Copyright: What constitutes “publication”?
Posted on: August 9, 2011
Sorry, I do not profess to be an expert on copyright law! But those interested in the intricacies of it may find the below of interest.
Fifty years ago producer Adrian Weiss commissioned an opinion from renowned copyright and trademark attorney, E. Fulton Brylawski, principally regarding what constitutes “publication” in copyright law. The following is a slight abridgement of the letter, the original of which I donated to the Margaret Herrick Library, Academy of Motion Picture Arts and Sciences:
Mr. Brylawski opines:
In the case of Jewelers Mercantile Agency v. Jewelers Publishing Company, decided by a New York state court (1892) it was held that the leasing of copies of a book to subscribers was a publication, even though the lessor never parted with the title to the work and the lessee agreed to return the copy after the expiration of the term for which it had been leased.
Motion pictures are almost never sold or placed on sale and it is doubtful that they are “publicly distributed,” but it is generally believed that the leasing of prints of motion pictures to exhibitors for theatrical showing, constitutes a publication of the pictures under the decision referred to, but the question has never been squarely decided that motion pictures are actually published by this method of distribution. [Keep in mine that this letter was written before the advent of home video]
While I feel that there can be no real doubt on this point, it does not necessarily follow that because a motion picture may be in the public domain, anyone may freely copy and exhibit or distribute copies of the film.”
Anyone who may have lawfully acquired title to any print of the pictures, may use same in any manner he chooses, but a person who obtains temporary possession of any property for one purpose and who converts same to his own use by using it for a different purpose than that for which possession had been temporarily parted with, can be restrained and would be liable to damages for the conversion.
In view of the fact that no one, other than yourselves, has any prints or negatives of these pictures [The “Chuckleheads” TV series]*, there cold be no danger of competition from outside sources.” Perhaps my reference to one being in “lawful possession” of a print of one of your old pictures was ambiguous.
If one had a print which had been sold, the purchaser would have lawful possession. If a laboratory had liens on prints and they were sold to satisfy the liens, the purchaser at such a sole would have lawful possession. [Could make copies if the film is in the public domain.]
If a print was parted with for screening purposes or for exhibition or telecasting, the possession of such a print would be a lawful one, but the making of a copy would be an unlawful use, for which the offender would be liable.”
The exhibition of the picture is not a publication and an unpublished motion picture may be freely exhibited without changing its status as an unpublished work. If the picture was not published, it is unimportant whether or not it had a notice of copyright, as this notice is only required in the case of published works.
Publication of a motion picture occurs when copies are sold or leased to theatres for the purpose of exhibition. It is the leasing which constituted publication – not the exhibitions of the film.
The copyright law does not define what constitutes publication. It merely states that the date of publication shall be the earliest date when copies were placed on sale, sold or publicly distributed. The production of a play on the stage is not a publication of the play and exhibitions of motion pictures on the screens is similarly not a publication of the pictures.
[*] “Chuckleheads” is a series of 150 five-minute shorts edited from Weiss Bros. Artclass Pictures comedies, with added music and sound effects
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