Copyright Publication: An Empirical Study

70 Pages Posted: 5 Mar 2012 Last revised: 12 Apr 2012

See all articles by Deborah R. Gerhardt

Deborah R. Gerhardt

University of North Carolina School of Law

Date Written: December 1, 2011


The Article presents the first empirical study of copyright publication, a concept that can mark a critical moment in the life of a creative work. Books, magazines, films, software and plays, as well as works of art, architecture, music, and even choreography may be protected by copyright. For works created before 1976, knowing whether a work is published is often necessary for determining whether it is in the public domain so that anyone can use it, copy it or adapt it in other media without risking copyright liability. A court’s determination of whether a work is published also may be dispositive of issues such as the duration of the copyright, if others can make fair use of it and whether, in litigation, statutory damages and attorney’s fees are available. Despite the obvious import of this concept, it remains one of the most ambiguous features of copyright law. How do judges decide whether a creative work is published? This article presents the first comprehensive and systematic answer to that question. Based on a dataset of federal judicial opinions, this article analyzes the extent to which accepted notions of copyright publication conform with legal doctrine. The results reveal that often they do not. In particular, this article demonstrates that publication has a surprisingly inconsistent meaning across copyright issues, differing dramatically between the public domain and fair use contexts. The analysis shows that the characteristics of the work, as well as how it is distributed and accessed are important to courts when deciding whether a work is in the public domain. These findings are especially noteworthy, since contrary to popular belief, courts increasingly encounter the issue of publication when answering a wide variety of copyright questions. Drawing upon the empirical findings, the Article recommends that the commonly used definitions of publication be changed to reflect the factors upon which judges actually rely in deciding these cases.

Keywords: copyright, publication

JEL Classification: K29, K39

Suggested Citation

Gerhardt, Deborah R., Copyright Publication: An Empirical Study (December 1, 2011). Notre Dame Law Review, Vol. 87, No. 1, 2011, Available at SSRN:

Deborah R. Gerhardt (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7219 (Phone)
919-962-3375 (Fax)


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