I would like to register images from my archives. As a commercial photographer, it is impossible to determine when images have been published by clients.
Full Question: I would like to register images from my archives. As a commercial photographer, it is impossible to determine when images have been published by clients. Often there are long delays between delivery and publication, and I’m normally not notified when it occurs. This problem of separating published vs unpublished images in my archives is almost insurmountable and has caused me to ignore registering my work altogether. Would it be foolish to register everything from my archive as unpublished for the sake of easily protecting most of the images? I am hoping the US Copyright Office modernizes their process by allowing published and unpublished images to be registered together. If this happens – wouldn’t both my published and unpublished images be protected if I go ahead now and register everything as unpublished? Are there problems with this short cut strategy?
Response: During its recently concluded rulemaking in adopting group registration options for published and unpublished photographs, the Office received comments noting that photographers struggle with the definition of “publication” and “the public,” and find it difficult to determine whether their works are published or unpublished, especially when they are distributed in digital form. Like you, other photographers are reluctant to register their works, in part, because they worry about the possible consequences of classifying an unpublished photograph as a published work (or vice versa).
The new group option for unpublished photographs will help mitigate this problem by encouraging early registration. The Office strongly encourages creators to register their works before they are distributed or offered for distribution, because this avoids any confusion concerning publication and the treatment of published works. Once a photograph has been registered as an unpublished work it does not have to be registered again if it is subsequently published. And registering an unpublished work prior to infringement will preserve the copyright owner’s ability to seek statutory damages and/or attorney’s fees in an infringement action.
The publication status of a work at the time the application is submitted is determined by the applicant and not the Copyright Office. To assist applicants in making this determination, the Office included in its comprehensive revision of the Compendium of U.S. Copyright Practices (https://www.copyright.gov/comp3/) which includes an entire chapter on publication. This chapter provides a detailed discussion on the definition of “publication” and “the public” and gives specific examples of how the Office applies these definitions to photographs and other types of works. See generally Compendium (Third) chapter 1900.
That said, a critical aspect of publication is that the author or copyright owner must authorize the distribution of copies or phonorecords, or authorize the offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display. Thus, the key question is (1) whether the author or copyright owner intended to distribute the copies or phonorecords to the public, or intended to offer the copies or phonorecords for further distribution, public performance, or public display by a group of persons, or (2) did the author or copyright owner only authorize a public performance or public display of the work?
In addition to the authorization to publish by the author or copyright owner, it is important to recognize that the actual distribution to a client may constitute publication whether that client republishes the photograph or not. In other words, the distribution of a single copy to one person may constitute publication. Compendium (Third) § 1902.
As to why published and unpublished works must be registered separately, this requirement originated with the 1909 Copyright Act. Under the prior statute, published works had to meet certain formal requirements, such as notice, and only certain categories of unpublished works could be registered with the Copyright Office.
While the legal significance of publication has diminished under the 1976 Copyright Act, there are still a number of statutory provisions that require copyright owners and copyright users to distinguish between published and unpublished works, such as the the requirement that the Office maintain deposits of unpublished works for the life of the term of copyright. Other statutory statutory reasons for distinguishing between published and unpublished works include:
(1) A certificate of registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate, provided that the work is registered before or within five years after the work is first published, 17 U.S.C. § 410(c).
(2) The copyright owner may be entitled to claim statutory damages and attorney’s fees in an infringement lawsuit, provided that the work was registered before the infringement began or within three months after the first publication of the work. See 17 U.S.C. §§ 412, 504(c), 505.
(3) If the work has been published, the date and nation of first publication should be provided on the application to register that work with the U.S. Copyright Office. See 17 U.S.C. § 409(8), For guidance.
(4) As a general rule, the deposit requirements for registering published works differ from the deposit requirements for registering an unpublished work.
(5) Works first published in the United States may be subject to mandatory deposit with the Library of Congress.
(6) The year of publication may determine the length of the copyright term for a work made for hire. See 17 U.S.C. § 302(c). For a definition and discussion of works made for hire, see Compendium (Third) § 506.
(7) The year of publication may determine the length of the copyright term for an anonymous work or pseudonymous work, unless the author’s identity is revealed in records maintained by the U.S. Copyright Office. See 17 U.S.C. § 302(c). For an in-depth discussion on anonymous and pseudonymous works, please see Compendium (Third) § 615.
(8) The year of publication may determine the length of the copyright term if the work was created before January 1, 1978, and was first published between January 1, 1978 and January 1, 2003. See 17 U.S.C. § 303(a).
(9) Many of the exceptions and limitations set forth in sections 107 through 122 of the Copyright Act may be impacted depending on whether the work is published or unpublished.
(10) As a general rule, U.S. works first published in the United States before March 1, 1989, must be published with a valid copyright notice. Failure to include a valid notice on a U.S. work published during this period may invalidate the copyright in that work.
There are additional regulatory differences, including the requirements for group registration for certain published works and the registration accommodation for the registration of unpublished collections. (Because of the Office’s recent creation of a group registration option for unpublished photographs, the Office will no longer allow registration of these works as an unpublished collection.)
For instance, under the group registration options for published and unpublished photographs, all photographs in the respective groups must have the same publication status. Therefore, any photographs that were published at the time you submitted the application for a group of unpublished photographs would not be protected by that registration.
Answered by Rob Kasunic, Director of Registration Policy and Practices at the U.S. Copyright Office.
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