The rise of digital media and online streaming has blurred the lines between what constitutes publication and public performance of copyrighted works. In particular, the question arises whether performing or distributing a video to a select group of paid subscribers constitutes publication under the Copyright Act.
Copyright law provides a framework for protecting the rights of creators and owners of original works of authorship. One of the critical concepts in copyright law is publication, which triggers several legal consequences, such as determining the start of the copyright term and the need for a copyright notice. In the United States, Section 101 of the Copyright Act defines publication as the distribution of copies or phonorecords of a work to the public by sale, rental, lease, lending, or other transfer of ownership. However, there are exceptions to this definition that creators should be aware of.
One exception is the doctrine of “limited publication,” which applies when a work is distributed to a select group of people with a restricted purpose and without the right of diffusion, reproduction, distribution, or sale. A limited publication is not considered a distribution to the public, and therefore, it is not publication. Courts created this doctrine to avoid the divestive consequences of publication without notice when it was clear that the author or copyright proprietor restricted both the purpose and the recipients of the distribution.
The second exception is that a public performance or display of a work does not necessarily constitute publication, according to Section 101 of the Copyright Act. This means that merely performing or displaying a work in public does not equate to publication under U.S. copyright law, even if many people are exposed to it. However, if a work is offered for distribution or further public performance or display, it could be considered published.
These exceptions are applicable to performers who distribute or perform for a select group of paid subscribers, like on the OnlyFans platform. Live streaming performances, for instance, are not considered published under the law. As for distributing copies of prerecorded videos, the “limited publication” doctrine would seemingly apply given that the recipients of the works are not the general public and are contractually prevented from copying, reproducing, distributing, or selling the work.
Understanding publication is essential for creators and copyright owners, as it determines various legal consequences, such as the duration of the copyright term and the need for a copyright notice. However, the exceptions to the definition of publication, such as limited publication and public performance or display, add complexity to this concept and allow for copyright owners to claim their works are unpublished in circumstances where such a claim will enhance their rights or benefit their business.