In the lively discussion regarding Published is Published, the subject of public readings came up. I mentioned in comments (here and on Reb Livingston’s Homeschooled by a Cackling Jackel) that recently I’d heard that a lawyer had advised a poetry group that public readings constituted putting work “out there” in the same manner as publication. It was news to me, too, and rather alarming. Commenter Elissa Malcohn provided the following valuable information:
Unless I’m misinterpreting, open readings do not constitute publication unless they are recorded for public consumption, i.e., placed in fixed form and thereby copyrighted. In its “Copyright Office Basics” (http://www.copyright.gov/circs/circ1.html) the U.S. Copyright Office quotes the 1976 Copyright Act definition of “Publication” as follows:
“‘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.”
Obviously the media cited in the definition need to be updated, but I believe that the operative term here (used elsewhere in the circular) is “fixed form.” I would argue that the term applies to Internet postings, which can be downloaded and printed easily enough. Radio programs are usually recorded. But given the above, saying that a non-recorded public reading constitutes “publication” is like saying that having a table at a public reading festival where I’ve displayed an anthology in which my poem has appeared is equivalent to having that poem “republished.”
Thank you to Elissa for her insights!