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, Third Edition For a full discussion of work made for hire authorship, see Chapter 500, Section 506.

802.8(F) Publication Issues

A public performance or display of a work does not, in and of itself, constitute publication. 17 U.S.C. § 101 (definition of "publication"). If an applicant gives a publication date, but states that the publication date refers to a performance of the musical work, the registration specialist will communicate with the applicant. Id.

Under the current copyright law, the public distribution of phonorecords on or after January 1, 1978 publishes the musical works recorded therein. By contrast, musical works distributed only in the form of phonorecords [e.g., records, tapes, or discs) prior to January 1, 1978, cannot be registered as published works under the 1909 Act or the 1976 Act. See 17 U.S.C. § 303(b). Thus, if a musical work was released only in phonorecords prior to January 1, 1978 and if the phonorecords were still available as of that date, the date of first publication for registration purposes would be January 1, 1978. If the phonorecords were no longer available as of January 1, 1978, but the musical work was subsequently rereleased in any format, the rerelease date would be considered the date of first publication. If the phonorecords were no longer available as of January 1, 1978, and the musical work was not subsequently rereleased, the work may be registered as an unpublished work.

For more information on publication, see Chapter 1900.

802.8(G) Unpublished Collections

Two or more unpublished songs, song lyrics, or other musical works may be registered with one application and filing fee, but only under the following conditions:

• All the works must be unpublished;

• The works must be assembled in an orderly form;

• The combined works must bear a single title identifying the collection as a whole;

• The copyright claimant(s) in all of the works, and in the collection as a whole, must be the same; and

• All of the works must be by the same author; or, if they are by different authors, at least one of the authors must contribute copyrightable authorship to each work.

37 C.F.R. § 202.3(b)(4)(i)(B)(l)-(4).

If it appears that the conditions for registering an unpublished collection have not been met, the registration specialist will communicate with the applicant or may reject the claim.

When registering musical works as an unpublished collection, applicants frequently overlook the requirement that the copyright owner(s) must be the same for each and every song. If this is not the case, the songs cannot be registered with the same

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