What Makes an Image Published
Full Question: It is unclear to many photographers what types of mediums or transactions make an image published for registration purposes? Which of the following scenarios would make an image published?
Answer: The Office does not provide legal advice, but rather leaves the determination of publication to the applicant.
1. A group of images were licensed to a client, but only two images actually appear in print. While the Office cannot provide an unequivocal answer to hypotheticals that may involve other significant facts, the distribution of the photographs to a client could, in itself, constitute publication in the legal sense. The Office would accept this position from an applicant.
2. A group of images were licensed to a client, but the photographer is never told how, when, or if the images are actually used. The Office will accept a photographer’s view that the distribution to the client is an act of publication, particularly because this is the only authorized act within the photographer’s control.
3. A photographer posts an image to his professional website or blog for self-promotional purposes or to solicit fine art print orders.The determination of publication is based on the authorization of the copyright owner. If the photographer posts the images solely for public display for promotional purposes, that posting in itself, generally will not constitute publication unless the photographer gave an explicit or implicit authorization to reproduce and/or distribute copies of the posted images. If the authorization is limited to public display, the Office will accept an applicant’s position that the works may be considered unpublished until copies of particular works are distributed with the photographer’s authorization.
4. A photographer posts an image to a private section of his website, so a client can review, download, or order a print.The determination of publication is based on the authorization of the copyright owner. If the photographer authorized the client to download or reproduce the work from the private section of his or her website, the Copyright Office would accept the photographer’s claim that the work was published. This scenario would also fit squarely within the second sentence of the definition of “publication” if the photographer invited multiple clients to access the private section of his or her website and allowed them to download or reproduce the work for the purpose of further distribution, public performance, or public display.
5. A photographer posts an image to a social media site (e.g. Instagram, Facebook, Twitter, etc.) for self-promotion or commercial purposes.The determination of publication is based on the authorization of the copyright owner. If the photographer posted the image solely for the purpose of public display, in itself, that would not constitute publication. If any copies of the image were distributed with the photographer’s authorization either by sale or other transfer of ownership, or by rental, lease, or lending, those copies could be considered published.
6. A photographer’s client posts an image to a social media site (e.g. Instagram, Facebook, Twitter, etc.).The determination of publication is based on the authorization of the copyright owner. If the photographer authorized a single client to post the image on a social media site solely for the purpose of public display, that would not constitute publication. By contrast, if the photographer authorized multiple clients to post the image solely for the purpose of public display, that could be considered publication. Likewise, if any copies of the image were distributed with the photographer’s authorization, either by sale or other transfer of ownership, or by rental, lease, or lending, that would constitute publication.
7. A group of images were submitted to a contest, but none of the images won.It would depend on the explicit or implicit authorization of the creator or copyright owner. If the photographer did not authorize the recipient to use the works without further compensation or permission, this may not constitute publication. If the terms of the contest allowed the recipient to use or retain ownership of the works submitted, this could be considered publication.
The principle distinction is whether the creator or copyright owner distributed the works, offered to distribute the works to a group of persons for purposes of further distribution, public performance, or public display, or on the other hand, merely authorized the public performance or public display of the works. The copyright owner may control the publication status of a work by clearly limiting or authorizing the use intended.
Answered by:
Rob Kasunic, Director of Registration Policy and Practices at the U.S. Copyright Office