[Copyright] Publication of a Play for purposes of a copyright application

Tue Jun 18 16:02:54 EDT 2024

 But if I write a play, and we perform the play for an audience, and I make copies of my play available for purchase in the lobby and 10 people I don't know buy copies, then that sounds a lot more like publication.  

My fact pattern does NOT include selling a copy of the play.  That would clearly be publication.  I did not ask about that fact pattern.  In fact if that was the case I would not have to ask.

My issue is that my client has not made the play available to the public in any form other than performance.  According to the statute and compendium that is NOT publication.   
best,
Nancy 
    On Tuesday, June 18, 2024 at 02:28:44 PM EDT, Jessica R. Friedman <jrfriedman at litproplaw.com> wrote:  

 I agree with Ed.
Jessica R. FriedmanAttorney at Law(917) 647-1884jrfriedman at litproplaw.comwww.literarypropertylaw.comFrom: Edward Timberlake <ed at timberlakelaw.com>
Sent: Tuesday, June 18, 2024 2:13:17 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com>
Cc: Elizabeth Russell <beth at erklaw.com>; Jessica R. Friedman <jrfriedman at litproplaw.com>; Nancy Prager <nancyprager at yahoo.com>
Subject: Re: [Copyright] Publication of a Play for purposes of a copyright application As I recall, part of the idea behind the concept of "publication" is an attempt to assess when copies of a work have moved outside the author's control. 
If I write a play and toss it in my bottom drawer, we'd say the work is clearly unpublished. 
If I write a play and give my mom a copy, and also give one copy each to three actors so we can have a public read-through of the play, we'd probably still say the work was unpublished (at least in part because I could easily get my copies back from everybody if I asked). 
But if I write a play, and we perform the play for an audience, and I make copies of my play available for purchase in the lobby and 10 people I don't know buy copies, then that sounds a lot more like publication.  

Sincerely,
Ed Timberlake  Board Certified Specialist in Trademark Law
Timberlake LawChapel Hill, NC

Schedule a call on Clarity
ed at timberlakelaw.com
919.960.1950

On Tue, Jun 18, 2024 at 1:54 PM Nancy Prager via Copyright <copyright at oppedahl-lists.com> wrote:

Section 1908
Examples of performances and displays that do not in themselves constitute publication include the following: .... Performing a play, a pantomime, or a choreographic work in a theater.
Elsewhere they say distributing copies does not necessarily mean something has been published.  
Would love to find something definitive that supports your approach because it is the situation here... lots of people have copies of the play.  
On Tuesday, June 18, 2024 at 01:43:39 PM EDT, Jessica R. Friedman <jrfriedman at litproplaw.com> wrote:

I still think they would be considered to be within the overall organization that is producing the play, even if they literally work for a different company, so I don’t think it would even be a limited publication.

Does the Copyright Compendium have anything to say on this question?

Jessica R. Friedman

Attorney at Law

300 East 59 Street, Ste. 2406

New York, NY 10022

Phone: 212-220-0900

Cell: 917-647-1884

E-mail: jrfriedman at litproplaw.com

URL: www.literarypropertylaw.com

From: Copyright <copyright-bounces at oppedahl-lists.com> on behalf of Nancy Prager via Copyright <copyright at oppedahl-lists.com>
Date: Tuesday, June 18, 2024 at 1:06 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com>, Elizabeth Russell <beth at erklaw.com>
Cc: Nancy Prager <nancyprager at yahoo.com>
Subject: Re: [Copyright] Publication of a Play for purposes of a copyright application

Great question.  Distributing the copies to the talent and production personnel should count but it would likely be considered a distribution to a limited audience.  A publication is deemed “limited” where “copies of the work are distributed both (1) to a ‘definitely selected group,’ and (2) for a limited purpose, without the right of further reproduction, distribution or sale.” (emphasis added)Academy of Motion Picture Arts and Sciences v. Creative House Promotions, Inc., 944 F.2d 1446, 19 U.S.P.Q.2d 1491 (9th Cir. 1991).

§ 7:3. Publication considerations, Copyright Registration Practice § 7:3

On Tuesday, June 18, 2024 at 12:56:59 PM EDT, Elizabeth Russell <beth at erklaw.com> wrote:

What about the distribution of printed scripts to production personnel? The rehearsal hall is at least a semi public place; the personnel are not a social circle; and the distribution is for “the purpose of” public performance.

Elizabeth T Russell

beth at erklaw.com

From: Copyright <copyright-bounces at oppedahl-lists.com>On Behalf Of Nancy Prager via Copyright
Sent: Tuesday, June 18, 2024 12:44 PM
To: for Copyright Practitioners <copyright at oppedahl-lists.com>
Cc: Nancy Prager <nancyprager at yahoo.com>
Subject: [Copyright] Publication of a Play for purposes of a copyright application

Dear colleagues....

A client has a play in production.  The iniital performance date is not the date of publication since public performance is not considered publication.  So what is? 

Is a play considered unpublished until someone literally publishes the play (most likely through a licensing arrangement)? 

If not, what is considered publication of a play?

I feel like I have dealt with this before and ended up advising the client to file as an unpublished work but that boggles my mind. 

Thanks in advance!

best,

Nancy  
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