What is the Copyright Office’s definition of “published”?
The U.S. Copyright Office adheres to Congress’s definition of “publication,” which is provided in section 101 of the Copyright Act:
“Publication” is 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.
In general, the Office leaves the determination of whether or not a work is published to the applicant. A critical aspect of publication is that the author or copyright owner must authorize the distribution of copies or phonorecords, or authorize the offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display. Thus, the key question is whether the author or copyright owner intended distribution, or intended to offer the copies or phonorecords for further distribution, public performance, or public display by a group of persons, or did the author or copyright owner only authorize public performance or public display. The mere fact that someone may, without the authority of the copyright owner, reproduce or distribute a work, generally does not affect the determination. For more information on publication, please see Compendium (Third) Chapter 1900.
Rob Kasunic, Director of Registration Policy and Practices at the U.S. Copyright Office