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Publication Within Copyright Law

Publication within copyright law can be a complicated concept. As a general rule, in order for a work to be considered published, the copyright owner must authorize the publication and make multiple copies of the work available to the public. I would argue that distribution to pre-publication reviewers does not qualify as publication.

A small publisher inquired whether the publication date would be “the date your books emerge from the bindery, the date the shipment arrives at your warehouse, the date you send out review copies, or the date you sell your first copies.” I would argue that for copyright law purposes, the date you offer the first copies for sale is the date of publication.

While it is not necessary to file a copyright registration application in order to have a valid copyright, registration is necessary before you can initiate a copyright infringement lawsuit. A timely copyright registration also makes you eligible to receive statutory damages in the lawsuit and to have the other side pay your attorney fees and legal costs.

Statutory damages start at $750 and can go up to $150,000 for each act of infringement. If you are not eligible for statutory damages, you are left with “actual damages” which require you to PROVE how much money you lost due to the infringement. That is not always easy to do. It may seem like a minor point but statutory damages versus actual damages can sometimes determine whether it is worthwhile to pursue a copyright infringement claim.

Here’s how the publication date is tied to copyright damages. For published works, you have a three-month grace period in which to file a copyright registration application. For example, if you publish your work in January, your work is infringed in February, and you file a copyright registration application in March, your registration is timely for purposes of statutory damages and attorney fees.

There is no three-month grace period for unpublished works. For unpublished works, the work must be registered prior to any act of infringement in order to be eligible for statutory damages. If your unpublished work is infringed in February and you file a copyright registration application in March, your registration would not be timely and you would not be eligible for statutory damages or attorney fees.

Joy Butler, attorney and author of The Permission Seeker's Guide Through the Legal Jungle

James A. Cox
Midwest Book Review
278 Orchard Drive
Oregon, WI 53575-1129
phone: 1-608-835-7937

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