A Theory of Different Types of Publication

One thing that’s frequently been commented on over the years has been the different types of publication under the 1909 Copyright Act – so called “investitive” and “divestitive” publication, meaning an act of publication which respectively vests and divests a work of copyright protection. This has generally been treated as a judge-made kludge meant to prevent works from accidentally slipping into the public domain. But I believe there’s a fairly straightforward differentiation between divestitive and investitive publication – they come from two entirely seperate copyright systems. Investitive publication is publication under federal law, while divestitive publication is publication at common law. I believe this helps explain which type of publication is at issue, and which precedents are relevant to determining publication today.

This isn’t entirely a new observation – I wrote about this in a paper I published a few years back called Common Law Copyright, although I’m not sure this part of the piece was widely noticed. The U.S. Supreme Court also discussed this briefly in 1973 in Goldstein v. California, although I also haven’t seen much discussion of this point. Footnote 28 of that decision reads:

Petitioners place great stress on their belief that the records or tapes which they copied had been “published.” We have no need to determine whether, under state law, these recordings had been published or what legal consequences such publication might have. For purposes of federal law, “publication” serves only as a term of the art which defines the legal relationships which Congress has adopted under the federal copyright statutes. As to categories of writings which Congress has not brought within the scope of the federal statute, the term has no application.

Goldstein v. California, 412 U.S. 546, 570 n. 28 (1973)

In that case, Goldstein et al were arguing that the sale of records at record stores constituted a divestitive publication. The Court noted that common-law publication at state law was not their concern. Admittedly, the second part is a bit more equivocal for my thesis since it’s talking more about the fact that federal law publication isn’t at issue since sound recordings weren’t covered by federal law at all. The footnote is a clear acknowledgement that there are two different publication regimes though – state common law and federal statutory law.

Until 1909 the only publication was at common law. A work was protected by common law copyright until published, at which point protection was lost unless copyright had been secured by deposit of a title page, payment of a fee, and entry of a registration had been made beforehand. As such, publication was a purely divestitive act, so no need to delineate it so was needed. When publication is discussed prior to 1909, it is common-law publication AKA divestitive publication which is being discussed.

The 1909 Act flipped the script on registration. Except for a few categories of unpublished works, mostly music and drama, federal copyright was now secured by publication with a copyright notice which confirmed to the law. This created a new form of publication – publication under federal law, AKA investitive publication. When looking at publication cases from this period, to determine whether it’s federal or state law being applied, the relevant question is whether the publication in question is alleged to be investitive or divestitive.

The 1976 Act (effective 1978) largely eliminated the requirement of publication for protection, saying copyright protection subsists upon fixation in a tangible medium (i.e. you get copyright when you write/record it). Save for sound recordings recorded before 2/15/1972 and a few other very minor categories, common-law copyright was abolished. With the abolition of common-law copyright the concept of divestitive publication was likewise abolished save for those same categories of works. This was reinforced in 1989 with the passage of the Berne Convention Implementation Act, which completely eliminated any requirement of copyright notice. When we speak about publication since 1989, we are speaking about the publication standards under federal law, not under state law.

Critiques welcome. There are many publication decisions which don’t seem to really consider this distinction, but I think it’s a helpful distinction for understanding the publication doctrine and copyright.

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