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

Tue Jun 18 16:31:50 EDT 2024

(I think there have been some cross-posts so that everything is not on one thread – for the completists).  I think one of your scenarios, Nancy, was performing the work (unpaid) in a theater and leaving copies of the play in the lobby for patrons to take. In that case, it seems clear from the Compendium that the lobby copies would constitute publication because there are no restrictions on their distribution, unlike, say, giving a copy to an actor.  

From: Nancy Prager <nancyprager at yahoo.com> 
Sent: Tuesday, June 18, 2024 4:09 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>; Michael D. Steger <msteger at steger-law.com>
Cc: 'Jessica R. Friedman' <jrfriedman at litproplaw.com>
Subject: Re: [Copyright] Publication of a Play for purposes of a copyright application

Michael,

Good point. But I am becoming more convinced that the performance of a play would leave the underlying work unpublished for purposes of the Copyright Act and registration requirements.  To Jessica's point filing as unpublished is probably the best case for purposes of potential infringement.  And to your point, we should save this thread to be an exhibit in future cases regarding the validity of a registration.  :-) 

best,

Nancy 

On Tuesday, June 18, 2024 at 02:41:58 PM EDT, Michael D. Steger <msteger at steger-law.com <mailto:msteger at steger-law.com> > wrote: 

Section 411(b) is the safe harbor provision.  A copyright registration shall not be invalidated because of incorrect information in the application unless (1) the application intentionally included incorrect information with knowledge that it was wrong, and (2) if the information had been submitted correctly the Copyright Office would have refused registration.  See Unicolors v. H&M (SCOTUS 2022).  

During oral argument in the Unicolors case, justices pointed out that if lawyers can’t easily agree on the status of certain elements of an application (as in this discussion), then whatever was submitted could not be intentionally wrong and would not be subject to invalidation.   

From: Copyright <copyright-bounces at oppedahl-lists.com <mailto:copyright-bounces at oppedahl-lists.com> > On Behalf Of Jessica R. Friedman via Copyright
Sent: Tuesday, June 18, 2024 2:29 PM
To: Nancy Prager <nancyprager at yahoo.com <mailto:nancyprager at yahoo.com> >; For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com <mailto:copyright at oppedahl-lists.com> >; Elizabeth Russell <beth at erklaw.com <mailto:beth at erklaw.com> >
Cc: Jessica R. Friedman <jrfriedman at litproplaw.com <mailto:jrfriedman at litproplaw.com> >
Subject: Re: [Copyright] Publication of a Play for purposes of a copyright application

So you are concerned about registering it as an unpublished work in case it is in fact published?  What would be the consequence or penalty if you did that and somewhere someone determined that it actually had been published? I think this happened to me once and I determined that the consequences were not fatal to anything. I think the significance of  identifying it as published is to be able to be eligible for attorneys fees and statutory damages even if you registered it after the infringement, as long as it was registered within three months of publication. 

Jessica R. Friedman

Attorney at Law

(917) 647-1884

jrfriedman at litproplaw.com <mailto:jrfriedman at litproplaw.com> 

www.literarypropertylaw.com <http://www.literarypropertylaw.com> 

  _____  

From: Nancy Prager <nancyprager at yahoo.com <mailto:nancyprager at yahoo.com> >
Sent: Tuesday, June 18, 2024 1:53:28 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com <mailto:copyright at oppedahl-lists.com> >; Elizabeth Russell <beth at erklaw.com <mailto:beth at erklaw.com> >; Jessica R. Friedman <jrfriedman at litproplaw.com <mailto:jrfriedman at litproplaw.com> >
Subject: Re: [Copyright] Publication of a Play for purposes of a copyright application 

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 <mailto: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:  <mailto:jrfriedman at litproplaw.com> jrfriedman at litproplaw.com

URL:  <http://www.literarypropertylaw.com> www.literarypropertylaw.com

From: Copyright <copyright-bounces at oppedahl-lists.com <mailto:copyright-bounces at oppedahl-lists.com> > on behalf of Nancy Prager via Copyright <copyright at oppedahl-lists.com <mailto: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 <mailto:copyright at oppedahl-lists.com> >, Elizabeth Russell <beth at erklaw.com <mailto:beth at erklaw.com> >
Cc: Nancy Prager <nancyprager at yahoo.com <mailto: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 <mailto: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 <mailto:beth at erklaw.com> 

From: Copyright <copyright-bounces at oppedahl-lists.com <mailto: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 <mailto:copyright at oppedahl-lists.com> >
Cc: Nancy Prager <nancyprager at yahoo.com <mailto: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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