The Copyright Act protects both published and unpublished works, but there are a number of differences between them.
One important difference is registration. For many copyright owners, a collection of unpublished works can be registered as a unit, which generally cannot be done for published works.
Registering works as a collection is a major cost efficiency for copyright owners having large numbers of works.
But a recent Ninth Circuit decision, Urban Textile, Inc. v. Rue 21, Inc. (9th Cir. 2019) highlights a trap for the unwary. It held that inclusion of the claimed copyrighted fabric designs in a look book of fabrics used by the manufacturer to solicit orders from its customers constituted “publication” of the designs. That invalidated the registrations and led to dismissal of the infringement claims on summary judgment.
This kind of “publication” is common in many industries, especially those involving fashion.Many companies will show their next season’s line to buyers well in advance of making them available for sale to the public.Such companies need to be aware that this kind of pre-showing can constitute a publication – and if copyright is important, the works should be registered before the showing