What Constitutes Publication in a Copyright Case? Part One

This post addresses some unfinished business concerning my recent post about some U.S. copyright issues. There are two very vague areas in the U.S. copyright law: fair use and publication. Neither of these "legal doctrines" are explicitly defined in the statutes. I will first discuss publication and then in a subsequent post, fair use.

Genealogists seem to get into this issue in a big way when they start to worry about who can or who cannot publish an old photo, diary, document or etc. The main concern is that there was and still is an issue with the term of copyright coverage to "unpublished works."

Before I begin, I want to clarify my legal position. I am a completely retired attorney from Arizona. I now live in Utah and I no longer practice law in either state. My opinions are just that: opinions. During the time I was actively practicing law, I was consistently involved in what is now called "intellectual property" law although my main practice was commercial litigation. I have taught a number of classes on both U.S. Constitutional law and Intellectual Property law. What I write is not to be construed as legal advice to anyone for any purpose. That said, here I go again.

In the area of copyright law, one of the most recurring questions involves the issue of when a work is protected. The current copyright law is clear. Quoting from the Frequently Asked Questions on the U.S. Copyright Office website, Copyright.gov,

When is my work protected?

Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

This seems straight forward and simple and it is. But the real issues start to arise when we consider works created at some point in the past. The application of the law depends on the law in effect at the time the work was created and copyright law has changed many, many times over the years from its first mention in the United States Constitution, Article 1, Section 8.  The best and most current summary of the U.S. Copyright Law is from Cornell University's Copyright Term and the Public Domain in the United States, 1 January 2015. As this chart explains in a footnote:

"Publication" was not explicitly defined in the Copyright Law before 1976, but the 1909 Act indirectly indicated that publication was when copies of the first authorized edition were placed on sale, sold, or publicly distributed by the proprietor of the copyright or under his authority.

In law, the word "or" is important. The definition from the 1909 Act did not limit publication to the commercial sale but included when the work was "publicly distributed." What does this mean? Hmm. That is the real question. Let's see what the law has said about this issue. One way to begin to find out the status of any legal issue is to review the scholarly journal articles on the subject. Law students and law professors thrive on publishing articles and they sometimes do an adequate job of reviewing the law in any given area.

Unfortunately for those uninitiated to the law of copyright, there is a legal doctrine called "common-law copyright." The definition of common law copyright, like many legal terms, is circular:

Common law copyright is the legal doctrine which grants copyrightprotection based on common law of various jurisdictions, rather than through protection of statutory law, like the federal copyright statute. See Wikipedia: Common law copyright. 

I have not raised this issue particularly before, because it is somewhat outmoded. Quoting from the Wikipedia article:

In part, it is based on the contention that copyright is a natural right and creators are therefore entitled to the same protections anyone would be in regard to tangible and real property. The proponents of this doctrine contended that creators had a perpetual right to control the publication of their work (also see perpetual copyright).[citation needed] 

The "natural right" aspect of the doctrine was repudiated by the courts in the United Kingdom (Donaldson v. Beckett, 1774) and the United States(Wheaton v. Peters, 1834). In both countries, the courts found that copyright is a limited right created by the legislature under statutes and subject to the conditions and terms the legislature sees fit to impose.

I left in the cross-references in case you want to investigate this issue further. I would note that Wikipedia is just a convenient starting point for research on any given subject. In many cases, I am compelled to go much further and examine original court documents and decisions.

The U.S. Supreme Court case of Wheaton vs. Peters 33 U.S. 591 (1834) is the beginning point for understanding the issue of publication. The opinion is quite long (not unusual) and addresses the issue of the relationship of the common law (derived from the historic English law) to statutory law or the laws created by the U.S. Legislature. The question, put as simply as I can, is whether or not an individual can claim a copyright to a document under the common law (court decided law) or whether copyright protection originates solely from statutory provisions? The division in the United States is between the law of the individual states and that of the Federal Government. If there is a common law copyright claim, then the right is perpetual. Think about that.

You can search the complete version of the current U.S. Copyright Law from Circular 92, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code on the Copyright.gov website. 

The pertinent amendment to the existing copyright law is as follows:

[CopyrightAmendments], Pub. L. No.102-492,106 Stat. 3145 (amending §107, title 17, United States Code, regarding unpublished works), enacted October 24, 1992.

Here are the basic provisions of the law contained in Sections 102 and 103:

§102 · Subject matter of copyright: In general 

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: 

(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. 

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

§103 · Subject matter of copyright: Compilations and derivative works 

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. 

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

 The important provision for the purpose of unpublished works is in Section 104:

§104 · Subject matter of copyright: National origin 

(a) Unpublished Works.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author.

Section (b) continues with published works.

What then does the law state about the terms of copyright coverage for "unpublished" works? What then constitutes publication? Good questions and the reason for this blog post.

The key provision of the statute from a legal standpoint is in Section 412:

§412 · Registration as prerequisite to certain remedies for infringement 

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411(c), no 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.

OK, what this means is that in any action for infringement of a copyright, you must follow the provisions of the statute to claim statutory damages or you are limited to your "actual" or provable damages.

Let's suppose you have a photo of your grandmother taken in 1900. There are a series of questions that need to be asked about the application of any copyright claim by the photographer. This list is not complete but should give you an idea of the questions that may be raised:

• When exactly was the photograph taken?
• Who took the photograph?
• Was the photograph ever published?
• Is the photographer still alive?
• When did the photographer die?
• What happened to the photograph after it was taken, assuming it was unpublished?

These are some of the actual questions I would ask you about your photograph if you were to consult with me before I retired. In fact, they are the same types of questions I asked when I took a Federal District Court case involving a copyright claim to a photograph. 

Let's further suppose that someone besides a member of your ancestral family took the photograph. How did the photograph come to be in your possession? That is a crucial question. 

Now, we have a basis for wondering if the photograph was ever published. If we go to the Cornell University Chart, referenced above, summarizes the law concerning works that are never published and never registered (I may get to registration later) as follows:

• Unpublished works have a term of the life of the author plus 70 years for works from authors who died before 1945. 
• If the work was anonymous or pseudonymous or "made for hire" i.e. of corporate authorship, then the copyright term is 120 years from the date of creation for works created before 1895.
• If the work is unpublished and the date of the death of the author is not known, then the copyright term is 120 years from the date of creation for works created before 1895. 

There is a footnote about this that says:

Unpublished works when the death date of the author is not known may still be copyrighted after 120 years, but certification from the Copyright Office that it has no record to indicate whether the person is living or died less than 70 years before is a complete defense to any action for infringement. See 17 U.S.C. § 302(e).

Now it is time to stop for this post and continue in Part Two.