17 U.S.C. § 101

Section 101 treats an article that is normally part of a useful article as useful itself.

Langman Fabrics v. Graff Californiawear, Inc. · filed 1998-11-09

Thus, the necessity of an item being incorporated in a larger article does not deprive it of “usefulness” under the statute.

Section 101's work-for-hire routes do not cover sound recordings unless the employee or enumerated commissioned-work requirements are met, including a signed writing for the latter route.

Ballas v. Tedesco · filed 1999-03-05(1), (2)

Furthermore, the sound recordings are not a work for hire under the second part of the statute because they do not fit within any of the nine enumerated categories, and because there was no signed written agreement between the parties.

Section 101 defines a derivative work as a work based on a preexisting work that may be recast, transformed, or adapted, including original modifications.

Codespoti & Associates, P.C. v. Bartlett · filed 1999-03-29

a work based upon one or more preexisting works, such as a translation, musical arrangement, fíctionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adopted.

Section 101 defines a joint work by the authors' intention to merge their contributions into inseparable or interdependent parts of a unitary whole.

BTE v. Bonnecaze · filed 1999-04-07

The Court feels that it is necessary to once again set forth the applicable law on this copyright issue. The Copyright Act defines a “joint work” as “a work . prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” 17 U.S.C. § 101 (1994).

Section 101 treats test forms assembled through original selection and arrangement as compilations entitled to copyright protection.

Educational Testing Service v. Simon · filed 1999-04-12

The MSAT forms were assembled by ETS employees through a variety of judgmental decisions, entitling ETS to copyrights in each form as a whole.

Section 101 protects a compilation's original selection and arrangement of otherwise unprotectable facts.

Cantor v. NYP Holdings, Inc. · filed 1999-06-02

Plaintiff therefore does have a valid copyright covering his selection and arrangement of the photos and captions in the Book.

Section 101 excludes utilitarian aspects of a useful article from copyright protection.

Pickett v. Prince · filed 1999-06-18

Such utilitarian aspects are outside the protection of copyright law.

Section 101(e)'s compulsory-license reference applies only to using a copyrighted musical composition, not to duplicating a protected sound recording.

United States v. Bodin · filed 1974-05-07(e)

The 1971 amendment to the Copyright Act retains compulsory licensing of musical compositions but it does not extend compulsory licensing to sound recordings. Shaab v. Kleindienst, supra. The reference in § 101(e) to the compulsory license provisions of the Act pertains only to the use of a copyrighted musical composition, and not to the duplication of protected sound recordings.

Section 101(e)'s compulsory license provisions can cover duplication of recordings fixed before February 15, 1972, that reproduce copyrighted musical compositions.

Jondora Music Publishing Co. v. Melody Recordings, Inc. · filed 1973-06-28(e)

Defendants’ use is either a “similar” use and thus they enjoy, as to plaintiffs’ copyrights, the benefits of the compulsory license provisions of § 101(e), as envisaged by Congress in 1971, or, if an “identical” use, as described in Duchess, may not be regarded as infringers at all.

Section 101 treats parties who unite to produce counterfeit copies of copyrighted material as infringers liable for resulting damages.

Celestial Arts, Inc. v. Neyler Color-Lith Co. · filed 1971-11-12

However, the defendants contend that the act of “contracting” with a third party to produce counterfeit copies of copyrighted material does not constitute “infringement” within the meaning of 17 U.S.C. § 101. It is well settled that all parties who unite to produce counterfeit copies of copyrighted material are liable for damages.

Section 101(e) allows copyright owners to recover from participants in unauthorized mechanical reproduction even if they are not manufacturers under § 1(e).

Reeve Music Co. v. Crest Records, Inc. · filed 1959-06-22(e)

The plaintiffs are entitled to recover =against the defendants, not because the defendants may or may not be manufacturers as defined in G. Ricordi & Co. v. Columbia Graphophone Co., supra, but under that part of Section 101(e) of Title 17, U.S.C., which refers to the “remedy of § 101(e)” which “extends to unauthorized manufacturers who could not be sued under § 1(e).”

Section 101(e) treats interchangeable parts such as tapes and record discs as copies of a copyrighted composition, and makes their unauthorized manufacture, use, or sale infringement.

Heilman v. Bell · filed 1978-09-06(e)

This follows since § 101(e) clearly states that “interchangeable parts” such as tapes and record discs are to be considered copies of the copyrighted composition for purposes of copyright infringement.

Section 101 defines “display” as showing a copy of a work directly or through a device or process, and defines public display to include showing it where a substantial number of people outside a family circle and its acquaintances are gathered.

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey · filed 2007-07-20

Public display of a copyrighted work is a right reserved to the copyright owner. 17 U.S.C. § 106(5). The concept of display is defined rather broadly under the statute. “To ‘display’ a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process[.]” 17 U.S.C. § 101. Displaying a work publicly means to “display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered[.]” ... Under the expansive definition of public display, the display of copyrighted images on computers in an office constitutes a public display.

Section 101 defines displaying a work to include showing a copy directly or through a film, slide, television image, or other device or process.

Viper Nurburgring Record LLC v. Robbins Motor Co. LLC · filed 2019-09-09

Each of these acts constitutes a “display” of the photographs. See 17 U.S.C. § 101 (stating that “display” includes any showing of a “copy” of the work “either directly or by means of a film, slide, television image, or any other device or process”).

Section 101(e) treats unauthorized manufacture, sale or use of mechanical reproductions of a copyrighted work as infringement.

Rosette v. Rainbo Record Manufacturing Corporation · filed 1973-02-26(e)

Under the Copyright Law when a copyrighted work is reproduced mechanically it is protected, 17 U.S.C. § 1(e), and unauthorized manufacture, sale or use constitutes infringement of the copyright (17 U.S.C. § 101(e)).

Section 101(d) authorizes remedial control over infringing copies, and the court applied it to permit removal or blocking of infringing material instead of destroying the publications.

Foreign Car Parts, Inc. of New England v. Auto World, Inc. · filed 1973-12-06(d)

Therefore, in lieu of destruction of the infringing publications, 17 U.S.C. § 101(d), Defendant will be ordered to remove or otherwise completely block out the infringing material in catalogs and flyers in Defendant’s possession or control.

Section 101 treats copying copyrighted abridged architectural floor plans, including plans derived from a full set of architectural drawings, as infringement.

Herman Frankel Organization v. Tegman · filed 1973-12-18

The admitted act, by defendants Ager, Ager Building Company and Carroll, of copying copyrighted, abridged floor plans alone (Civil Action 74-70118), and as they represent a “derivative work” of the full set of architectural plans (Civil Action 40093), constitutes a violation of the Copyright Act, 17 U.S.C. § 101.

Section 101(d) permits the court to order infringing copies and molds used to produce them delivered for destruction.

L & L White Metal Casting Corp. v. Joseph · filed 1975-01-15(d)

Judgment should be entered against the defendants, Max Marcus, individually and d.b.a. Aetna Casting Co., and Aetna Casting Corp., in the amount of $26,750 and (1) permanently enjoining them from manufacturing or selling any of the nine infringing castings and from using the seven infringing photographs, and (2) ordering them, pursuant to 17 U.S.C. § 101(d), to deliver up for destruction all copies of the nine infringing castings and any and all molds in their possession now used for producing the same.

Under the 1909 Copyright Act, § 101(b) permits an additional statutory damages award when an element of damages cannot be measured at trial.

Roy Export Co. Establishment v. Columbia Broadcasting System Inc. · filed 1980-12-17(b)

A statutory damage award is therefore appropriate. ... This amount serves the statutory purpose of granting additional relief when an element of damages is incapable of actual ascertainment at trial while avoiding an indiscriminate application of the multiplier which could, especially in light of the total verdict in this case, lead to a “ridiculous and injurious award.”

Section 101 permits a court to award up to $5,000 in damages when actual damages or the infringer’s profits cannot be accurately determined.

Bell v. Pro Arts, Inc. · filed 1973-10-02

17 U.S.C.A. § 101 provides, in effect, that where actual damages to the copyright proprietor and/or , profits accruing to the infringer, as a result of infringing conduct, are not ascertainable with accuracy or precision, as here, the trial court has discretionary authority to award damages in lieu of actual damages up to and including $5000.

Section 101(b) permits an award under the “in lieu” clause for damages that cannot be proved with legal certainty even when the infringer’s profits are known, but proven profits cannot be assessed under that clause.

F. W. Woolworth Co. v. Contemporary Arts, Inc. · filed 1951-12-26(b)

It is true that the defendant by showing its gross profits, which the plaintiff does not dispute and with which the defendant appears to be content, has made clearly erroneous the district court’s finding that profits cannot be determined with legal certainty. Thus any assessment of profits under the “in lieu” clause is precluded. However, deducting profits, which must be taken as $899.16, from the gross award of $5,000, leaves $4,100 and odd cents attributable to damages. Since this is not an irrational amount to award as damages, and the gross award is within the statutory limits, the assessment is not to be disturbed on appeal.

Section 101(d) permits the United States to seek destruction of infringing copies and equipment without owning the infringed copyrights.

United States v. Brown · filed 1975-09-17(d)

Based upon the above statutory language and an examination of the case law submitted by the plaintiff in support of these contentions, this Court is of the opinion that the United States may bring this action under Section 101(d) for the destruction of infringing paraphernalia, and, under the facts of this case, is entitled to the relief sought herein.

Section 101(e) prohibits unlawful copying of copyrighted works, rather than copyrighted sound recordings.

United States v. Joe Linden Blanton · filed 1976-04-19(e)

The reference to 17 U.S.C. § 101(e) was in error. Section 101(e) prohibits the unlawful copying of copyrighted works, as contrasted to copyrighted sound recordings. It is 17 U.S.C. § 1(f) which affords protection to copyrighted sound recordings.

Section 101 includes maps within the category of pictorial, graphic, and sculptural works.

Del Madera Properties v. Rhodes & Gardner, Inc. · filed 1987-06-23

The Tentative Map itself falls within the category of pictorial, graphic, and sculptural works. ... “ ‘Pictorial, graphic, and sculptural works’ include two-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models.” 17 U.S.C. § 101.

Section 101 includes three-dimensional works of fine art within the subject matter of copyright.

Gladstone v. Hillel · filed 1988-08-15

The Copyright Act of 1976 covers “pictorial, graphic, and sculptural works” which are defined to include “three-dimensional works of fine . . . art.” (17 U.S.C. §§ 101, 102(a)(5); see also 37 C.F.R. § 202.19(c)(6) (1987).)

Section 101 recognizes photographs as works of authorship that may qualify as copyrightable subject matter.

Playboy Enterprises, Inc. v. Starware Publishing Corp. · filed 1995-05-08

As acknowledged by this Court’s September 19, 1994, Order, "photographs” are one of the works of authorship that the copyright statute explicitly defines as proper subject matter. 17 U.S.C. §§ 101, 102(a)(5).

Section 101 treats maps as pictorial, graphic, and sculptural works that can be protected if they are original and sufficiently creative.

Pebble Beach Co. v. Tour 18 I, Ltd. · filed 1996-11-06

Maps may be protectable pursuant to the Copyright Act as “pictorial, graphic and sculptural works”, 17 U.S.C. § 101, provided the work is original and possess adequate creativity. ... In the instant case, the Bestor and Connor maps possess sufficient creativity to merit copyright protection.

Section 101 treats a work such as computer software as copyrightable when the intellectual work is created, rather than only after registration.

In Re Avalon Software Inc. · filed 1997-06-06

This court holds that a product to which a copyright attaches, such as computer software, acquires its character as “copyrightable” when the. intellectual work is created. 17 U.S.C. §§ 101, 201(a).

Section 101 includes pamphlets such as the county's informational publications within the subject matter eligible for copyright protection.

Opn. No. · filed 1997-11-25

A pamphlet, such as those described above, falls within the scope of subject matter that can be copyrighted.

Section 101's copyright-subject-matter framework does not encompass the trade dress as a whole when the court finds it incapable of copyright protection.

Mud Pie, LLC v. Belk, Inc. · filed 2019-07-18

Applying a plain reading of the above, and 17 U.S.C. § 101, the Court does not find that Mud Pie’s Trade Dress as a whole is capable of copyright protection, thereby failing the first preemption prong.

For copyright preemption purposes, jewelry falls within the Copyright Act's subject matter as a work covered by the Act.

Adina's Jewels Inc. v. Shashi, Inc. · filed 2020-02-27

Adina does not—and indeed, cannot—dispute that the subject matter requirement is met in this case. Jewelry falls within the purview of the Act, as has been held by other courts in this district.

Section 101 permits copyright protection for lace designs as fabric designs even though dress designs are not copyrightable.

Eve of Milady v. Impression Bridal, Inc. · filed 1997-03-18

Because lace designs are a form of fabric designs, I find that plaintiffs’ lace designs are copyrightable.

Section 101(e) makes record piracy subject to criminal prosecution under § 104.

United States v. Taxe · filed 1978-05-22(e)

The legislative intent behind the Sound Recording Act of 1971 was to eliminate record piracy. To this end 17 U.S.C. § 101(e) was amended to allow for criminal prosecution under 17 U.S.C. § 104.

Section 101(b) limits recovery of an infringer’s profits to the portion attributable to the infringement.

Lottie Joplin Thomas Trust v. Crown Publishers, Inc. · filed 1977-05-26(b)

Plaintiff, however, is not entitled to this entire amount because the statute limits recovery to those profits “which the infringer shall have made from [the] infringement.”

Section 101(e) treats interchangeable parts such as tapes and record discs as copies of the copyrighted composition, and unauthorized manufacture, use, or sale of them constitutes infringement.

Heilman v. Bell · filed 1978-10-05(e)

Since § 101(e) clearly states that "interchangeable parts" such as tapes and record discs are to be considered copies of the copyrighted composition for purposes of copyright infringement. § 101(e) further provides that the "unauthorized manufacture, use, or sale of such interchangeable parts shall constitute an infringement of the copyrighted work."

Section 101 does not make a privately created reference work uncopyrightable merely because the government incorporates it into statutes or regulations for required use.

Practice Management Information Corp. v. American Medical Ass'n · filed 1994-12-08

The Copyright Act denies copyright protection only for statutes and judicial opinions originally created by the federal government or its officials. 17 U.S.C. §§ 101, 105. ... Thus, a federal agency’s incorporation of a privately developed reference work as required use when participating in a government program does not destroy the copyright for that work. ... The CPT does not prescribe the conditions under which a particular medical service is subject to reimbursement. ... The CPT does not sound like, look like nor act like a law. ... Based upon the foregoing, this Court rejects PMIC’s claim that the AMA consented to the government’s adoption of the CPT as law and finds that the CPT is not a “law”, the CPT is entitled to copyright protection, and grants the AMA’s Motion for Summary Judgment on this ground.

Section 101 defines a government work as one prepared by a United States Government officer or employee as part of that person's official duties; a privately produced commissioned work is not a government work on that basis.

Schnapper v. Foley · filed 1979-06-08

A government work is defined in 17 U.S.C. § 101 as “a work prepared by an officer or employee of the United States Government as part of that person’s official duties.” ... However, this particular work was not created by government employees as part of their official duties.

Section 101 defines a work of the United States by reference to preparation by a government employee as part of that employee’s official duties, so a work federally commissioned from a private contractor is not necessarily a government work.

Schnapper v. Foley · filed 1981-10-01

The statute defines a “work of the United States” as one “prepared by ... an employee of the United States Government as part of that person’s official duties.” 17 U.S.C. § 101 (Supp. I 1977). It is readily observable, therefore, that the language of the new Copyright Act does not prohibit copyright protection for federally commissioned works.

Section 101’s definition of a work of the United States Government requires the relevant expression to have been prepared by a federal officer or employee as part of that person’s official duties; the court found no evidence that the standards’ language met that definition.

Am. Soc'y for Testing & Materials v. Public.Resource.Org, Inc. · filed 2018-07-17

In any event, given PRO submitted no evidence that specific language in any of the works was “prepared by an officer or employee of the United States Government as part of that person’s official duties,” 17 U.S.C. § 101 (defining “work of the United States Government”), the argument is meritless.

Section 101 treats a work as published only when copies or phonorecords are distributed to the public, so a recording that was not distributed was not a publication.

Universal City Studios, Inc. v. Sony Corp. of America · filed 1979-12-05

The present proceeding is not a parody case, and, since there has been no distribution, there has been no publication. 17 U.S.C. § 101.

Section 101 defines publication as distributing copies of a work to the public by sale or transfer of ownership, or by rental, lease, or lending; temporary distribution followed by retrieval does not constitute publication.

National Conference of Bar Examiners v. Multistate Legal Studies, Inc. · filed 1980-07-31

Counter-plaintiff next contends that the Multistate Bar Examination is an “unpublished” work, with which we agree. 17 U.S.C. § 101 defines “publication” as the distribution of copies of a work to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” The tests in this case are temporarily distributed to the persons taking them and are retrieved at the end of the testing period. There is no sale or other transfer of ownership, and the “lending” is at most a fiction.

Section 101 defines publication to include distributing copies to the public and offering copies to a group for further distribution.

Conner v. Mark I, Inc. · filed 1981-03-18

A general publication, on the other hand, is defined as the “distribution of copies . .. of a work to the public by sale or other transfer of ownership .... The offering to distribute copies to a group of persons for further distribution . .. constitutes publication.” 17 U.S.C. § 101. When a general publication has been found, the creator is looked upon as having made his work available in such a manner as to suggest that any interested person could, if he so wished, have a copy.

Section 101 defines publication to include offering copies to a group for further distribution.

Kinstler v. Saturday Evening Post Co. · filed 1981-02-23

The offering to distribute copies ... to a group of persons for purposes of further distribution ... constitutes publication.

Section 101 defines publication as distributing copies of a work to the public and creation as fixing a work in a copy for the first time.

United States v. Stevens · filed 1982-07-19

“Publication” is defined as “the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. ...” “A work is ‘created’ when it is fixed in a copy ... for the first time. .. . ” 17 U.S.C. § 101. A work obviously cannot have been “published” unless it has already been “created.”

Section 101 defines publication to include distributing copies to the public by sale or other transfer, rental, lease, or lending, and treats an offer to distribute for further distribution, public performance, or public display as publication; a public performance or display alone is not publication.

Original Appalachian Artworks, Inc. v. The Toy Loft, Inc. · filed 1982-09-03

A public performance or display of a work does not of itself constitute publication.

Section 101 defines publication to include distributing copies to the public by sale or other transfer of ownership, while a public performance or display alone is not publication.

Original Appalachian Artworks, Inc. v. Toy Loft, Inc. · filed 1982-09-03

A public performance or display of a work does not of itself constitute publication.

Section 101’s definition of publication does not treat filing a report with the FCC and making the application available for public inspection as publication.

WPOW, Inc. v. MRLJ ENTERPRISES · filed 1984-03-15(c)

The filing of that report with the FCC, and the action of the FCC in allowing public access to the application for inspection do not constitute publication.

Section 101 treats an offer to distribute copies as a publication only when it is made to persons for further distribution, public performance, or public display.

NBC Subsidiary (KCNC-TV), Inc. v. Broadcast Information Services, Inc. · filed 1988-12-21

The legislative history makes it clear that Congress intended to require that in order for an offering to distribute copies to be considered a publishing that it must be made to persons for one or more of the listed purposes.

Section 101's publication rule did not make filing or distributing these architectural plans to permitting authorities and subcontractors a general publication.

Intown Enterprises, Inc. v. Barnes · filed 1989-02-02

Therefore, the court concludes that no notice of copyright was required because there was no general publication of plaintiffs architectural plans.

Filing architectural plans with a local administrative board is not a publication under § 101.

East/West Venture v. Wurmfeld Associates, P.C. · filed 1989-10-11

Although a notice of copyright becomes necessary when a protected work is “published,” 17 U.S.C. § 401(a), the filing of the Wurmfeld Plans with the Fort Lee Board is insufficient to constitute a publication under 17 U.S.C. § 101.

Section 101 does not treat placing a work in a public file where it is available for inspection as publication, at least after January 1, 1978, because the work has not been distributed.

New Era Publications International, Aps v. Henry Holt and Company, Inc. · filed 1989-04-19

To be sure, the act of placing a “work” in a public file where it is available for inspection is not a publication under 17 U.S.C. § 101, at least after January 1, 1978, ... because the work has not been distributed.

Section 101 defines publication as distribution of copies of a work to the public; distribution to persons under explicit or implicit restrictions on disclosure is not publication.

Lish v. Harper's Magazine Foundation · filed 1993-01-07

The Copyright Act defines “publication” as “distribution of copies ... of a work to the public....” 17 U.S.C. § 101. Although the term “public” is not defined in the Act, the House Report explains that “the public” in this context refers to persons “under no explicit or implicit restrictions with respect to disclosure of its contents.” ... “Publication” thus turns on the question whether there were “implicit restrictions” on further distribution or disclosure of the document’s contents. Here, the case is very strong that restrictions on further distribution of the Letter existed.

Section 101's definition of publication means that a secure test remains unpublished as long as it remains secure, when read with the regulation defining a secure test.

College Entrance Examination Board v. Pataki · filed 1995-06-09

The court need not spend much time discussing this factor. With respect to the State’s first argument that the moving plaintiffs’ tests should be considered published, the court disagrees for the same reasons cited in its previous decision in this matter. To reiterate, “[w]hen 37 C.F.R. section 202.20’s definition of a secured [sic] test is read in conjunction with 17 U.S.C. section 101’s definition of publication, there is only one conclusion — as long as the test remains secure, it is unpublished.”

Section 101 defines publication as distributing copies of a work to the public by sale or other transfer of ownership, and provides that a public performance or display alone is not publication.

Judith Ripka Designs, Ltd. v. Preville · filed 1996-01-26

.17 U.S.C. § 101 defines publication as “the distribution of copies ... of a work to the public by sale or other transfer of ownership.” The definition goes on to note that “a public performance or display of a work does not of itself constitute publication." 17 U.S.C. § 101.

Section 101's publication definition includes offering copies for further distribution, public performance, or public display, while a performance alone is not necessarily publication.

Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. · filed 1998-07-22

Ordinarily the public performance of a work is not in itself regarded as a publication. 17 U.S.C. § 101. Case law distinguishes between the performance of a work and other means of dissemination. ... Accordingly, this court holds that while performance itself may not be sufficient to constitute publication, performance coupled with such wide and unlimited reproduction and dissemination as occurred concomitant to Dr. King’s speech during the March on Washington can be seen only as a general publication which thrust the speech into the public domain.

Under § 101, a public performance that makes a computer program public does not itself constitute publication.

Gates Rubber Co. v. Bando American, Inc. · filed 1999-01-25

Even if this is termed a public performance which makes the program public, there is little doubt that such performance does not amount to a publication under § 101 of the Copyright Act.

Section 101 defines publication as distributing copies or phonorecords to the public, while a public performance or display alone is not publication.

ABC, Inc. v. PrimeTime 24, Joint Venture · filed 1999-09-03

the distribution of copies or phonorec-ords 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 further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not itself constitute a publication.

Section 101 defines publication as distributing copies to the public or offering them for further distribution or display; the court applied that definition to architectural plans submitted to public authorities.

John G. Danielson, Inc. v. Winchester-Conant Properties, Inc. · filed 2002-02-27

Under these facts as applied to the statutory definition of publication, Danielson’s case against publication would appear weak.

Section 101's publication definition treats sale, rental, and distribution of films for money as publication under the 1976 Copyright Act.

Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. · filed 2002-08-23

Sale, rental, and distribution of films for money all constitute “publication” under both the 1909 and the 1976 Acts.

Section 101 treats a work as published only when copies are distributed or offered to the public with the copyright owner's authority; an infringer's unauthorized distribution does not itself publish the work.

Zito v. Steeplechase Films, Inc. · filed 2003-01-30

“Publication” of a copyrighted work is the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. .. [or] offering to distribute copies... to a group of persons for purposes of further distribution, public 'performance, or public display. 17 U.S.C. § 101. Even though this definition does not explicitly require that the distribution of a copyrighted work be made under the authority of the copyright owner for a distribution to constitute publication, “[t]his, however, is undoubtedly implied. Congress could not have intended that the various legal consequences of publication under the current Act would be triggered by an unauthorized act of an infringer or other stranger to the copyright.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 4.04 at 4-22 to 4-23 (2002).

Section 101 defines publication to exclude a public performance or display standing alone.

John G. Danielson, Inc. v. Winchester-Conant Properties, Inc. · filed 2003-03-06

Rather, Danielson merely "displayed" the drawings within the meaning of the Act. The Copyright Act states outright, "A public performance or display of a work does not of itself constitute publication." 17 U.S.C. § 101.

Section 101 defines publication as distributing copies of a work to the public by sale, transfer, rental, lease, or lending, while a public performance or display alone is not publication.

Bouchat v. Champion Products, Inc. · filed 2003-08-22

“Publication” is defined in the Copyright Act as “the distribution of copies... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending... a public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101. ... There is no evidence that Plaintiff restricted any of the recipients of his drawing as to their use thereof. ... In sum, if the matter were not moot, the Court would grant summary judgment to the Downstream Defendants on the issue of Plaintiffs December 1995 publication of the Shield Drawing. Accordingly, statutory damages are not available for any preregistration infringement.

Section 101 defines publication as distributing copies or phonorecords of a work to the public by sale, transfer of ownership, rental, lease, or lending.

Computer Associates International v. Quest Software, Inc. · filed 2004-06-28

The 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.” 17 U.S.C. § 101. It is unlikely that confidentially giving one copy to another company would constitute distribution of the code to the “public.”

Section 101’s definition of “publication” covers public distribution by sale, transfer of ownership, rental, lease, or lending, and publication requires action by the author or someone authorized by the author.

Cipes v. Mikasa, Inc. · filed 2004-11-30

“Publication” is defined 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.” 17 U.S.C. § 101. ... In short, only the author (and those authorized by him or her) can cause a work to be published. ... Thus, an unauthorized distribution will not create a “published” work for purposes of 37 C.F.R. § 202.3(b).

Section 101 defines publication to include actual public distribution of copies or phonorecords, or an offer to distribute them for further distribution, public performance, or public display.

In Re Napster, Inc. Copyright Litigation · filed 2005-05-31

Specifically, the Act provides that publication of copyrighted work requires either "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," or alternatively, "[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display." 17 U.S.C. § 101. There can be no serious dispute that the first of these two provisions requires the actual transfer of a copy of a copyrighted work. Accord H.R.Rep. No. 94-1476, at 138 ("[A] work is `published' if one or more copies or phonorecords embodying the work are distributed to the public.... [A]ny form or dissemination of the work in which a material object does not change hands ... is not a publication no matter how many people are exposed to the work."). Moreover, while the latter provision might be read to support Hotaling 's view that an offer to distribute a copyrighted work constitutes publication (and hence distribution) of that work, the plain meaning of the statute strictly limits the circumstances under which that holds true to those in which "further distribution, public performance, or public display" of the work is contemplated. 17 U.S.C. § 101.

Section 101 treats a work as published when copies are distributed or offered for distribution to the public, and defines copies as material objects in which the work is fixed and can be perceived, reproduced, or communicated.

Kay Berry Inc v. Taylor Gifts Inc · filed 2005-08-30

“‘Publication’ is the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” 17 U.S.C. § 101. “‘Copies’ are material objects . . . 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 . . . .” Id. Therefore, under these definitions, a copy of Sculpture No. 646 was published in the Catalog.

Section 101 defines publication and copies, and a catalog copy of Sculpture No. 646 qualified as a published copy under those definitions.

Kay Berry, Inc. v. Taylor Gifts, Inc. Bandwagon, Inc · filed 2005-08-30

Therefore, under these definitions, a copy of Sculpture No. 646 was published in the Catalog.

Section 101 limits publication by an offer for sale to situations where further distribution, public performance, or public display is contemplated.

Arista Records LLC v. Greubel · filed 2006-09-01

The statute expressly limits the reach of publication by way of an offer for sale to situations where further distribution, public performance, or public display is contemplated.

Section 101 defines “publication” as distributing copies of a work to the public by sale or other transfer of ownership, rental, lease, or lending.

Yurman Studio, Inc. v. Castaneda · filed 2008-08-19

“‘Publication’ is the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”

Section 101 defines publication more broadly than the § 106(3) distribution right, so an offer to distribute for further distribution, public performance, or public display may be a publication without being an actual distribution.

Capitol Records, Inc. v. Thomas · filed 2008-09-24

The Court concludes that simply because all distributions within the meaning of § 106(3) are publications does not mean that all publications within the meaning of § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in § 106(3).

Section 101 treats a work as published when copies are first offered for sale, and also defines publication to include specified offers to distribute copies to a group.

Sarl Louis Feraud International v. Viewfinder Inc. · filed 2008-12-19

The Copyright Act defines publication as “[t]he distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” and specifies that "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” 17 U.S.C. § 101. To the extent that plaintiffs are relying on the Act's definition of "publication,” plaintiffs’ designs would have their first appearance when they are first offered for sale.

Section 101 defines publication to include both distribution of copies to the public and offers to distribute copies for further distribution, but that definition does not make every publication a distribution under § 106(3).

Atlantic Recording Corp. v. Howell · filed 2008-04-29

A plain reading of the statute indicates that a publication can be either a distribution or an offer to distribute for the purposes of further distribution, but that a distribution must involve a “sale or other transfer of ownership” or a “rental, lease, or lending.”

Section 101 provides that a performance does not by itself constitute publication of a work.

Kuklachev v. Gelfman · filed 2009-02-26

Defendants claim that plaintiffs’ 2005 and 2006 performances, including their storylines, tricks, scene layout, background decorations and costumes, were ‘published’ in the United States, by virtue of being performed in the United States. This interpretation is contradicted by the clear language of the DMCA, which states that performance does not constitute publication. 17 U.S.C. § 101.

Section 101 defines publication to include distributing copies to the public or offering them to a group for further distribution or public display, while a display alone is not publication.

R.F.M.A.S., Inc. v. Mimi So · filed 2009-05-13

the distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... to a group of persons for purposes of further distribution ... or public display, constitutes publication. A ... display of a work does not of itself constitute publication.

Section 101 treats a work as published when copies are distributed to the public by sale or other transfer, rental, lease, lending, or offered to a group for further distribution.

Olander Enterprises, Inc. v. Spencer Gifts, LLC · filed 2011-08-25

A work is “published” for purposes of the Copyright Act when copies of the work are distributed to the public “by sale or other transfer of ownership, or by rental, lease or lending” or offered to be distributed “to a group of persons for purposes of further distribution.” 17 U.S.C. § 101.

Section 101 treats offering copies of a work to a group of persons for purposes of further distribution as publication.

L.A. Printex Industries, Inc. v. Aeropostale, Inc. · filed 2012-01-12

“The offering to distribute copies [of a work] . . . to a group of persons for purposes of further distribution . . . constitutes publication” under the Copyright Act. 17 U.S.C. § 101.

Section 101 treats a work as published when copies are distributed to the public by sale or other transfer, including the sale of fabric bearing a design before registration.

Family Dollar Stores, Inc. v. United Fabrics International, Inc. · filed 2012-09-11

It is undisputed that UFI published the Mod Squad design by selling it before the effective date of registration of the unpublished collection at issue.

Section 101 defines a work as unpublished under the statutory definition, but that definition does not by itself control the publication inquiry in a fair-use analysis.

Swatch Group Management Services, Ltd. v. Bloomberg L.P. · filed 2014-01-27

Swatch is unquestionably correct that the earnings call is unpublished under the definition of “publication” set forth in § 101. But that technical definition does not control our analysis of this aspect of the second fair use factor. While we will consider the statutory definition, we also will not blind ourselves to the fact that Swatch Group invited over three hundred investment analysts from around the globe to the earnings call, out of which over a hundred actually attended. Thus, even though the sound recording remains statutorily unpublished, it is clear that Swatch was not deprived of the ability to “control the first public appearance of [its] expression,” including “when, where, and in what form” it appeared.

Section 101 defines publication as distributing copies or phonorecords of a work to the public by sale, transfer, rental, lease, or lending, and publication is a one-time event occurring when the work is first made publicly available.

Baldwin v. EMI Feist Catalog, Inc. · filed 2015-10-08

As relevant here, the statute 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.” 17 U.S.C. § 101. As § 203 itself suggests, the publication of a work is a one-time event.

Section 101 treats the transfer of a digital copy pursuant to a license as a distribution, and licensing and delivering the work in anticipation of further distribution can therefore constitute publication.

Archie MD, Inc. v. Elsevier, Inc. · filed 2017-08-20

“Publication” is 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. 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. ... The Court, however, concludes that Archie’s licensing and delivery of the Work to Elsevier pursuant to the ALA satisfies the “distribution” prong. The transfer of a digital copy of a work may amount to distribution and therefore publication. ... While Elsevier had not yet undertaken further distribution of the Work at the time Archie sought registration, the initial transfer of a copy in anticipation of further distribution may nonetheless amount to publication.

Section 101 treats a work as published when copies are distributed to the public by sale or transfer of ownership; the court held that selling the fabric to customers therefore constituted publication.

Gold Value Int'l v. Sanctuary Clothing, LLC · filed 2019-06-04

A work is published for purposes of the Copyright Act when copies are distributed “to the public by sale or other transfer of ownership, or by rental, lease, or lending” or offered to be distributed “to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101. ... It is undisputed that Fiesta sold 190 yards of fabric bearing the 1461 Design before registering its copyright. Because the 1461 Design was distributed “to the public by sale or other transfer of ownership,” it was published within the meaning of the Copyright Act. 17 U.S.C. § 101; see also Compendium II § 905.02 (publication includes distribution to “persons who are under no implied or express restriction with respect to disclosure of the work’s contents”).

Section 101 treats offering copies to a group for further distribution as publication; including the designs in sales books therefore published them.

Urban Textile, Inc. v. Rue 21, Inc. · filed 2019-03-21

The district court properly concluded that the inclusion of the subject designs in Urban’s Look Books constituted “publication” under the Copyright Act.

Section 101 defines publication as distributing copies or phonorecords to the public or offering them for further distribution, public performance, or public display; a public performance or display alone is not publication.

Bruhn Newtech, Inc. v. United States · filed 2019-09-24

[T]he distribution 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.

Section 101 treats a work as published when copies are distributed to the public or offered to a group for further distribution.

King-Devick Test Inc. v. NYU Langone Hospitals · filed 2019-07-15

Under the Copyright Act, a work is “published” if copies ... have been distributed “to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or if copies have been offered “to a group of persons for purposes of further distribution.”

Section 101 defines publication to include distributing copies to the public and offering copies to a group for further distribution, performance, or display, but a public performance or display alone is insufficient.

Berio-Ramos v. Flores-Garcia · filed 2020-05-28

“Publication” is defined 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. 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. ... Because the only evidence of any acts of publication are Berio’s testimony and her distribution of the Questionnaire and Checklist Guideline booklets at the 2008 Congress, the court assumes that she published her work at some point between April 16-18, 2008.

Section 101 defines publication as the initial distribution or offering to distribute a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Unicolors, Inc. v. H&M Hennes & Mauritz, Lp · filed 2020-05-29

“Publication” under the Copyright Act is defined as the initial “distribution” or “offering to distribute” the “work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 101.

Section 101 defines publication to include distributing copies or phonorecords to the public and offering them to a group for further distribution, public performance, or public display; an offer to sell to the public is not necessarily a distribution.

Ray Henderson Music Co Inc v. Amazon.com Inc · filed 2020-06-12

The Copyright Act does not define publication to include any offer to distribute but only offers “to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” In re Napster, Inc. Copyright Litig., 377 F. Supp. 2d 796, 803 (N.D. Cal. 2005) (quoting 17 U.S.C. § 101).

Section 101 defines publication to include an offer to distribute copies or phonorecords to a group for further distribution, public performance, or public display, making publication broader than distribution.

Four Jays Music Company v. Amazon.com Inc · filed 2020-06-12

The second part of this definition expands the definition of publication beyond the definition of distribution.

Section 101 defines publication to include an offer to distribute copies or phonorecords to a group for further distribution, public performance, or public display, making publication broader than distribution.

SA Music LLC v. Amazon.com Inc · filed 2020-06-12

The second part of this definition expands the definition of publication beyond the definition of distribution.

Section 101 defines publication as distributing copies of a work to the public by sale, transfer, rental, lease, or lending, and provides that publicly displaying a work alone is not publication.

Feingold v. RageOn, Inc. · filed 2020-07-15

Under the Copyright Act, “publication” means “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending”; critically, “[a] public . . . display of a work does not of itself constitute publication.” 17 U.S.C. § 101.

Section 101 treats an offering to distribute copies or phonorecords to a group for purposes of further distribution, public performance, or public display as publication.

Fischer v. Forrest · filed 2020-08-04

The relevant statute states that “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.” 17 U.S.C. § 101. Even on Fischer’s account, the catalogues were printed and shipped prior to his registration of the copyright.

Section 101 treats offering to distribute copies or phonorecords to a group of persons for public performance as publication; distributing the script to independent contractors for that purpose therefore published it.

Goode Time Productions, LLC v. Just · filed 2020-09-14

“The offering to distribute copies or phonorecords to a group of persons for purposes of . . . public performance . . . constitutes a publication.” 17 U.S.C. § 101; see also Bagdadi v. Nazar, 84 F.3d 1194, 1198–99 (9th Cir. 1996) (holding that a video was published once it was offered to a single school for use in its public classrooms). Goode Time does not dispute that its independent contractors constitute a group of persons. Nor does Goode Time dispute that it distributes its script to its independent contractors so they can publicly perform the bits and routines contained therein. Because Goode Time has distributed its script to a group of persons for the purpose of public performance, Goode Time’s script has been published within the meaning of the Copyright Act.

Section 101 defines publication as distributing copies of a work to the public by sale or other transfer, rental, lease, or lending, and says that a public performance or display alone is not publication.

INTERNET PRODUCTS, LLC v. LLJ ENTERPRISES INC. · filed 2020-11-24

Under the Copyright Act, publication is a technical term and is defined as the “distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 101. However, the definition also notes that “[a] public performance or display of a work does not of itself constitute publication.” Id. (emphasis added). ... Absent binding law or even a clear consensus in case law supporting the assertion that material is “published” merely because it is posted online, the Court is not inclined to negate the copyrighted material’s presumption of validity by finding that Plaintiff’s text was “published” when it was posted on the webpage. Therefore, the Court cannot conclusively find that Plaintiff was dishonest when it stated that the text was “unpublished” when it submitted its application to the Copyright Office. Accordingly, the Court rejects this argument.

Section 101's definition of publication implicitly requires authorization by the copyright owner, so an infringer's unauthorized distribution does not constitute publication.

Chambers v. Green-Stubbs · filed 2021-01-12

Thus, a defendant’s alleged acts of infringement cannot be considered “publication” because the infringement occurred without the consent of the copyright owner and the statute implicitly requires this consent.

Section 101 treats distribution of copies to the public by sale or transfer, or an offer to distribute copies to a group for further distribution, performance, or display, as publication, while a public performance or display alone is not publication.

Hong v. Recreational Equipment Inc · filed 2021-03-04

Publication is defined under the Copyright Act as “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies . . . 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. ... The Court finds the undisputed evidence submitted by Defendants regarding the Blue Canvas publication of Tree Rings to be sufficient to demonstrate publication prior to July 12, 2010.

Section 101 defines publication as distributing copies of a work to the public by sale or other transfer of ownership.

Pacesetter Homes, Inc. v. GBL Custom Home Design, Inc. · filed 2021-08-17

Under the Copyright Act, “publication” is defined as “the distribution of copies . . . of a work to the public by sale or other transfer of ownership.” 17 U.S.C. § 101. Thus, Pacesetter first published the Charlotte Model on or about January 20, 2019.

Section 101 treats an authorized offer to distribute a work to a group of persons for further distribution as publication; offering a photograph to subscribers for licensing qualifies.

O'Neil v. Ratajkowski · filed 2021-09-28

The Copyright Act defines publication in relevant part 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” or “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution[.]” 17 U.S.C. § 101. ... Therefore, Splash’s offering the Photograph to its subscribers for the purposes of licensing, carried out with Plaintiff’s authority, constitutes publication.

Section 101 defines publication to include distributing copies to the public by sale or transfer of ownership, or offering copies to a group for further distribution, public performance, or public display.

Gaffney v. Muhammad Ali Enterprises LLC · filed 2022-09-07

Under the Copyright Act, “publication” occurs when there is a “distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership” or “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” 17 U.S.C. § 101. ... Two instances are clearly publication. It is incontrovertible Gaffney displayed and published by sales to the public the following Photographs at exhibitions held between February 2009 to January 2012: Photographs 101, 107, 109, 112, 118, 117, 121, 122, 124, 125 126. ... It is also indisputable that the Agreement providing Defendants a license to distribute Photographs and the subsequent delivery of the Photographs amounted to publication.

Section 101 treats distributing copies to the public or offering them to a group for further distribution, public performance, or public display as publication, but public display alone is not publication.

Oliver v. Meow Wolf, Inc · filed 2022-08-25

The Copyright Act defines the act of [p]ublication as the distribution of copies ... of a work to the public by sale ... [,] rental, lease, or lending, or the offering to distribute copies ... to a group of persons for purposes of further distribution, public performance, or public display, although [a] public performance or display of a work does not of itself constitute publication. 17 U.S.C. § 101. ... Thus, these works had already been published by the time of registration contrary to the regulatory requirement that all of the works in an unpublished group must be unpublished.

Section 101 treats a work as published when copies are distributed or offered to the public and as fixed when its embodiment is sufficiently permanent or stable to be perceived, reproduced, or communicated for more than a transitory duration.

Hayden v. 2K Games, Inc. · filed 2022-09-20

The Copyright Act defines publication in relevant part 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 or the offering to distribute copies or phonorecords to a group of persons for purposes of further distribution. 17 U.S.C. § 101. ... The Court finds that the six Tattoos are sufficiently permanent and not transitory. No additional action by the copyright owner is necessary. Therefore, the Court concludes that publication occurred on the date of completion for each of the six works.

Section 101 defines publication as distributing copies to the public by sale or transfer, rental, lease, or lending, and distinguishes foreign works based on first or simultaneous publication in the United States.

Norris v. Goldner · filed 2023-08-24

The Act defines “publication” as the “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease or lending.” 17 U.S.C. § 101. And “‘merely posting a digital file’ on the Internet”—as Norris did here—“does not amount to ‘publication’ under the Copyright Act.” ... Even if the works were considered published, the second exception—for non-U.S. citizens’ foreign works—would likely apply. Defendants have not pointed to evidence on which a jury could find that the works, if published at all, were “first published . . . in the United States” or published “simultaneously in the United States” and elsewhere. 17 U.S.C. § 101.

Section 101 treats a work as published when copies are distributed or offered to the public for further distribution or public display; sharing with a selected group for limited examination without redistribution rights is not publication.

Philpot v. Independent Journal Review · filed 2024-02-06

A work is “published” under the Copyright Act through “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.” 17 U.S.C. § 101. “The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution . . . or public display, constitutes publication.” Id. ... This is instead a classic case where Philpot offered to share his work with AXS TV, a “definitely selected” group, for the “limited purpose” of its examination and review, without any right to further distribution. ... Therefore, the Agreement did not constitute publication of the Photo.

Section 101 defines publication to include offering copies to a group for further distribution, public performance, or public display, and the court applied that definition to conclude that uploading the videos to Cameo published them.

Santos v. Kimmel · filed 2024-08-19

Pursuant to 17 U.S.C. § 101, “publication” includes “offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display.” Thus, Santos published the Videos when he uploaded them to Cameo.

Section 101 defines publication to include distributing copies to the public by sale or transfer, rental, lease, or lending, and offering copies to a group for further distribution, public performance, or public display.

Rustik Haws, LLC v. Lime Press, LLC · filed 2025-02-12

A work is published for purposes of the Copyright Act when copies are distributed “to the public by sale or other transfer of ownership, or by rental, lease, or lending” or offered to be distributed “to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101. ... Thus, Plaintiff has alleged the certificate of registration was “made . . . within five years after first publication of the work.” See 17 U.S.C. § 410(c).

For fair-use analysis, § 101’s definition of “publication” does not control whether a work is considered public; a public performance or display can be a public appearance without being formal publication.

Whyte Monkee Productions v. Netflix · filed 2026-04-30

We agree with Defendants. The Copyright Act defines “publication,” which appears in various parts of the Act. 17 U.S.C. § 101. The second fair-use factor is not one of those parts. 17 U.S.C. § 107(2) (“the nature of the copyrighted work”). ... But this question does not focus on the statutory definition of publication. ... Although a “public performance or display of a work” is not formal publication, 17 U.S.C. 101, it is a public appearance.

Section 101’s definition of publication includes distributing copies to a single member of the public.

Ford Motor Co. v. Summit Motor Products, Inc. · filed 1991-04-08

Indeed, the statutory definition of “publication” is “the distribution of copies ... of a work to the public by sale or other transfer of ownership,” 17 U.S.C. § 101, a definition which tracks the language of section 106(3). “Publication” and the exclusive right protected by section 106(3), then, are for all practical purposes, synonymous. ... Hence, because “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.

Filing architectural plans with a city for approval does not constitute publication under § 101.

CSM Investors, Inc. v. Everest Development, Ltd. · filed 1994-01-11

The filing of the Everest plans with the City does not constitute a publication under 17 U.S.C. § 101.

Section 101 requires publication to the public; sharing a work with selected recipients for a limited purpose does not qualify as general publication.

RPM Management, Inc. v. Apple · filed 1996-06-21

A limited publication requires both communication of the copyrighted work to a selected group and a limited purpose. If either of these criteria is lacking, the, disclosure constitutes a general publication. ... Similarly, the disclosure of the elevations to Roger Apple did not qualify as a general publication.

Section 101 treats a website and its source code as published when the site becomes accessible on the Internet and users can copy it.

Getaped. Com, Inc. v. Cangemi · filed 2002-02-28

Under this analysis, Getaped did “publish” its website (and, necessarily, the underlying source code) on July 15, 2000, when its modified website first became accessible on the Internet.

Section 101 treats an offer to distribute copies as publication only when further distribution, public performance, or public display is contemplated.

UMG Recordings, Inc. v. Hummer Winblad Venture Partners · filed 2005-05-31

Moreover, while the latter provision might be read to support Hotal-ing’s view that an offer to distribute a copyrighted work constitutes publication (and hence distribution) of that work, the plain meaning of the statute strictly limits the circumstances under , which that holds true to those in which “further distribution, public performance, or public display” of the work is contemplated.

Section 101’s definition of publication does not treat distribution to a broad customer market as a limited publication merely because marketing targets an industry.

Daimler-Chrysler Services North America, LLC v. Summit National, Inc. · filed 2008-08-20

ALAS does not meet this requirement. ALAS was aggressively marketed through mass mailings, solicitations, and advertisements in trade journals. While its marketing may have been somewhat targeted, ultimately ALAS customers included a variety of banks, financial institutions, utilities, and other corporations willing to pay for it. Because ALAS was not provided to a definite, very selective group, the district court properly dismissed SNI’s copyright claim.

Section 101 defines publication and provides that a public display alone does not constitute publication.

McINTOSH v. NORTHERN CALIFORNIA UNIVERSAL ENTERPRISES COMPANY · filed 2009-10-30

17 U.S.C. § 101 defines “publication” as “distribution of copies ... of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies ... 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.” ... Such limited disclosure to comply with California subdivision law and Wasco ordinances does not constitute publication to the “general public” to deprive Mr. McIntosh of copyright protection. ... Mere public display of Tentative Map 5472 and the MM improvement plans does not constitute publication. See 17 U.S.C. § 101.

Section 101 defines publication as distributing copies or phonorecords of a work to the public by sale, transfer of ownership, rental, lease, or lending.

Chicago Building Design, P.C. v. Mongolian House, Inc. · filed 2012-07-31

The statute defines publication using the same language as used in § 106(3) to describe distribution. ... Interpreting distribution as synonymous with publication, it follows that the post-2008 actions complained of by Plaintiffs also do not constitute a distribution under the Copyright Act.

Section 101 defines publication to require public distribution of copies through sale, transfer of ownership, rental, lease, or lending, including an offer to distribute copies to a group for further distribution.

Rogers v. Better Business Bureau of Metropolitan Houston, Inc. · filed 2012-08-15

Accordingly, the court finds that regardless of the licensing arrangement between Plaintiff and Defendant, the court cannot hold, as a matter of law, that the webpages were published unless public distribution occurred. The court’s finding with regard to Defendant’s failure to prove as a matter of law that posting the webpages on the reliabilitymall.com website constituted a distribution at all, rendering the issue of selling or licensing immaterial.

Section 101 defines public performance or display and provides that a public performance or display does not itself constitute publication.

Murakami-Wolf-Swenson, Inc. v. Cole · filed 2014-08-13

The 1976 Act defines “to perform or display a work publicly” to mean “to transmit or otherwise communicate a performance or display of the work to ... the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101. The definition in the 1976 Copyright Act “codifies the rule adopted by the courts under the 1909 Act.” Nimmer on Copyright § 4.08[A] (citations omitted). Thus, the definition of “publication” under the 1909 Copyright Act (as codified in the 1976 Copyright Act) does not encompass the 1971 broadcast of The Point on television by ABC.

For purposes of an infringement claim, a nonexclusive licensee is not a “copyright owner” under § 101.

Burns v. Rockwood Distributing Co. · filed 1979-12-18

In such a case, though, the plaintiff would not be a “copyright owner” under 17 U.S.C. § 101, and accordingly would not have an actionable claim under the Copyright Act.

Section 101 defines a copyright owner, for each exclusive right in a copyright, as the owner of that particular right.

Kamakazi Music Corp. v. Robbins Music Corp. · filed 1982-01-29

“Copyright owner,” with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

Section 101 defines a copyright owner as the holder of any one of the exclusive rights comprised in a copyright.

Fantasy, Inc. v. Fogerty · filed 1987-02-24

a “copyright owner” as the holder of any one of the exclusive rights comprised in a copyright.

Section 101 treats the owner of any one exclusive right in a copyright as a copyright owner, allowing an exclusive licensee to sue over infringement of that right.

Essex Music, Inc. v. ABKCO Music & Records, Inc. · filed 1990-08-01

Under the 1978 Act, the owner of “any one of the exclusive rights comprised in a copyright” is the “copyright owner,” 17 U.S.C. § 101, and such owner “is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it.”

Section 101 treats the owner of a particular exclusive right in a copyright as the copyright owner with respect to that right.

Hung Tang v. Ho Yong Hwang · filed 1992-07-13

As set out in 17 U.S.C. § 101, a “copyright owner,” with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.

Section 101 defines a copyright owner as the owner of any one of the exclusive rights comprised in a copyright.

Herrera-Edwards v. Bernard Edwards Company, LLC · filed 2018-08-07

Under the Copyright Act, a copyright owner is defined as the owner of “any one of the exclusive rights” listed in 17 U.S.C. § 106, which “refers to the owner of that particular right.” See 17 U.S.C. § 101. ... In this case, Mr. Edwards’s estate transferred in part an ownership interest in Mr. Edwards’s composition copyrights to Herrera-Edwards, which did not include administration rights. Id. Instead, the administration rights were carved out and retained by Mr. Edwards’s estate, transferred to the trusts of his six children, and are thus “owned separately” for purposes of the Copyright Act. Id.

Section 101 treats a person who owns at least one exclusive copyright right as a copyright owner.

Ehmann, Eric v. Metropulos, Nicholas · filed 2019-11-19

A “copyright owner” is someone who owns one of the exclusive rights comprised in a copyright, 17 U.S.C. § 101, including the right to copy, record, adapt and publish. 17 U.S.C. § 106.

Section 101 protects a useful article's pictorial, graphic, or sculptural design only when the feature is identifiable separately from and capable of existing independently of the article's utilitarian aspects.

Ochre LLC v. Rockwell Architecture, Planning & Design, P.C. · filed 2013-07-16

The Copyright Act provides protection to “useful article[s],” items that have “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information,” “only if, and only to the extent that, [their] design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. ... The light fixtures in the instant case are plainly useful articles, as they have an “intrinsic utilitarian function” of providing light to a room. 17 U.S.C. § 101; see, e.g., Heptagon Creations Ltd. v. Core Grp. Mktg. LLC, 507 F. App’x 74 (2d Cir. 2013); Aqua Creations USA Inc. v. Hilton Worldwide, Inc., 487 F. App’x 627 (2d Cir. 2012).

Section 101's useful-article definition does not bar copyright protection for a technical drawing whose intrinsic function is merely to convey information.

Infodek, Inc. v. Meredith-Webb Printing Co., Inc. · filed 1993-08-06

Defendant is correct in that the Instructions are useful articles and that copyright denies protection for works that have “an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101 (1993 Supp.). Defendant’s argument is without merit, however, because the intrinsic function of a technical drawing is to convey information, and, by definition, a useful article that conveys information is not subject to the useful article exception.

Section 101 permits copyright protection for a useful-article design or embellishment that can exist independently of the article’s utilitarian aspects.

Parfums Givenchy, Inc. v. C & C Beauty Sales, Inc. · filed 1993-09-01

Section 101 of the Copyright Act provides that “the design of a useful article” or a work of art that embellishes a useful article is copyrightable to the extent that it is capable of existing independently of the utilitarian aspects of the article. 17 U.S.C. § 101; ... The Amarige Box Design is a two-dimensional artistic design, which is physically separable from the utilitarian aspects of Amarige perfume. ... Thus, the issue of conceptual separability does not even arise.

Section 101 excludes a useful article's mechanical and utilitarian aspects from sculptural-work protection, allowing protection only for artistic features identifiable separately from and capable of existing independently of those aspects.

Durham Industries, Inc. v. Tomy Corporation · filed 1980-09-02

The Copyright Act provides that the design of a useful article can be considered a sculptural work “only if, and only to the extent that, such design incorporates . . . sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Section 101 treats a useful article's design as a copyrightable sculptural work only to the extent that its sculptural features can be identified separately from and can exist independently of the article's utilitarian aspects.

Gay Toys, Inc. v. Buddy L Corp. · filed 1981-09-17

“Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. ... The design of the defendant’s Air Coupe toy airplane is not copyrightable subject matter because it is not a sculptural work in accordance with the definition of such work in the Copyright Act. This is so because it is a useful article, and it does not include features that can be identified separately from or are capable of existing independently of the utilitarian aspect of the Air Coupe toy airplane.

Section 101 defines a useful article by its intrinsic utilitarian function and requires artistic features to be separately identifiable and capable of existing independently to receive copyright protection.

Kieselstein-Cord v. Accessories by Pearl, Inc. · filed 1980-05-07

Both buckles are uncopyrightable subject matter under either statute because they fail to satisfy the test of separability and independent existence of the artistic features, which is required under both statutes.

Section 101 allows copyright protection for a useful article’s design when its sculptural features are conceptually separable from and capable of existing independently of its utilitarian aspects.

Kieselstein-Cord v. Accessories by Pearl, Inc. · filed 1980-09-18

The primary ornamental aspect of the Vaquero and Winchester buckles is conceptually separable from their subsidiary utilitarian function.

Section 101 permits copyright protection for a useful article when its sculptural elements are conceptually, even if not physically, separable from its utilitarian elements.

Trans-World Manufacturing Corp. v. Al Nyman & Sons, Inc. · filed 1982-07-16

it would seem that a useful ... article possessing sculptural elements that are conceptually, though not physically, separable from its utilitarian elements is copyrightable.

Section 101 excludes a work’s mechanical or utilitarian function from copyright protection when it cannot be separated from the work’s expressive features; separability and independence are required.

Apple Computer, Inc. v. Franklin Computer Corp. · filed 1982-07-30

Section 101 explicitly excludes those works whose “mechanical or utilitarian” function cannot be separated from the work in which it adheres.

Section 101 treats an article as useful when it has an intrinsic utilitarian function and protects artistic features only when they can be identified separately and exist independently as art.

Fabrica Incorporated, a Corporation v. El Dorado Corporation, a Corporation · filed 1983-01-28

intrinsic utilitarian function, it can be denied copyright protection except to the extent that its artistic features can be identified separately and are capable of existing independently as a work of art.

Section 101 excludes useful articles and industrial designs from copyright protection unless they contain a physically or conceptually separable pictorial, graphic, or sculptural work of art.

Carol Barnhart Inc. v. Economy Cover Corp. · filed 1984-09-12

A utilitarian article is not entitled to copyright and as such industrial design is explicitly excluded from such protection. Furthermore, originality, creativity and aesthetics are not determinative of the copyrightability of utilitarian objects. The test is whether there is a physically or conceptually separable work of art embellishing the useful article, for it is that work of art alone that can be copyrighted.

Section 101 permits copyright protection for a useful article’s pictorial, graphic, or sculptural features when they can be identified separately from and exist independently of the article’s utilitarian aspects; conceptual separability is sufficient, so physical separability is unnecessary.

Animal Fair, Inc. v. Amfesco Industries, Inc. · filed 1985-08-02

The Court will assume for purposes of the present motion that plaintiff’s slipper is a useful article within 17 U.S.C. § 101. ... Notwithstanding this assumption, defendant’s characterization of the scope of copyright protection in this case is far too narrow. Virtually all of the design aspects of plaintiff’s slipper “can be identified separately from, and ... exist ... independently of, the utilitarian aspects of the [slipper].” 17 U.S.C. § 101. It is clear that such features need not be physically separable from the useful article in order to be protectable; it is enough that they can be conceptually separated.

Section 101 treats a useful article’s design as a pictorial, graphic, or sculptural work only when its artistic features can be identified separately from and can exist independently of the article’s utilitarian aspects.

Magic Marketing, Inc. v. Mailing Services of Pittsburgh, Inc. · filed 1986-05-01

Thus we must determine whether the envelopes, which are unquestionably “useful articles,” incorporate ornamental features separable from, and independent of, its utilitarian function.

Section 101 treats sculptural features of a useful article as copyrightable sculptural works when they can be identified separately from and exist independently of the article's utilitarian aspects.

E. Mishan & Sons, Inc. v. Marycana, Inc. · filed 1987-06-10

Identification of the year is not required by § 401(b)(2) for notices affixed to a “pictorial, graphic, or sculptural work ... reproduced in or on ... any useful articles.” A kitchen magnet is a device used for the posting of recipes, reminders and the like on the refrigerator. The sculptural design features “can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. (“Definitions: Pictorial, graphic and sculptural works.”) ... The affixing of Mary’s artwork to the magnet brings the copyright within this provision, and excuses notice of the date of first publication.

Section 101 protects a useful article’s design only to the extent its pictorial, graphic, or sculptural features are separately identifiable from and independently capable of existing apart from the article’s utilitarian aspects; the Second Circuit held conceptual separability depends on whether artistic choices were exercised independently of functional influences.

Brandir International, Inc. v. Cascade Pacific Lumber Co. · filed 1987-12-02

The statutory definition of "pictorial, graphic, and sculptural works" states that "the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." 17 U.S.C. Sec. 101. ... He views the statutory limitation of copyrightability as "an attempt to identify elements whose form and appearance reflect the unconstrained perspective of the artist," such features not being the product of industrial design. ... To state the Denicola test in the language of conceptual separability, if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists. ... We believe that Professor Denicola's approach provides the best test for conceptual separability and, accordingly, adopt it here for several reasons. ... Applying Professor Denicola's test to the RIBBON Rack, we find that the rack is not copyrightable. It seems clear that the form of the rack is influenced in significant measure by utilitarian concerns and thus any aesthetic elements cannot be said to be conceptually separable from the utilitarian elements.