Copyright publication: an empirical study.

• Author: Gerhardt, Deborah R.

INTRODUCTION

On August 28, 1968, Martin Luther King ignited the conscience of the world when he delivered the speech I Have a Dream from the steps of the Lincoln Memorial. While thousands gathered on the mall and millions watched live on television, King challenged the United States to envision a future in which we live up to our founding principles of equality. He proclaimed, "I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident, that all men are created equal.'" (1) The speech was a defining moment of the civil rights movement. (2) In 1999 historians awarded it first place in the list of the 100 most eloquent and significant political speeches of the twentieth-century. (3) Both excerpts and the complete text have been printed in newspapers. (4) It has been broadcast on television and in movie theaters internationally. (5) Over a million people have viewed the speech on YouTube. (6) The idea that such a famous speech could be considered "unpublished" defies reason. (7) But under copyright law, whether the speech has been published is an open question.

The answer is of critical importance because it affects the extent to which the public may have access to the speech and many other works that contribute to our cultural heritage. If the speech was "published" without the notice required by copyright law, it is in the public domain, and may be freely copied, played, posted on the Internet, and used in documentary films because it belongs to all of us. (8) But if unpublished despite the lack of notice, it is protected by copyright, and the King Estate has the exclusive power to control its distribution until 2058. (9)

The three courts charged with deciding the issue arrived at three different conclusions. In 1963, a New York federal district court held that it was not published, and therefore protected by copyright law. (10|) The Court issued a preliminary injunction prohibiting the defendants from selling records of the speech. (11) On the day of the March on Washington, CBS was the only network that provided continuous coverage. (12) Thirty years later, CBS attempted to use its own video recording of the speech in a historical documentary about the twentieth century. (13) In 1998, CBS was sued by the King Estate for copyright infringement. (14) This time, a federal district court in Georgia found that the speech was published without notice and is now in the public domain. (15) In 1999, the Eleventh Circuit reversed the 1998 decision and sent it back to the district court, expressly dodging the merits and finding that factual disputes should have precluded summary judgment. (16) Before the legal significance of the facts could be resolved at trial, the case settled. (17)

Based on this mixed litigation record, there is no apparent clarity on whether I Have a Dream has been published. It is difficult to tell which district court got it right--the one that found the speech to be protected by copyright or the one that found it to be in the public domain. Anyone seeking to make a documentary film about the civil rights movement may feel compelled to use some of this footage, but until the question of copyright publication is clarified, the King Estate will control when the footage may be used and at what cost. A filmmaker who believes that use of this speech is necessary to make a true documentary about Martin Luther King, famous speeches, the civil rights movement, or American history in the twentieth century risks being sued in federal court by the King Estate just as CBS was. Based on a murky question of copyright law, this critical piece of our cultural history will be under the control of the King Estate until 2058. (18) Many cultural treasures--both famous and unknown--remain buried by uncertainty over whether, for copyright purposes, a work has been published.

In an effort to untangle some of this uncertainty, this Article presents the first empirical study of copyright publication case law. Publication is a magic moment in copyright law. For works created before 1976, publication is the pivotal instant when a work could acquire copyright protection that would give its owner powers to control its use for more than a century. (19) But if that owner did not observe required legal formalities, no such powers attach. (20) Instead the work becomes part of the public domain, and anyone can use it, copy it, digitize it, or adapt it in other media without having to find and ask its author. (21)

Notwithstanding the dispositive importance of publication, the copyright meaning of the term is not clear and can be difficult to pinpoint. (22) Especially in cases involving non-textual works or original documents, the moment of publication is not often apparent. Another source of ambiguity is that publication has a specific meaning in copyright jurisprudence that can be different from a lay understanding of the term. The ambiguous nature of publication in copyright law can lead to results that appear to defy logic. While Martin Luther King's I Have a Dream speech, though broadcast internationally and reprinted in news media, was found to be unpublished by one court and published by another, (23) a unique sculpture or painting displayed in an art gallery may be found to be published. (24)

The question of publication is a daily challenge for anyone who must make decisions about whether works in our museums and libraries may be used and digitized. (25) The vast majority of decision making about the published status of works occurs outside the courts. Every day publishers, filmmakers, librarians, museum curators, and teachers decide whether works are protected by copyright based on some understanding of publication. For example, many art professors amass collections of art slides they either create or purchase in their travels. When the art department decides to phase out slide projectors in favor of new digital technology, administrators and faculty must decide whether it is permissible to digitize the slides and if so, how broadly they may be shared. They must make decisions based on some understanding of what the law is, and because many publication questions are not answered in the statute, they must make their best guesses based on common practices among similar professionals. If the decision makers have access to legal counsel, they may also rely on analogous precedent. But few practitioners have the time to read more than a small number of publication decisions.

In such situations, legal scholars can make significant contributions by empirically analyzing a field of precedent. As Kay Levine aptly noted, "is it not our obligation as academics to" ask "[c]an anyone know the state of the law from reading a handful of select cases?" (26) Knowledge of copyright publication based on a small set of cases can be especially risky since precedent often appears inconsistent and even contradictory. (27) Based on that call to action and the clear need for clarification on the meaning of publication in copyright law, this project is designed to provide a broader view of publication precedent.

This Article is the first to collect a large sample of federal precedent on the issue of publication in copyright law and examine it empirically. (28) The goals of the project are to (1) test the current relevancy of copyright publication, (2) determine whether publication has a consistent meaning in different copyright contexts, and (3) identify whether judges respond to a clear set of indicators in making decisions about whether a work has been published. Clarifying the definition of publication and identifying the indicators that are important to judges will contribute to the scholarly literature by broadening our understanding of publication precedent. The findings will also provide valuable information to lawyers, librarians, publishers, and museums to determine whether the general principles they use in practice conform to an accurate understanding of publication precedent found in case law. Congress may also gain valuable insights on how the law of copyright publication may be clarified.

The empirical foundation for this project is a dataset that includes all federal judicial opinions found by the author that address the issue of copyright publication. Part I explains why publication is such an important concept in copyright law and identifies ambiguities that will be clarified in the following discussion. Part II describes the dataset. It sets forth the methodology used for identifying the relevant cases and collecting the data. Part III sets forth descriptive statistics reflected in the dataset and explains what they contribute to our understanding of publication in copyright law. In addition to displaying summary statistics, this Part begins to clarify some open questions related to publication. It explores whether the distinction between limited and general publication remains a relevant inquiry after Congress defined publication for the first time in the 1976 Copyright Act. It also examines whether publication has a singular meaning in copyright law or is dependent on context such as the type of work or legal issue under consideration. Part IV focuses on publication decisions made in the context of public domain cases and illuminates whether some commonly used definitions adequately reflect publication precedent. Statistical analysis is used to determine which distribution variables are important to courts and the extent to which their presence leads to a probability that a court will find publication. Part V summarizes general conclusions and recommendations on how to refine our understanding of publication in the fair use and public domain contexts.

1. THE SPECIAL MEANING OF PUBLICATION IN COPYRIGHT LAW

   1. Publication Triggers Significant Copyright Consequences

      Historically, the meaning of publication has been critical to determining...