Help with USA copyrights: Submitting as published vs. unpublished

Hi,

So, my issue is that I really need to catch up on submitting copyrights but 2 things trouble me:

1. Are my pictures published or unpublished?
2. If published, what date should be used for the group deposit--or if one cannot group pictures with different publishing dates?

I think I work like many casual photographers--you take a bunch of photos and come home then start posting on Flickr or whatever, and on Facebook, and in my case Yelp too. So, does posting on the internet constitute "publishing"? I listened to a webinar by a lawyer on this very subject and even she was vague saying that it is subjective and the law leaves this up to the copyright submitter.

Now, I have thousands of photos spanning the last couple years and I'm not sure what to do with them in respect to submitting them for copyright.

I understand the best thing to do is to submit as "unpublished" and that way you don't have to worry about dates. But then the problem is that most of the time you wanna just post on Facebook or Flickr immediately after your vacation. It's much more economical to queue pictures for 2-3months (up to the 90day limit on retroactively applying copyrights) and submit in groups. But I don't want to hold off posting pictures for 2-3months.

Does anyone have advice on this situation?--I'm sure it's not just me. I would think most amateurs operate this way.

Thanks!

They're © the instant you take them. You have a certain length of time after you become aware of a infringement to register the ©. 90 days I think. Only if you do that do they become liable for the fees. You can put them all on a CD & ©/register them all at once for just the one $45 fee.

OTOH, Removing the watermark is a separate issue to © violations: From Carolyn E Wright's blog: Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement.
The pertinent part of the statute is included the link.
"And the even better news? You don't have to have registered your photo in advance to recover under this statute."

You don't have to type © 2014 "Name" each time, either. Just drag the text layer from one image into another to copy it.

ASMP Copyright Tutorial: Step by step tutorial for online registration

PhotosGuy wrote in post #17236892
They're © the instant you take them. You have a certain length of time after you become aware of a infringement to register the ©. 90 days I think. Only if you do that do they become liable for the fees. You can put them all on a CD & ©/register them all at once for just the one $45 fee.

OTOH, Removing the watermark is a separate issue to © violations: From Carolyn E Wright's blog: Section 1202 of the U.S. Copyright Act makes it illegal for someone to remove the watermark from your photo so that it can disguise the infringement when used. The fines start at $2500 and go to $25,000 in addition to attorneys' fees and any damages for the infringement.
The pertinent part of the statute is included the link.
"And the even better news? You don't have to have registered your photo in advance to recover under this statute."

You don't have to type © 2014 "Name" each time, either. Just drag the text layer from one image into another to copy it.

ASMP Copyright Tutorial: Step by step tutorial for online registration

Just FYI, that's not exactly correct...

Yes, you have copyright the moment you make your picture. However, you cannot sue for infringement itself without registering the copyright. You can only claim damages, which sometimes cannot be calculated. The big sum people usually sue for is the result of registering your copyright. And I believe the max for that is $150k per incident (which is a ton more than your typical damages apparently.) You REALLY want to register your copyright--you will get a zillion times more money in a lawsuit.

You are right about the 90 day figure--however it's a lot more complicated than that. You have 90 days from the time your picture is "published" to retroactively register the copyright. If you miss that deadline you are sht out of luck--if someone has infringed on you days after you created that picture and you missed the deadline, you are not covered by the copyright registration. I'm guessing you can sue for damages and have them cease using your image, but you can't sue for the big $$$ (see above.)

The same thing goes for stuff that is years old. If someone infringed on you a while ago and you didn't register your stuff yet, you can't just register them now and get the same rights. I believe people can keep infringing on you up to your registration (or 90 days past if you missed the deadline? I'm not sure) and not get sued for the big $$$.

So the lesson is, in order to sue for the big $$$, you want to register all your work as "unpublished" before publishing anything. Then you are pretty safe from all scrutiny that the opposing defendant is gonna try to lay on you.

Put it this way PhotosGuy--if you never registered your stuff, and I just went ahead and took one of your 1yr old photos and made a bunch of money off it, you might not get very much money from me at all if you sue. I might just need to stop using your photo. BUT, if you registered your photos, you can sue me for $150k for each image. That's a HUGE difference.

ALSO, IMPORTANT: I've also been told if you don't register your photos and you decide to sue, you might have a problem getting a lawyer because the reward might be too small to warrant their time. So, again, you'd be sht out of luck.

As for your CD comment--that's what they call a "group deposit." And that is what my question is all about.

...alas, thanks for that link, but I read that whole thing previously in detail. it doesn't talk about what is published vs. unpublished in terms of normal internet usage (facebook, yelp, etc.), and what to do when group depositing a lot of published works of different publishing dates.

Yes, it is. But winning a judgement for, say $750,000, doesn't have anything to do with actually collecting that amount? $2500 to $25,000 per violation that I might have a chance of collecting makes more sense to me. ; )

PhotosGuy wrote in post #17236949
Yes, it is. But winning a judgement for, say $750,000, doesn't have anything to do with actually collecting that amount? $2500 to $25,000 per violation that I might have a chance of collecting makes more sense to me. ; )

true, but better safe than sorry right? a seminar I attended presented one story that actually happened: there was some earthquake somewhere and some dude ran towards the earthquake taking pics of the destruction while people ran away. soon after he posted the pictures on the internet. almost immediately someone stole his pics and claimed them to be his own--I don't exactly remember this part, but this person appears to be working for a well known firm and might have some fame himself. somehow the pictures got passed around a little and getty somehow ends up reselling the rights to the photos. long story short, the original photo taker did register his photos correctly and sues getty and wins $1.1mil +. it did take 4 years--but i'm sure you'd be fine waiting 4 years for $1mil.

the kicker--if he did not register his photos I was told he'd get somewhere around $200k in damages. $200k is still a lot, but is nothing like $1mil.

it's $55 for uploading a bunch of pics, no limit on #. so... it's not a huge financial problem to just do it. UNLESS if the answer to my original question is that now I have to separate my groups by dates. Then I'm REALLY screwed.

Not a lawyer, and this is not a legal advise.

The copyright is actually there the moment you take picture. The different in what you can claim if you decided to sue is whether the image is registered to the copyright office or not. Well, even so if somebody in other country steal your image, then good luck on that. Even if your image is not registered, you can still sue, but you are limited to just the actual damage and the lost of profit. Meaning you actually have to prove those part. If your image is registered, then you can claim what is call statutory damages. It's in the 17 USC section 504. link here. That 150k is per infringement. Well, if you hire a lawyer and he is smart enough, say somebody steal your image and post it on the website. That's just one infringement, but the lawyer could obtain the record from the ISP and see how many times that image has been requested by web browsers. Well, each one of those download would count as infringement also.

In term of published vs unpublished, I would say it's published. The copyright office stated the following.

(source here) Since you posted those images to FB/flickr, it's safer to just say they are published, as you probably have signed away some rights to them as well.

someone0 wrote in post #17236971
Not a lawyer, and this is not a legal advise.

The copyright is actually there the moment you take picture. The different in what you can claim if you decided to sue is whether the image is registered to the copyright office or not. Well, even so if somebody in other country steal your image, then good luck on that. Even if your image is not registered, you can still sue, but you are limited to just the actual damage and the lost of profit. Meaning you actually have to prove those part. If your image is registered, then you can claim what is call statutory damages. It's in the 17 USC section 504. link here. That 150k is per infringement. Well, if you hire a lawyer and he is smart enough, say somebody steal your image and post it on the website. That's just one infringement, but the lawyer could obtain the record from the ISP and see how many times that image has been requested by web browsers. Well, each one of those download would count as infringement also.

In term of published vs unpublished, I would say it's published. The copyright office stated the following.
(source here) Since you posted those images to FB/flickr, it's safer to just say they are published, as you probably have signed away some rights to them as well.

well, said on the first part--that's more precisely what I noted.

I guess the published vs unpublished part is the subjective portion. so yeah, i'm aware of what you quote there. however, a lawyer I heard speak on this subject says the interpretation is "subjective" and "left up to the submitter." she says that it can go either way, and just cause you post to facebook or other places does not necessarily constitute publication.

this isn't the example she gave, but I figure it would be similar to say sharing printed photos with your friends--does that necessarily mean you published them? no, right? well, if you posted online, would it not follow that sharing with your friends would not constitute publication? I dunno...

btw, I did call the copyright office and they said just that--my posting on the internet does not necessarily mean I published anything. but beyond that they said they would have to talk to their manager, who has yet to contact me.

so I guess I was hoping that someone could clarify more of what that one lawyer I heard speak of.

Xyclopx wrote in post #17236997
so I guess I was hoping that someone could clarify more of what that one lawyer I heard speak of.

No lawyer will ever give you a clear answer even after getting paid. My point isn't that you should pick one over the other. But it sound like by the definition given by copyright office, you are more likely in the published category rather than unpublished. If you are unsure, you could have all the pictures that you didn't post anywhere in the unpublished. And worry about the other one later. Yes, it double the cost, but if you very decided to pursue a legal action later, would you rather leave a loophole for the other side to say that you fraudulently submit the copyright registration?

someone0 wrote in post #17237021
No lawyer will ever give you a clear answer even after getting paid. My point isn't that you should pick one over the other. But it sound like by the definition given by copyright office, you are more likely in the published category rather than unpublished. If you are unsure, you could have all the pictures that you didn't post anywhere in the unpublished. And worry about the other one later. Yes, it double the cost, but if you very decided to pursue a legal action later, would you rather leave a loophole for the other side to say that you fraudulently submit the copyright registration?

and thus we come full circle.... i'm with you on what you wrote, but then we come back to the same problem: it's not even close to "double the cost":

if I upload pictures to my website continuously, there would be hundreds of "publish" dates. if I must make one copyright submission for each date, we're talking $5000+ of copyright fees. not to mention this will take forever. must I really do it this way?

Well, it's double the cost if you plan to submit them as unpublished. I wouldn't count uploading to my own website as published, well for one thing, I don't have a lot of visitor and I intended to keep it that way. Most of my photography are purely for my entertainment and I don't exactly see that as fitting the copyright office definition. Maybe lawyers could intrepid it differently. When you use your pictures on 3rd party site like FB you start giving away your rights and that's where trouble begins. Well, the point is that even if you publish all the picture you posted on FB & flickr as unpublished, it's still up for a fight in court, but if you separate them from the one you keep on your own as 2 separate unpublished buckets of registered copyright, then the other side can't make the same argument if they grab the picture from your own website. Think of it as tainted bucket and untainted bucket. You can do 2 buckets every years or something like that.

Xyclopx wrote in post #17237024
if I upload pictures to my website continuously, there would be hundreds of "publish" dates. if I must make one copyright submission for each date, we're talking $5000+ of copyright fees. not to mention this will take forever. must I really do it this way?

You are forgetting the 90 window. That means you need to do a registration every 90 days and just include all images uploaded since the previous registration so 4 times a year. You just upload a set of images as "images qtr 1 2014" and put the publication date as that of the earliest published image.

Xyclopx wrote in post #17236961
true, but better safe than sorry right? a seminar I attended presented one story that actually happened: there was some earthquake somewhere and some dude ran towards the earthquake taking pics of the destruction while people ran away...

If I were "unlucky" enough to be in that situation, that's a case where I would certainly © all the images in the group as soon as possible. And they would all have the "© MyName 2014, all rights reserved" on them, too.

But that's not what we were talking about here, is it?

so, fyi, more research revealed 2 differing opinions on what is published vs unpublished:

http://asmp.org …bout-registration.html#q3

"Under U.S. law (as currently interpreted by the Copyright Office), an image is published when a member of the public could obtain a copy. Thus, you technically would have to offer the images for sale; but the rights could be quite narrow, the price could be quite high, and you don’t have to promote the offer very hard. (Obviously, this isn’t a good approach if you are already bound by exclusive marketing or licensing deals.)"

and via photoshelter:
"What is considered “published”?
The US Copyright office doesn't offer specific guidance on this issue, nor is there any case law. But for purposes of the Internet, any image that is viewable through a public link should probably be considered published. This includes all social media, blogs, portfolio websites, etc. You want to register your published images within three months of publication makes it easier to sue and recover damages."

why the heck can't lawyers make clearer, less subjective, laws? sheesh.

Dan Marchant wrote in post #17237250
You are forgetting the 90 window. That means you need to do a registration every 90 days and just include all images uploaded since the previous registration so 4 times a year. You just upload a set of images as "images qtr 1 2014" and put the publication date as that of the earliest published image.

hi dan.... this is interesting. so I did more research and we have:

http://copyright.gov/f​orms/formgr_pph_con.pd​f

"When does a group of published photographs qualify for a single registration
using Form GR⁄PPh⁄CON? A single group copyright registration
can be made if all the following conditions are met:
1 All the photographs are by the same photographer, whether the author
is an individual or an employer for hire.
2 All the photographs were first published in the same calendar year.
3 All the photographs have the same copyright claimant(s)"

Now here's the issue. This form they are talking about is a paper form for traditional submission. On the website, it does allow you to list many publications (via the page called "titles". HOWEVER, and this is the confusing part for me, it ONLY HAS ONE PUBLICATION DATE for the entire group.

It appears that this Continuation Form is similar in that there are no publication dates listed on these forms, so I assume it's like online where there is just one date, on the main form.

I think this is THE KEY here. Dan, can you verify with me if the right thing to do, on the online version, is to list all the publications as different "titles" (that would be of different dates), but use ONE SINGLE date, being the first one, as the publication date?

Have you had experience with this? I want to make sure I do this right.

Thanks!

They write the laws so that there's enough ambiguity to keep them in business, no? If they were easy to understand, then anyone could do it. ; )

PhotosGuy wrote in post #17237623
They write the laws so that there's enough ambiguity to keep them in business, no? If they were easy to understand, then anyone could do it. ; )

yup