Copyright applications are often relatively simple documents and carry a government processing fee of only $35 (for electronic submission). Attorney’s fees can dwarf the cost of the application itself, tempting many artists and small businesses on a budget to go it alone.
However, laypeople often put incorrect information in their copyright application, potentially delaying the processing of their application and jeopardizing the value of any resulting registration. One common source of error is the first publication date.
Has Your Work Been Published?
The first publication date is the date your work was first published anywhere in the world. But, what is publication? In copyright law, publication has a specific definition that differs from what you might find in a dictionary:
“the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication”
See the U.S. Copyright Office FAQ and Copyright Basics Circular.
Displaying your work to the public is NOT publication. Therefore, in my opinion, most blog articles are NOT published, although logically you might think otherwise if you did not know this definition. Making copies of your work and renting, leasing, or lending them, or selling or otherwise transferring ownership of them, is publication. Offering to distribute copies to a group for further distribution or display is publication.
What if I Can’t Remember the Exact Date of First Publication?
The date of first publication should be given in a month/day/year format. But sometimes, first publication occurred many years ago. What if you do not know the exact date? How can you give a month and day?
The Copyright Office instructs that if you do not know the exact date of first publication, you should give an approximate month, date, and year. See Copyright Office Help. So just try to pin the date down as best you can, and give your best guess.
In court, your copyright registration will serve as prima facie evidence of its contents, requiring a defendant to produce some evidence contesting the information it contains before you would need to produce evidence to support it.
Conclusion
Whether a work has been published, and if so on what day, can be a difficult question to answer, particular for certain types of works like online texts and computer programs. If you have questions about the date of first publication of your work, talk to a copyright attorney or at least give the Copyright Office a call or email.
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