Every copyright application asks one question that stops people who put work online: is this work published? If your videos sit behind a login and members can only watch them, the honest first reaction is "I don't know."

The short answer: under the Copyright Office's guidance, a work that's only streamed, displayed, or performed online is generally unpublished. It becomes published when the owner authorizes the public to keep copies, for example by offering a download. Courts haven't been as consistent, so make the call deliberately and keep a record of why.

What the statute says

The Copyright Act defines publication as "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." Offering to distribute copies "to a group of persons for purposes of further distribution, public performance, or public display" also counts. Then comes the sentence that matters online: "A public performance or display of a work does not of itself constitute publication." 17 U.S.C. § 101.

Congress wrote that in 1976, with printed books and film reels in mind.

The Copyright Office's position

The Office's guidance on websites, Circular 66, applies the definition this way:

  • Authorization is the key. "The key element of publication for an online work is that the copyright owner must authorize distribution."
  • Technical ability to copy isn't enough. "Just because an end user can technically reproduce a work does not necessarily mean that the work has been published."
  • Streaming alone isn't publication. "Streaming is a performance, which, in and of itself, does not constitute publication, because, as a practical matter, the end user does not retain a copy of the work when the performance ends."
  • A no-copying notice points toward unpublished. If the site's terms or another obvious notice say the content can't be downloaded, printed, or copied, the work "may be deemed unpublished."

The Office also says it "generally lets the applicant decide whether a particular work is published or unpublished." That deference is useful, and it puts the responsibility on you.

The engineering wrinkle

From a network standpoint, the line between streaming and downloading is thinner than the law assumes. A browser playing a plain MP4 from a <video> tag is fetching the file with ordinary HTTP range requests and caching pieces of it. Adaptive streaming (HLS or DASH) fetches a playlist and a series of short segments. Either way, bytes are copied to the user's device.

The Office's test doesn't depend on that. It asks whether the owner authorized users to retain copies, and whether a user ends up with a copy in the ordinary course. A player with no download option, on a site whose terms prohibit copying, points to unpublished. A "Download this lesson" button points to published, and so does a PDF handout offered for download.

Courts haven't settled it

District courts have gone both ways on whether posting a work online publishes it.

The Copyright Office opened a public inquiry on online publication in December 2019, acknowledging the uncertainty. As of this writing it hasn't produced a new rule.

Why the answer matters

Which registration options you can use. Group registration of unpublished works lets you register up to ten works for one fee, but only if every work is unpublished. 37 C.F.R. § 202.4(c). See Group registration of unpublished works.

The statutory damages clock. For a published work, you keep statutory damages and attorney's fees for infringement that starts before registration only if you register within three months after first publication. For an unpublished work, there's no grace period at all. 17 U.S.C. § 412. See When to register a copyright.

What the application requires. A published work needs a date and nation of first publication. 17 U.S.C. § 409.

The evidentiary presumption. A certificate is prima facie evidence of validity if the registration is made before or within five years after first publication. 17 U.S.C. § 410(c).

Whether the registration survives a challenge. A defendant's first move is often to attack the registration.

What happens if you get it wrong

In Gold Value International Textile, Inc. v. Sanctuary Clothing, LLC, 925 F.3d 1140 (9th Cir. 2019), a fabric company registered a design as part of an unpublished collection, although it had already sold fabric bearing the design. The Ninth Circuit held the registration invalid as to that design, and the infringement claim failed.

The Supreme Court has since softened the rule. Under 17 U.S.C. § 411(b), an inaccuracy invalidates a registration only if the applicant included it "with knowledge that it was inaccurate." In Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178 (2022), the Court held that a good-faith mistake of law or of fact doesn't meet that standard.

So a reasonable, documented judgment that a streamed work was unpublished should hold up, even if a court later disagrees. A convenient answer chosen to save fees, with facts that contradict it, may not.

How to make the call

  1. List how each work is delivered. Stream only? Download offered? Sold on physical media? Sent to distributors or licensees who receive copies?
  2. Read your own terms. If they permit downloading or copying, the work is likely published.
  3. Check the player and the files. A download button, a direct file link in an email, or an offline-viewing feature in a mobile app each suggest that users are authorized to keep copies.
  4. Decide, and write down why. A short dated memo to the file is the evidence of good faith that § 411(b) and Unicolors reward.
  5. If it's close, pick the safer route. Register the work individually with a publication date. It costs more and removes the group-eligibility risk.
  6. Fix real errors promptly. If you learn that a work registered as unpublished had in fact been published, talk to counsel about a new registration.

Practical takeaways

  • Streaming without authorized downloads is generally not publication, under the Copyright Office's guidance.
  • A download button, a downloadable handout, or a license that hands copies to distributors changes the answer.
  • Register before launch when you can. The question is easiest when nothing has been released.
  • Keep a record of your reasoning.

If you're unsure how your delivery setup affects registration, I can walk through it with you before you file.

Primary authority

Related resources

This article provides general information and is not legal advice. Copyright Office practices and fees change, and the law varies by circuit; confirm current requirements at copyright.gov and consult qualified counsel about your situation.