What is a United States Work under Copyright Law?

In Kernel Records v. Mosley, the United States Court of Appeals for the Eleventh Circuit, the court attempted to sort out whether the song Acidjazzed Evening was published, and if so, if it was simultaneously published in every country of the world the instant it was (allegedly) posted to an Australian website.

Under U.S. Copyright Law, a work first published in the United States (or simultaneous in the United States and one or more foreign nations), is a “United States work” which must be registered prior to (or applied for) to have standing to bring a copyright lawsuit. (See 17 U.S.C. § 101).

A work first published in a foreign country does not require registration prior to commencement of a lawsuit.  Although foreign works can, and in many cases, should be registered in the United States.

The defendant in Mosley argued that Acidjazzed Evening was first posted on an Australian website and that posting the song on a website constituted simultaneous world-wide publication, including in the United States.  The defendant moved to dismiss arguing that without a registration certificate, the plaintiff lacked standing.

The plaintiff argued that what is now primarily a website was originally a CD magazine, which was distributed on CD Rom in Australia.

The court explains that the term “publication” has a specific definition in the copyright act.

“[P]ublication is a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term.” Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1214 n.3 (11th Cir. 1999) (quotations omitted). 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. 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.

However, proof of distribution or an offer to distribute, alone, is insufficient to prove publication. Central to the determination of publication is the method, extent, and purpose of distribution. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1214-1216 (discussing general and limited publication); cf. 17 U.S.C. § 101 (defining publication as distribution to the public).

In the end, the case was decided primarily due to the lack of evidence (by either side) as to whether Acidjazzed Evening was posted to a website or alternatively was distributed on CD Rom in Australia.

It was uncessesary for the court to determine wheter simultaneous worldwide publication occurred, and, if so, whether that makes the work a “United States work” under the Copyright Act.  The court stated,

Because the record lacks sufficiently probative evidence of simultaneous worldwide publication, we need not determine what effect simultaneous worldwide publication would have under 17 U.S.C. § 101’s definition of a United States work.

In Rogers v. Better Business Bureau, the United States District Court for the Southern District of Texas, provided a nice synopsis of District Court cases dealing with the issue as to whether posting a work on the internet, amounts to publication of the work.

The Court in Rogers sums up the current state of the law by concluding, “although the current trend appears to favor finding works posted on the internet to be published, the reasons for finding publication varies from case to case and is fact dependent.”

In other words—sometimes, but it depends.  The Court in Rogers summarized the District Court cases as follows:

In Getaped.com, Inc. v. Cangemi, 188 F. Supp.2d 398, 402 (S.D.N.Y. 2002), the district judge found that a website, similar to photographs, music files, or software, was published when posted on the internet. The court stated: By accessing a webpage, the user not only views the page but can also view–-and copy–-the code used to create it. In other words, merely by accessing a webpage, an Internet user acquires the ability to make a copy of that webpage, a copy that is, in fact, indistinguishable in every part from the original.  Consequently, when a website goes live, the creator loses the ability to control either duplication or further distribution of his or her work. Id.32

A 2006 opinion out of the same court stated that, assuming that the internet posting of a digital file of a show performance constituted distribution, it lacked the element of commercial exploitation required for publication. Einhorn v. Mergatroyd Prods., 426 F. Supp.2d 189, 197 (S.D.N.Y. 2006).

In a more recent opinion, the same district court stated that posting images on a website was not publication. McLaren v. Chico’s FAS, Inc., No. 10 Civ. 2481(JSR), 2010 WL 4615772, at *1 (S.D.N.Y. Nov. 9, 2010)(unpublished). In 2009, another district court avoided the issue, finding it to be “unsettled” and unnecessary to that court’s ruling. Moberg v. 33T LLC, 666 F. Supp.2d 415, 422 (D. Del. 2009).

The Northern District of California made a passing remark in a case dealing with the jurisdictional effect of application for registration that reflects the view that making a website available to the public on the internet was publishing it. See Sleep Science Partners v. Lieberman, No. 09-04200 CW, 2010 WL 1881770, at *6 (N.D. Cal. May 10, 2010)(unpublished).

…

Citing Getaped.com, Inc., the Eastern District of Arkansas found that photographs that were accessible online to others who could download them freely were published. William Wade Waller Co. v. Nexstar Broad., Inc., No. 4-10-CV-00764 GTE, 2011 WL 2648584, at *2 (E.D. Ark. July 6, 2011).

Without discussion or explanation, another district court stated that the defendant “published a You- Tube video of a musical work.” Erickson v. Blake, 839 F. Supp.2d 1132, 1134 (D. Or. 2012).

Rogers, pp. 14-16 [additional paragraph breaks added; removed overruled district court case in Kernel v. Mosley].