Registering Photos Already On MY Website - Published or Unpublished?

[Canon30Dguy]

I would like to register many of my photographs visible on my website with the US Copyright Office. For nearly all the photos on my website, I have not authorized the use of them to any third-parties, nor transferred them to any third-parties for any reason.

The US Copyright Office wants to know if the images I am submitting are considered "Published" or "Unpublished". After reading their documentation and FAQ's, I am completely clueless how to designate these images. I even called the Copyright Office and they told me they did not know.

So I thought I'd ask here and see if anyone else has submitted similar work and whether you chose "published" or "unpublished" works. Again, they are photographs I took, that are currently on my website, but no where else.

Thanks for any help.

[griptape]

If the only people displaying them is you, and you're not a publisher, or affiliated with a publisher, then they are unpublished.

[sfaust]

If the only people displaying them is you, and you're not a publisher, or affiliated with a publisher, then they are unpublished.

What information do you base this on? Published status has nothing to do with being a publisher, or affiliated with a publisher. Anyone can publish an image in the eyes of the Copyright laws.

There are discussions in the legal community regarding the status of images published on a website. Some in the legal community say its considered published, since it is widely available to the public. Others say there needs to be more in order to be published, such as an offering for sale, etc. Unfortunately, there isn't any case law cited to show a courts definitive ruling either way, and lawyers seem to spin the argument both ways.

Because of that, it is generally recommended by various photographic organizations that images displayed on a photographers website be registered as published works, since its the safest avenue and would be harder to invalidate the copyright vs unpublished based on the arguments on both sides.


Here are some references;
http://www.copyright.gov/help/faq/
http://www.asmp.org/commerce/legal/copyright/qpublished.php
http://www.copyright.gov/help/faq/faq-definitions.html#publication
http://www3.wcl.american.edu/cni/0312/35187.html
http://www.editorialphoto.com/copyright/

[griptape]

What information do you base this on? Published status has nothing to do with being a publisher, or affiliated with a publisher. Anyone can publish an image in the eyes of the Copyright laws.


I admit my my information is based on written text from my publishing friends, and not on images. But self published (i.e. you uploaded it to flickr) doesn't usually really mean published. Generally you would need the NAME of a publisher to claim the images as published.

[sfaust]

I admit my my information is based on written text from my publishing friends, and not on images. But self published (i.e. you uploaded it to flickr) doesn't usually really mean published. Generally you would need the NAME of a publisher to claim the images as published.

Actually, you may want to look into this. I think there are a number of lawyers that would tell you its published if you make it available up on Flickr, which, is making it available to the general public. Again, its a point even the lawyers argue on, and I'd rather not have them argue that on my dime ;)

[T2000]

You would think it's a simple factual question, right? But it's not. It's a legal question and the Copyright Office doesn't give legal advice. So they're no help...

The Copyright Office does discuss the meaning of the term "publication" in their circular 3. Unfortunately, it's not much more than a rehash of the statutory definition of "publication".

[MJPhotos24]

Ya know, I have some old images I still need to register and have no clue if they were published or not - didn't keep track!

[Picture North Carolina]

Because of that, it is generally recommended by various photographic organizations that images displayed on a photographers website be registered as published works, since its the safest avenue and would be harder to invalidate the copyright vs unpublished based on the arguments on both sides.

Thanks for the info. This is a question I had myself.

I guess another good question that follows would be the "power" of an image that was registered as published. That is, is it harder to bring suit, are actual and punitive damages less, etc.

[sfaust]

Ya know, I have some old images I still need to register and have no clue if they were published or not - didn't keep track!

If you put them up on your website for public display for a short period, you can then register all of them as published and not worry about sorting out which is which. If you are concerned about infringement, put a watermark across all of them and keep them very small. The size doesn't matter, only that they are made public.

[hollis_f]

If the only people displaying them is you, and you're not a publisher, or affiliated with a publisher, then they are unpublished.
Contrariwise, you have published them, therefore you are a publisher.

[Canon30Dguy]

The problem with designating your images as 'Published' is the fact that you have to individually notate on which date each image was published. And 'Published' images cannot be registered with 'Unpublished' images. I have over 10,000 photographs, and lord knows when they were published. I'd hate to have to go through each image to say, "this one was published on March 2nd, this one on September 4th, this one on... and so on.

My interpretation of the Copyright Law's definition of "Published" is that if the ownership of the work was not transferred or sold, the work not lent or distributed for purpose of sale, then the work is unpublished. But I think sfaust said it best when he said he'd rather not have the lawyers argue that on his dime. So thank you US Govt for a modern day copyright law!

I guess a good question to ask would be...

Has anyone ever heard of an instance in court where the plaintiff's (copyright owner) case was denied (copyright registration found invalid) because he had registered work as "unpublished" that had indeed been visible on his/her website before the registration of that work?

[sfaust]

My understanding of why it makes sense to register them as published is this;

If you register it as unpublished, and it can be proven that it was published, it can invalidate the registration completely leaving you with no protection.

But if you publish them as a group, register them as published as of that date, you will have a valid registration from that date forward. It might not cover any infringements previous to that date, but will certainly cover them from that date forward.

I'm not sure if a registration of an image published and registered on June 1 2008, would be invalidated if it was proven that it was also published on say April of 2008 but never registered. I believe the registration wouldn't cover the earlier period, but not necessarily invalidate it. I'd love to get a definitive answer with references and case law if anyone knows for sure.

So if you aren't willing to go back and check each image and register them separately, it seems to be a good compromise compared to leaving them unregistered as they are now, or leaving them with the potential of invalid registrations.

If it were me, I'd single out as many important images that I can validate the published date, and register them separately. Then I would take the rest, publish them, then submit a registration using that published date.

Has anyone ever heard of an instance in court where the plaintiff's (copyright owner) case was denied (copyright registration found invalid) because he had registered work as "unpublished" that had indeed been visible on his/her website before the registration of that work?

I have heard there was from summary articles, other comments from those close to the issue, etc, but have no references to point to. So, yea, I believe there are, but until proven this is still some doubt.

[RacEcaR]

they are unpublished

[sfaust]

Here is a followup from the horses mouth.
____

"Publication" means 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 a group of persons for purposes of further distribution, public performance, or public display is also "publication." The following do not constitute "publication": the printing or other reproduction of copies, a public performance or display of the work, or sending copies of the work to the Copyright Office.

If a photo was offered for sale via the internet, it would certainly be considered published. If not, it is presently still up to the remitter to determine.

Sincerely,
Kathryn Sukites
Registration Specialist
Visual Arts Division
U.S. Copyright Office

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Ie, if you upload to your Flickr account, and have it enabled to allow sales via Creative Commons, or the Flickr/Getty relationship, etc, they would be considered published since they are indeed offered for sale. If you just uploaded them to your website for display, the jury is out and in an infringement case and you can be pretty sure their lawyer will argue to invalidate the registration arguing this point.

[Picture North Carolina]

You got a reply from the government and it only took you 1 1/2 years?

How ever did you get it so quickly? :lol: ;)

(Thanks for the info. Very useful. Sounds like for people trying to sell images, almost every action constitutes "publish".)

[Floriantrojer.com]

I would go with the following logic to be on the safe side:

- Published = made available to the public. Anythin on flickr, your website or even facebook is published material.

- Unpublished = you register them while they are only on your personal computer / a friends computer / etc. ... but in general - not available to the public.

It doesn't matter whether you have sold it or a magazine "published" your photo. If it is available online, people can take it, it is published by you.

Good luck arguing with an IP attorney that photos on your own website are not published material.

[Picture North Carolina]

So all that being said and clarified, what is the legal ramification / consequences of illegal usage of a published vs. unpublished registration? Is it simply all about that "publishing date?" I.e., registered copyright protections are the same after the date?

[RDKirk]

Here is a followup from the horses mouth.
____

"Publication" means 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 a group of persons for purposes of further distribution, public performance, or public display is also "publication." The following do not constitute "publication": the printing or other reproduction of copies, a public performance or display of the work, or sending copies of the work to the Copyright Office.

If a photo was offered for sale via the internet, it would certainly be considered published. If not, it is presently still up to the remitter to determine.

Sincerely,
Kathryn Sukites
Registration Specialist
Visual Arts Division
U.S. Copyright Office

-----------

Ie, if you upload to your Flickr account, and have it enabled to allow sales via Creative Commons, or the Flickr/Getty relationship, etc, they would be considered published since they are indeed offered for sale. If you just uploaded them to your website for display, the jury is out and in an infringement case and you can be pretty sure their lawyer will argue to invalidate the registration arguing this point.

That is what I've been told by a couple of IP lawyers who work with photographers. They add, though, that if the website gallery is secured and requires a password, that should sufficiently bolster an argument that it has not been presented to the public in any way.

By controlling access, even if presenting the images for sale, you're doing the same thing as presenting harcopy images for sale in a private transaction to select individuals (which has already been proven in court as not being "publication").