When is a photograph published?

One of the most difficult, yet important, issues concerning the copyright status of a photograph concerns whether it has been “published” within the meaning of the Copyright Act.  Whether a work has been published impacts what fees are due to register a copyright, what mandatory deposits are required, what forms must be used to register, the length of the copyright term, whether statutory damages and attorney fees will be available for infringement, and a host of other issues.  In short, it is a critical question.

The only thing we can say for sure is that the common understanding of the word “publish” is NOT the same as the meaning of “publish” as used in the Copyright Act.  Publication is defined in Section 101 of the Act 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.”  It states that “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” On the other hand, “[a] public performance or display of a work does not of itself constitute publication.”  Clear?  I don’t think so.

In December 2014 the Copyright Office released a Compendium of U.S. Copyright Office Practices at its website, available here.  A draft of revisions to the Compedium is here.  The Compendium offers some useful examples of when a work is published, or not.  While not binding upon a court, and not constituting legal advice, these examples (Compendium Chapter 1900) are nevertheless influential:

  • Selling copies of a textbook to a local school board constitutes publication of that work.
  • Selling a product with copyrightable artwork on the packaging and label constitutes publication of that artwork.
  • Mailing copies of a catalog to potential customers constitutes publication of that catalog and any unpublished works revealed in that work.
  • Distributing copies of a leaflet on a street corner constitutes publication of that work.
  • Giving away copies of a photograph without further restriction constitutes publication of that work.
  • Lending, renting, or leasing copies of a work constitutes publication of that work.
  • Distributing copies of a motion picture through a retail service constitutes publication of that work.

On the other hand, putting restrictions on redistribution impacts publication status:

  • Sending copies of a manuscript to prospective publishers in an effort to secure a book contract does not constitute publication (regardless of whether the copies are returned).
  • Distributing copies of a research paper that are intended solely for the use of the participants at a seminar generally does not constitute publication if there was no right of further diffusion
  • Distributing copies of a speech that are intended solely to assist the press in covering that event has been deemed a limited publication under the Copyright Act of 1909 (i.e., not a publication). However, under the current statutory definition, offering to distribute copies to different news outlets for the purpose of further distribution, public performance, or public display could constitute publication.

The original law on publication was written long before the Internet, so there is a physical limiation that is surprising.  Distributing copies or phonorecords by non-physical means does not constitute publication. In particular, the legislative history states that “any form or dissemination in which a material object does not change hands... is not a publication no matter how many people are exposed to the work.” H.R. REP. NO. 94-1476, at 138 (1976).  What that means in the context of a USB drive driven, browser dependent, smartphone infested society is not clear.

Offering the work to some intermediary for further distribution is significant because:

  • Publication occurs when a motion picture is offered to a group of movie theaters or television networks for the purpose of exhibiting or broadcasting that work.
  • Publication occurs when copies of a greeting card are offered to retailers for the purpose of selling those copies to the public.
  • Publication occurs when copies of a photograph are offered to stock photography agencies for the purpose of licensing those copies to newspapers, magazines, and websites.
  • Publication occurs when phonorecords are offered to radio stations for the purpose of broadcasting the songs and sound recordings embodied therein.
  • Publication occurs when copies of a song are offered to a group of band directors for the purpose of performing that work at athletic events.
  • Publication occurs when fabric, carpet, or wallpaper samples are offered to sales representatives for the purpose.

Surprising to many is the exception that public display or performance is not publication:

  • Performing a song at a concert or on television or radio, regardless of the size of the audience.
  • Showing a motion picture in a theater or on television.
  • Performing a play, a pantomime, or a choreographic work in a theater.
  • Delivering a speech, lecture, or sermon at a public event.
  • Displaying a painting in a museum, a gallery, or the lobby of a building (regardless of whether the copyright owner prohibited others from taking photographs or other reproductions of that work).
  • Displaying a fabric design, wallpaper design, or textile design in a store front.

As noted above, the legal principles of publication were developed before the Internet, but in Chapter 1000, section 1008.3 of the Compendium (available here) the Copyright Office is trying to guide development of the law in this area.  Note that these ideas as not legally binding, but they are persuasive.  As a general rule, the Copyright Office does not consider a work to be published if it is merely displayed or performed online, unless the author or copyright owner clearly authorized the reproduction or distribution of that work, or clearly offered to distribute the work to a group of intermediaries for purposes of further distribution, public performance, or public display.  Section 1008.3(B)  For the first time we have a working principle that can guide determination whether an online work has been published.  The Office advises:  “[a] critical element of publication is that the distribution of copies or phonorecords to the public must be authorized by the copyright owner. To be considered published, the copyright owner must expressly or impliedly authorize users to make retainable copies or phonorecords of the work, whether by downloading, printing, or by other means.” Section 1008.3(C)

In other words, the mere fact that a work is disclosed on the internet does not “publish” the work. The end user’s technical capacity to copy, capture, save, or otherwise reproduce a work in and of itself does not imply that the copyright owner authorized the distribution or publication of that work, unless there is an express or implied-in-fact authorization that supports such an inference. So:

  • Posting a sound recording online for authorized downloading by the public may well provide evidence of publication.
  • Making a sound recording available for streaming would not constitute publication, because the work is only intended to be publically performed. 
  • Posting an article on a news website that authorizes users to download articles or email them to a friend may support a finding of publication for that particular article.

By analogy:

  • Posting a picture on a website such as Flickr with the downloading option disabled would not be publication
  • Posting a picture on a website such as Fine Art America that allows it to be downloaded (upon paying a fee) or on Flickr with the downloading option enabled provides evidence of publication.  Note that in either case the presence of a commercial transaction (a fee) is not the deciding factor, rather it is the downloading of the electronic file to be persistently stored at the user’s local memory.

Signifivgantly, the Copyright Office sums up website distribution this way:

"Authors and copyright owners who wish to clarify the publication status of their works should provide express information about what they are, or are not, authorizing others to do with their works. For instance, explicitly authorizing downloading or reproduction of all the content on a website would indicate that the works posted on that site have been published. Implicitly authorizing downloading or transmission of copies of works by offering copies for sale, free downloading, or transmission to others via email also may suggest that works subject to that implicit authorization have been published. By contrast, clearly stating that the content on a particular is available only for public display or public performance with an express prohibition on the reproduction, distribution, or transmission of any of that content would indicate that the works on that site are unpublished.”

Finally, group registration of unpublished photographs is fairly easy, straightforward, and inexpensive.  If a registered unpublished work is subsequently published, the registration is still intact and valid.

Where Does This Lead Us?

As should be evident, the issue of publication is not clear cut, but we can draw the following Best Practice standards.  Prior to registering an unpublished photograph:

1.  If you display your photgraph at a museum, show, fair, etc., don’t post it for sale without further need to contact you and get your authorization.

2.  If your photograph is in a show, don’t let copies be used in marketing, mailers, posters, postcards, etc., for the show.    

3.  Ask the curator of a show, museum, fair, etc., to post a “no photographs" sign.

4.  If you place your photographs online disable the download facility for the image.

5.  Don’t use a shopping cart for direct sales from the website, followed by download of a file. 

And, above all:

Register the copyright in the unpuiblished photograph so you don’t need to worry about these Best Practices.

`© Robert Rose 2015