not constitute publication);
211. La Cienega Music Co. v. ZZ Top, 53 F.3d 950, 953 (9th Cir. 1995) (finding that record sales result in publication)
212. superseded by statute, 17 U. S. C. 303 (b) (2006)
213. as recognized in Societe Civile Succession Goino v. Renoir, 549 F.3d 1182, 1185 (9th Cir. 2008);
214. Rosette v. Rainbo Record Mfg. Corp., 354 F. Supp. 1183, 1193 (S. D. N. Y. 1973) (holding that because records are not copies, sales of records do not result in publication). Until 1972, some recordings were protected by state, not federal copyright law, and until the 1976 Act became effective in 1978, there was considerable doctrinal confusion over whether sales of phonorecords could amount to publication of a musical work. Only after passage of the 1976 Act, did Congress make it clear that publication results from "the distribution of copies or phonorecords."
215. Copyright Act, Pub. L. No. 94-553, 90 Stat. 2541, 2543 (1976) (emphasis added).
216. See, e.g., John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 37 (1st Cir. 2003);
217. Nucor Corp. v. Tenn. Forging Steel Serv., Inc., 476 F.2d 386, 391 n. 8 (8th Cir. 1973);
218. Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 401-02 (S. D. N. Y. 2002);
219. Burke v. Nat'l Broad. Co., 462 F. Supp. 267, 271 (D. N. H. 1978);
220. King v. Mister Maestro, Inc., 224 F. Supp. 101, 107 (S. D. N. Y. 1963).
221. 17 U. S. C. § 101 (2006).
222. Copyright Law Revision: Hearing on H. R. 2223 Before the Subcomm. on Courts, Civil Liberties, and the Admin, of Justice of the H. Comm. on the Judiciary, 94th Cong. 2080 (1975) (briefing papers authored by Copyright Office). Interestingly, the Nimmer treatise characterizes the history differently, suggesting that the definition captures the concept of publication that evolved in the federal courts, and was not intended to alter that meaning.
223. For this proposition, the treatise cites two cases, the first of which is Harris Custom Builders, Inc. v. Hoffmeyer, 92 F.3d 517 (7th Cir. 1996).
224. The second case the treatise cites is Cipes v. Mikasa, Inc. 346 F. Supp. 2d 371 (D. Mass. 2004).
225. See Cipes, 346 F. Supp. 2d at 375. The Court states that because only the author has the exclusive right to distribute, no one else can publish a work.
226. See, e.g., Letter Edged in Black Press, Inc. v. Pub. Bldg. Comm'n of Chi., 320 F. Supp. 1303, 1309 (N. D. Ill. 1970) (holding that copyright was lost through unauthorized sales of images). The Nimmer treatise itself embraces some ambiguity on this point. In a later section, the authors suggest that intent is irrelevant, stating that "forfeiture of copyright... may occur as a consequence of publication without proper copyright notice and is effectuated by operation of law regardless of the intent of the copyright owner."
227. See, e.g., Donald Frederick Evans & Assocs., Inc. v. Cont'l Homes, Inc., 785 F.2d 897, 912 (11th Cir. 1986) (observing that "[t]he statutory scheme clearly foresees copyright protection being forfeited for some works against the intent of the copyright owner");
228. H. W. Wilson Co. v. Nat'l Library Serv. Co., 402 F. Supp. 456, 458 (S. D. N. Y. 1975)
229. (citing Nat'l Comics Publ'ns, Inc. v. Fawcett, Inc., 191 F.2d 594 (2d Cir. 1951)) ("However, intent to dedicate a work is irrelevant to whether a work enters the public domain. Publishing a book without copyright notice puts the work in the public domain. ").
230. Because these data are percentages, I calculate their differences by a "difference of proportions" test, a variation of the more commonly used "difference of means test." In either form, the test determines whether the relevant difference between groups is too large to be attributed to chance. The differences here are considered statistically significant if there is less than a 5% probability that the difference is due to chance. See GEORGE W. BOHRNSTEDT & DAVID KNOKE, STATISTICS FOR SOCIAL DATA ANALYSIS 187 (2d ed. 1988).
231. See 17 U. S. C. § 101 (2006).
232. Probit is one of several different methods within the family of regression tools. Regression "provides a robust technique for estimating the strength of the relauonship between variables." David C. Dixon, Appendix A: Regression and Pooled Cross-Sectional Time Series, in CONTEMPLATING COURTS 423, 423 (Lee Epstein ed., 1995). In its most common form, regression estimates the impact of one or more independent variables on a continuous dependent variable. In some cases, however, the dependent variable is discrete, taking only one of two possible values, and probit is an appropriate technique in such circumstances.
233. Some opinions decided after 1976 indicate that the court is applying the common law understanding of publication that preceded passage of the 1976 Act. See Open Source Yoga Unity v. Choudhury, 74 U. S. P. Q.2d 1434, 1439-41 (N. D. Cal. 2005);
234. Maljack Prods., Inc. v. UAV Corp., 964 F. Supp. 1416, 1423-25 (C. D. Cal. 1997).
235. See Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright Law, HARV. L. REV. (forthcoming 2012), available at http://papers.ssrn.com/abstract= 1911352.
236. For examples of publication in cases where copy quality was inferior, see Bell v. E. Davis International, Inc., 197 F. Supp. 2d 449, 459 (W. D. N. C. 2002)
237. Scott v. Paramount Pictures Corp., 449 F. Supp. 518, 520 (D. D. C. 1978)
238. and Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F. Supp. 776, 782-83 (S. D. N. Y. 1968).
239. Copyright Act, Pub. L. No. 94-553, 90 Stat. 2541, 2543 (1976).
240. See, e.g., Paramount Pictures Corp. v. Rubinowitz, 217 U. S. P. Q. 48, 50 (E. D. N. Y. 1981) (declining to follow Nimmer treatise and instead finding no publication where distribution of Star Trek episodes under two types of licenses, library licenses and booking licenses, as library licenses provided that the television stations received copies of all seventy-nine 'Star Trek' episodes which the stations retained for the term of the license (at the end of the term, the stations were required to return all the prints to Paramount) and under booking licenses, television stations received the episodes one by one for broadcast and returned them within forty-eight hours of broadcast);
241. Patterson v. Century Prods., Inc., 19 F. Supp. 30, 34 (S. D. N. Y. 1937) (finding that distribution of the film reel was no more than a limited publication because "Patterson's loan of the film without charge to certain religious, charitable, and educational organizations was so hedged round with conditions that the purpose of the author not to reproduce copies for sale or for rent and not publish it generally is clearly manifest");
242. See, e.g., Mcintosh v. N. Cal. Universal Enters. Co., 670 F. Supp. 2d 1069, 1097-98 (E. D. Cal. 2009) (finding limited publication);
243. John G. Danielson, Inc. v. Winchester-Conant Props., Inc., 186 F. Supp. 2d 1, 18 (D. Mass. 2002) (finding no publication);
244. MacMillan Co. v. I. V. O. W. Corp., 495 F. Supp. 1134, 1145 (D. Vt. 1980) (Finding limited publication).
245. The definition provides: "Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed. 17 U. S. C. § 101 (2006). This definition remains ambiguous because it does not specify whether a single original, never duplicated, falls within the plural term of "copies." But by defining copies as both "material objects" and a "material object in which the work is first fixed," it appears to leave the door open to this possibility.
246. (citing Pierce & Bushnell Mfg. Co. v. Werckmeister, 72 F. 54 (1st Cir. 1896)).
247. One reason for this difference may be the lingering effects of Werckmeister v. American Lithographic Co., 134 F. 321 (2d Cir. 1904), in which the Second Circuit Court of Appeals held that the exhibition of an original painting did not constitute publication.
248. See 17 U. S. C. § 107.
249. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U. S. 539, 548-49 (1985).
250. See King v. Mister Maestro, Inc., 224 F. Supp. 101, 107-08 (S. D. N. Y. 1963).
251. The district court decision in Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 13 F. Supp. 2d 1347, 1354 (N. D. Ga. 1998) (granting summary judgment for the defendant based on a finding that the speech is in the public domain)
252. rev'd, 194 F.3d 1211 (11th Cir. 1999), was overturned for improperly deciding questions of fact.
253. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1220.