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Statutory Requisites for Copyright in Works First Published: Publication
We turn again to section 9 of the Copyright Act: "Any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act.” The corresponding phraseology in the former law was: “No person shall be entitled to a copyright unless he shall” do so and so.
Thus the present law operates as an invitation, while the old law was a seemingly grudging extension of privilege because of the taint of monopoly in the grant. This change of attitude toward the author is worth noting, faint though it be, for it is the basis of all modern copyright law reform. The author is rightly to be deemed a public benefactor instead of a greedy monopolist to be hedged about by hampering restrictions upon adequate protection for his output.
Under the old law he was obliged to deposit the title on or before the day of publication of the work itself; but to perfect the copyright it was mandatory to deposit two copies of the work "not later than the day of publication in this or any foreign country” (Act of 1891); furthermore, as a condition for bringing suit for infringement, the notice of copyright had to appear "on the several copies of every edition published". If any one of these three conditions was not scrupulously complied with, the copyright was lost beyond recovery. Under the present Act, it is the omission, imperfection or misplacement of the notice alone which is necessarily fatal to the copyright protection; and, moreover, there is a saving clause in case of accidental omission of notice from certain copies.
It can be readily seen that, in drawing up contracts and assignments involving literary property, it is of the utmost importance to check up on all these points to determine the actual copyright status of the work in question, including a careful investigation of the Copyright Office records.
The term "copyright" is nowhere expressly defined in the Act, but as used in this Section 9 it embraces all of the various exclusive rights specifically granted by the Act as well as other rights incidental thereto. This subject will be dealt with in extenso later on. (Chapter XI.)
Nor does the Act expressly define “publication”. The persons entitled to secure copyright are supposed to know what it means. The courts look to the facts and circumstances in each particular case.
In section 62, however, we are told that in the case of a work "of which copies are reproduced for sale or distribution, the date of publication' shall be held to be the earliest date 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.” But, as remarked by the court in Cardinal Film Co. v. Beck, 248 F. 368 (1918), this was evidently intended to fix the date from which the term of copyright should begin to run for such a work, rather than a general definition of what should constitute publication in all cases.
In American Tobacco Co. v. Werckmeister, 207 U.S. 284 (1907), the subject-matter was an original painting which had been duly entered for copyright in the United States and subsequently exhibited at the Royal Academy in London without any notice of copyright thereon. It was contended by the defense that this omission destroyed the copyright, since the law in force at that time required the notice in the case of a painting, sculpture or other work “to be inserted in the several copies of every edition published" (18 St. L., pt. 3, p. 78). But because the evidence showed that it was against the established rules of the Academy to permit pictures on exhibition there to be copied by the public, and every possible means were taken to prevent it, the Supreme Court decided that such exhibition was a restricted one and did not forfeit the American copyright.* The Court then remarked: "We do not mean to say that the public exhibition of a painting or statue where all might see and freely copy it, might not amount to publication within the statute, regardless of the artist's purpose or notice of reservation of rights which he takes no measure to protect”. The present law contains no express provision covering the situation, and hence we may fairly conclude that a work of art is still to be deemed published when exposed unrestrictedly in public.
On the other hand, it is well established that the public performance of a spoken drama does not constitute publication thereof. Ferris v. Frohman, 223 U.S. 424 (1912); nor by analogy, the exhibition of a motion picture, DeMille v. Casey, 201 N.Y.S. 20 (1923); nor the public performance of a musical composition, whether for profit or not, McCarthy v. White, 259 F. 364 (1919); nor the oral delivery of a lecture or address, Nutt v. Nat'l. Institute, 31 F.2d 236 (CCA 2, 1929). And this applies irrespective of the methods employed, such as by broadcasting. Uproar Co. v. Nat'l. Broadcasting Co., 23 USPQ 254 (1934).
In Cardinal Film Co. v. Beck, 248 F. 368 (1918), the court held that the deposit in the Copyright Office of two copies of the complete film was in itself sufficient to constitute publication, following a similar ruling by Judge Learned Hand. Stern v. Remick, .175 F. 282 (1918). But in a later case, Judge Hand remarked that "Stern v. Remick was rightly decided because there had been a sale, but I must own that what I said there of publication (i.e. by deposit) seems to me now open to doubt”. Mittenthal v. Berlin, 291 F. 714 (1923). And well it might, for section 12 clearly contemplates that the publication shall take place outside of the Copyright Office prior to the deposit of copies. It provides: “That after copyright has been secured by publication of the work with the notice of copyright ... there shall be promptly deposited in the Copyright Office two
The implication would seem to be that if the exhibition abroad without the prescribed notice had been made without such restrictions as to copying, the American copyright would have been forfeited. But see the ruling by the same Court (per Justice Holmes) a few months later in the case of United Dictionary Co. v. Merriam Co., 208 U.S. 260 (1908), that, at least with respect to books, the statute then in force "does not require notice of the American copyright on books published abroad and sold only for use there”.
complete copies of the best edition then published.” And section 10 requires compliance with these provisions as a condition precedent to registration and issuance of the certificate.
The importance of recording the actual date of publication arises from the fact that, in the case of every work copyrighted in the first instance by publication with notice, the first term of 28 years begins to run from that date, and hence any error on the part of the applicant is liable to result in serious consequences, and especially in connection with application for renewal of copyright.
Generally speaking, then, the date of publication would be the very day when copies of the first authorized edition were either (1) placed on sale, or (2) sold, or (3) publicly distributed, or (4), in the case of works of art not reproduced in copies for sale or public distribution, the day when the original was unrestrictedly exhibited to the public. It would not include the date when copies may have been privately distributed by the author among friends or editors for the sole purpose of criticism or comment in advance of offering the work for public consumption. "The copyright statutes refer to a published edition, which is an edition offered to the public by sale or circulation". Falk v. Gast, 54 F. 890 (CCA 2, 1893). Nor would it include the date of printing or advertising the work, or the sale or offering for sale of the author's manuscript to a prospective publisher. These are but preliminary steps toward publication.
"Placed on Sale"
The phrase “placed on sale” is new in the copyright statutes and does not appear to have been defined by the courts. Ordinarily it implies the exposure of copies of the work on stalls or counters for inspection and purchase by the interested public, and on the very day of such exposure the copyright comes into being even though no sale takes place. Actual physical exposure may not be essential. If the dealer has copies “in stock” ready for delivery on demand, they may fairly be deemed placed on sale so far as the public is concerned. But the exhibition of "sample" copies by agents soliciting business would not in itself constitute placing on sale, for “a sample is not a published edition within the meaning of the copyright laws."
Falk v. Gast, supra. In such cases it is only when a bargain is struck and a sale and delivery is effected, that publication takes place. Gottesberger v. Aldine Book Co., 33 F. 381 (1888).
But copies are often sold directly without being technically “placed on sale”; as through the mails or by travelling salesmen. While the statute speaks of "copies", there can be no doubt that the sale of a single copy of "the first authorized edition" would be sufficient to start the copyright running. Werckmeister v. American Litho. Co., 134 F. 321 (1904). In one case it was held by the District Court that the sale of a proof copy of a magazine article to the treasurer of the company shortly before its appearance in the magazine, accompanied by the filing of two similar copies in the Copyright Office, constituted publication "insofar as the statutory formalities are concerned". Atlantic Monthly Co. v. Post Pub. Co., 27 F.2d 556 (1928). But such a ruling tends to bring chaos into the copyright law and to defeat the purpose of Congress in trying to secure for its library the best edition of all works claiming copyright protection. The infringement took place prior to publication of the article in the plaintiff's magazine, and the plaintiff should, under the circumstances, have brought suit under the common law and not under the statute. Had the notice been omitted from these proof copies, one of which had been surreptitiously secured by defendant, it is hardly conceivable that he could have successfully set this up as a defense against liability for damages at common law.
The term “publicly distributed” was inserted here to cover material which might be distributed gratuitously and never sold or placed on sale. (Original Hearings, 1906, vol. 1, p. 71; vol. 2, p. 101.) Familiar examples are house organs, pamphlets, handbills and the like left on doorsteps or sent out through the mails.
It seems that motion picture films are not usually sold or placed on sale, but are distributed to exhibitors on a contractual basis. When so distributed for the purpose of commercial exhibition, this constitutes publication; but not so where copies are sent out for restricted exhibition on a non-commercial basis