In the United States, copyright protection for an original creative work exists as soon as the work is fixed in a tangible medium, i.e. written down, recorded, painted, etc. While copyright protection therefore exists even if the author or creator of the work never registers the work, registration entitles the copyright owner to several benefits.

First, registration (or a refusal of registration) is required to bring a lawsuit for copyright infringement. Moreover, the owner of a registered copyright is, in certain circumstances, eligible to receive statutory damages, attorneys’ fees, and costs in a copyright infringement lawsuit. Under 17 U.S.C. § 504(c), statutory damages for copyright infringement can reach $30,000 per work infringed instead of the amount of the defendant’s profits or the plaintiff’s damages, which could be low or difficult to prove. If the copyright owner can prove that the infringement was committed willfully, statutory damages can reach $150,000 per work infringed. Under 17 U.S.C. § 412, in order to be eligible for statutory damages, attorney’s fees, and costs, the copyright for a work must be registered (i) before the infringement began or (ii) within three months after the publication of the work. Therefore, properly timing registration within three months after a work’s publication so that statutory damages are available can have enormous financial implications.

In light of these implications, a clear understanding of copyright publication is critical to protect the value of a work. Under 17 U.S.C. § 101, “publication” is the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Offering to distribute copies to people for the purposes of further distribution, public performance, or public display also constitutes publication. Meanwhile, a public performance or display of a work, without additional factors, does not constitute publication.

While determining the publication date of physical media is more straightforward, on the Internet—where creative works including videos, blog posts, photographs, and the like can be posted at the click of a button for the world to see—determining the publication date for such works is less simple. In the online context, “publication” refers to a copyright owner allowing the end user to retain a copy of the work. Posting a photograph or video online for others to view is the display or public performance of the work, so it is not necessarily published when it is posted.

For a work posted online to be considered published, the copyright owner must have made the work available for distribution, performance, or display by others. There are two ways by which a copyright owner can ensure that the online posting of their work constitutes publication:

1. By giving express notice when the work is posted online. For example, when posting a work online, the copyright owner can include in the caption a statement that people may download or print the work.
2. By implied notice. A copyright owner may imply that they are making the work available for distribution, performance, or display by others by posting it on a platform where downloads are available. For example, TikTok, Instagram Reels, and YouTube each give the creator the option to allow or disallow users to download their videos once they are posted. Choosing to allow downloads when posting a video on these platforms would constitute publication through implied notice.

To take full advantage of the statutory remedies for copyright infringement, authors and creators must be cognizant when posting works online of whether downloads are enabled on the platform. If a work is posted by the copyright owner on a platform that always allows downloading, printing, or saving, or if the owner has chosen to allow downloads of the work when posting, this can constitute publication of the work and starts the three-month clock for timely copyright registration. If the work is not registered within three months after the copyright owner posts it online with downloads enabled, statutory remedies may not be available.

Accordingly, to be in the best position to protect the value of a copyright, timely registration is recommended. If timely registration is not feasible, disallowing downloads, making video content available for streaming only, or including an express notice that downloading, printing, or copying is not permitted is an alternative method to prevent the three-month clock from starting.