Nico Simon Princely wrote:
What the latest on what counts as published? (Does facebook/mm count as published I have heard both ways.)

In the US that is a technical question that needs to be carefully considered. It seems that mere "display" such as placing an image on MM or FB [or any where else that serves that purpose], but where there is no actual transfer of a copy of the work, is not necessarily publishing in US law.

The fundamental issue [in the US] is the actual transfer of a copy or copies to someone else [publishing] as opposed to the mere display of the work [not publishing].

A full legal analysis might even show that, for example, the transfer of a physical or electronic copy to the model as part of a TF* agreement [in US law] might be publishing for copyright registration purposes, whereas displaying it on a website is not.

The question, in US law, does not have a clear cut answer. The sense of the matter that I have derived from listening to lectures produced by the well know IP lawyer Ed Greenberg, is that the ONLY safe option in electing to register images as "UNpublished" is to register them before ANY OTHER ACT takes place that could compromise that position - before they are placed on display; before any copies are given or sold to anyone else; ect., ect. including the model.

In other countries, the UK is an example, the act of placing an image so that it can be viewed on a website [mere display] IS publishing. The act of "making available" to the public a work [in whatever form] is generally publishing [putting them on a website is "making them available" to the public = publishing]. Part of the problem seems to be how the US integrated the Berne Convention into US domestic law, as the Berne Convention has particular, detailed, and somewhat complex rules on the subject: including, when something is published; where [in what country] a work is first published; publication dates for the purpose; and the IP protection regime when something is published or not published.

For purposes of the Berne Convention [generally] the prevailing view, and this has been an issue even in the US courts in some infringement cases, is that displaying an image on the Internet might be treated as "simultaneous world wide publication" but it is publication nevertheless. Complicating matters is that the US courts do not treat this as a universal rule in every instance.

Studio36

AN INTERESTING ASIDE:

Did you know that when you see a copyright mark on a work, any kind of work and not limited to photographs, such as:

"©1988 [name]"

That the year shown there is [intended to be] the year of first publication, NOT the year the work was first created. The alternative mark for an unpublished work would properly look like this:

"©unpublished [name]" or could also be written as "©1988 unpublished [name]" where the year, in this mark, is the year of first creation of the work.

This is specifically permitted precisely to differentiate between published and unpublished works for registration and other purposes [such as the treatment of an infringement].

Nico Simon Princely wrote:
What the latest on what counts as published? (Does facebook/mm count as published I have heard both ways.)

studio36uk wrote:
In the US that is a technical question that needs to be carefully considered. It seems that mere "display" such as placing an image on MM or FB [or any where else that serves that purpose], but where there is no actual transfer of a copy of the work, is not necessarily publishing in US law.

The fundamental issue [in the US] is the actual transfer of a copy or copies to someone else [publishing] as opposed to the mere display of the work [not publishing].

A full legal analysis might even show that, for example, the transfer of a physical or electronic copy to the model as part of a TF* agreement [in US law] might be publishing for copyright registration purposes, whereas displaying it on a website is not.

The question, in US law, does not have a clear cut answer. The sense of the matter that I have derived from listening to lectures produced by the well know IP lawyer Ed Greenberg, is that the ONLY safe option in electing to register images as "UNpublished" is to register them before ANY OTHER ACT takes place that could compromise that position - before they are placed on display; before any copies are given or sold to anyone else; ect., ect. including the model.

In other countries, the UK is an example, the act of placing an image so that it can be viewed on a website [mere display] IS publishing. The act of "making available" to the public a work [in whatever form] is generally publishing [putting them on a website is "making them available" to the public = publishing]. Part of the problem seems to be how the US integrated the Berne Convention into US domestic law, as the Berne Convention has particular, detailed, and somewhat complex rules on the subject: including, when something is published; where [in what country] a work is first published; publication dates for the purpose; and the IP protection regime when something is published or not published.

For purposes of the Berne Convention [generally] the prevailing view, and this has been an issue even in the US courts in some infringement cases, is that displaying an image on the Internet might be treated as "simultaneous world wide publication" but it is publication nevertheless. Complicating matters is that the US courts do not treat this as a universal rule in every instance.

Studio36

AN INTERESTING ASIDE:

Did you know that when you see a copyright mark on a work, any kind of work and not limited to photographs, such as:

"©1988 [name]"

That the year shown there is [intended to be] the year of first publication, NOT the year the work was first created. The alternative mark for an unpublished work would properly look like this:

"©unpublished [name]" or could also be written as "©1988 unpublished [name]" where the year, in this mark, is the year of first creation of the work.

This is specifically permitted precisely to differentiate between published and unpublished works for registration and other purposes [such as the treatment of an infringement].

I completely agree with what you are saying and will add a little bit.  The reason that the issue is complex is that the copyright statute specifies certain very specific things that must happen for an image to have been published.  As you have said, it must be more than mere display.  Good examples are some form of availability to the public for purchase, lending (such as a library), etc.  There can be other criteria, and as you have said, in an international dispute (rather than a domestic dispute), the Berne Convention can come into play.  It is a quite technical rule.  Physical transfer can often be an element, but if that transfer is for the private use of an individual, you may or may not have publication.

Which is why I highlighted the part above.  Giving a model an image, before you have clear evidence of publication, is a double edged sword.  If, the act constitutes publication, that will start the clock and you will have ninety days to register and still have the protection of the statute.  On the other hand, if it doesn't meet the technical definition of publication, and the model somehow permits a third party to infringe on the copyright (or infringes herself), you are unprotected in terms of statutory damages, attorneys'f etc.

So I am glad you discussed this.  So that people understand, the distinction between an unpublished work and a published work in registration is dramatic.  If a work is unpublished and unregistered, as defined by the statute, you cannot collect statutory damages or attorneys fees if someone infringes your copyright prior to registration.  Put another way, for an unpublished image, you are at risk until registration occurs.

On the other hand, if you register an image as published, when it was, in fact, unpublished, you stand the chance that your registration will be challenged as invalid  So even if registered  you can find yourself unprotected.

If you are going to register an image as published (and remember, published and unpublished images must be registered separately), be sure it is really published as defined by the statute.  That is the reason why the safest course is to registering your images as unpublished before giving copies to anyone.  If an image is registered as unpublished, even if published, the registration will be valid.  So if you haven't been infringed upon when you register, you will always be fully protected.

Thank you again for your explanation.  People often don't understand that the definition of "published" in the U.S., for copyright purposes is different than published for most other purposes.  It is also different than for the rest of the world. So, while putting in image on the web may require you to have a release from the model (because in that sense it is published), in terms of copyright, you may not be able to register it as a published image.

One last point, there are some good podcasts and webcasts out there from Ed Greenberg.  He is a real expert and a lawyer. Neither Studio36UK or myself are.  I strongly recommend that you listen to some of them.  They are all free.  You will learn a lot about some of the very technical aspects of copyright.

One last point, for those of you outside of the U.S., registration is an American thing.  Most countries don't require it.  There was an interesting case here recently on foreign publishers and U.S. registration, but that is a subject for another thread.

ei Total Productions wrote:
One last point, for those of you outside of the U.S., registration is an American thing.  Most countries don't require it.  There was an interesting case here recently on foreign publishers and U.S. registration, but that is a subject for another thread.

There is a problem with foreign works infringed in the US that DOES deserve mention here [three interrelated points]:

1) A foreign work actually has some but not complete protection in the US if it is not registered in the US; It has protection to the extent that a suit for infringement can be brought without US registration, but, also, that statutory damages and attorney fees will NOT be available. So suit on an unregistered work [domestic or foreign] would then have to proceed on the basis of damages as loss or profit alone and without the benefit of taking into account, or an expectation of an award of, any claim of attorney fees or costs.

2) A second issue is the ability to bring suit in the US courts in the first place; The nature of the action will be one of "diversity" in that the plaintiff will be in one jurisdiction [foreign, perhaps] and the defendant will be in the US. To initiate such a claim in the US federal courts the MINIMUM amount in dispute must be at least US$75,000. [if anyone wants to look it up see: Federal Rules of Civil Procedure @ 28 U.S.C. § 1332 Diversity of citizenship; amount in controversy; costs]

3) To overcome the problem with the amount in dispute AS WELL AS the issue of statutory damages, attorney fees, and costs, it is prudent even for foreign works to be US registered. Then, where a statutory damages' claim is routinely advanced in the filed claim, the amount will immediately exceed the 75K minimum. Thereafter, if successful in the courts, even if the damages award is less than the maximum, or even less than $75K, [quite likely] there will also be made available a separate award of attorney fees and costs.

---

So it is not completely fair to say that US registration is only a US issue. It is not in some cases. Just from memory, I am thinking of the Lara Jade case. She is from the UK and her work carried a UK copyright but was not registered in the US when it was infringed. Though there was a clear cut infringement of a non-US work, not registered in the US, she came away from it with nearly $100K in damages + attorney fees + costs BUT only a very small part of that was on account of the infringement [ISTR ~$6K] and that was assessed on P/L. The rest, including attorney fees and costs, came about on account of some additional Florida state issues to do with a releasing [right of publicity / commercial appropriation] claim and some other issue [I don't recall if that other part was privacy or defamation]. Except for the cumulative amounts of likely damages arising from the concurrent state claims there would never have been a case there. She was extremely fortunate, in that instance, that the state claims could be brought alongside the infringement claim.

The Football Association Premier League in their case v. YouTube and Google lost their ass big time on just such a point of non-registration in the US; Nearly all their statutory damages claims were dismissed except those that could be sustained, and survived, under the "live broadcast" exception.
L I N K

Personally I think they possibly made something of a tactical error bringing suit in the US when a little research produces this tid-bit of information:

EX: http://www.youtube.com/t/terms

14.6 The Terms, and your relationship with YouTube under the Terms, shall be governed by English law. You and YouTube agree to submit to the exclusive jurisdiction of the courts of England to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that YouTube shall still be allowed to apply for injunctive remedies (or other equivalent types of urgent legal remedy) in any jurisdiction.
Dated: 9 June 2010

If you pull back the curtain, you will not only find the Wizard but also the fact that a lot of these big players, e.g. Facebook, have set up their principle places of business, for tax purposes, in the likes of Ireland. But that also brings them within the reach of courts other than those of the US.

Studio36

ei Total Productions wrote:
One last point, for those of you outside of the U.S., registration is an American thing.  Most countries don't require it.  There was an interesting case here recently on foreign publishers and U.S. registration, but that is a subject for another thread.

studio36uk wrote:
There is a problem with foreign works infringed in the US that DOES deserve mention here [three interrelated points]:

1) A foreign work actually has some but not complete protection in the US if it is not registered in the US; It has protection to the extent that a suit for infringement can be brought without US registration, but, also, that statutory damages and attorney fees will NOT be available. So suit on an unregistered work [domestic or foreign] would then have to proceed on the basis of damages as loss or profit alone and without the benefit of taking into account, or an expectation of an award of, any claim of attorney fees or costs.

I know, that was the point of my last sentence.  I was about to write about it but then decided that I had already written enough.   I figured you would do it for me and save me the work. 

studio36uk wrote:
So it is not completely fair to say that US registration is only a US issue. It is not in some cases.

Fair enough.  I was pointing out to people that the US is one of the few countries that has a registration system.  I didn't want everyone rushing around and trying to figure out how to register their works in Fuji.

But to that extent you are right.  If a Canadian finds the need to bring suit in an American court, it will make a difference, in terms of damages, if their work had been registered in the U.S.

It is a strange world we live in!

ei Total Productions wrote:

Nico Simon Princely wrote:
What the latest on what counts as published? (Does facebook/mm count as published I have heard both ways.)

I completely agree with what you are saying and will add a little bit.  The reason that the issue is complex is that the copyright statute specifies certain very specific things that must happen for an image to have been published.  As you have said, it must be more than mere display.  Good examples are some form of availability to the public for purchase, lending (such as a library), etc.  There can be other criteria, and as you have said, in an international dispute (rather than a domestic dispute), the Berne Convention can come into play.  It is a quite technical rule.  Physical transfer can often be an element, but if that transfer is for the private use of an individual, you may or may not have publication.

Which is why I highlighted the part above.  Giving a model an image, before you have clear evidence of publication, is a double edged sword.  If, the act constitutes publication, that will start the clock and you will have ninety days to register and still have the protection of the statute.  On the other hand, if it doesn't meet the technical definition of publication, and the model somehow permits a third party to infringe on the copyright (or infringes herself), you are unprotected in terms of statutory damages, attorneys'f etc.

So I am glad you discussed this.  So that people understand, the distinction between an unpublished work and a published work in registration is dramatic.  If a work is unpublished and unregistered, as defined by the statute, you cannot collect statutory damages or attorneys fees if someone infringes your copyright prior to registration.  Put another way, for an unpublished image, you are at risk until registration occurs.

On the other hand, if you register an image as published, when it was, in fact, unpublished, you stand the chance that your registration will be challenged as invalid  So even if registered  you can find yourself unprotected.

If you are going to register an image as published (and remember, published and unpublished images must be registered separately), be sure it is really published as defined by the statute.  That is the reason why the safest course is to registering your images as unpublished before giving copies to anyone.  If an image is registered as unpublished, even if published, the registration will be valid.  So if you haven't been infringed upon when you register, you will always be fully protected.

Thank you again for your explanation.  People often don't understand that the definition of "published" in the U.S., for copyright purposes is different than published for most other purposes.  It is also different than for the rest of the world. So, while putting in image on the web may require you to have a release from the model (because in that sense it is published), in terms of copyright, you may not be able to register it as a published image.

One last point, there are some good podcasts and webcasts out there from Ed Greenberg.  He is a real expert and a lawyer. Neither Studio36UK or myself are.  I strongly recommend that you listen to some of them.  They are all free.  You will learn a lot about some of the very technical aspects of copyright.

One last point, for those of you outside of the U.S., registration is an American thing.  Most countries don't require it.  There was an interesting case here recently on foreign publishers and U.S. registration, but that is a subject for another thread.

"If you are going to register an image as published (and remember, published and unpublished images must be registered separately), be sure it is really published as defined by the statute.  That is the reason why the safest course is to registering your images as unpublished before giving copies to anyone.  If an image is registered as unpublished, even if published, the registration will be valid.  So if you haven't been infringed upon when you register, you will always be fully protected. "

So what I'm getting here is that from this point forward I should register all images and unpublished before I do anything with them. And the one's I have just register them all as unpublished as they will be protected from any future infringement from the date of publishing forward.

Nico Simon Princely wrote:
So what I'm getting here is that from this point forward I should register all images and unpublished before I do anything with them. And the one's I have just register them all as unpublished as they will be protected from any future infringement from the date of publishing forward.

So long as there has not already been infringement, once you have registered them, they full protection offered by the statute from that point forward whether they are published or not.  Remember, an image can be infringed upon even if it has never been published.

ei Total Productions wrote:

So long as there has not already been infringement, once you have registered them, they full protection offered by the statute from that point forward whether they are published or not.  Remember, an image can be infringed upon even if it has never been published.

One more question. What about naming the work. I have heard that an argument that just uploading batches of images without naming the as work might invalidate the copyright any truth this? or are you familiar with this?

My last upload was put together for a book so that was not an issue but what about just registering content every few months?

MC Photo wrote:
If I had to pick a side to argue, I'd argue that when you upload an image to FB you're granting them a limited license. Granting any form of license means it's in use.

Now clearly if you give a magazine a license and the magazine hasn't been printed, I don't think you can call that image published.


My guess is that the real reason people care about when the registration has happened is because they think it make a difference in how much money they might get in an infringement lawsuit. The thing is, in the most blatant case of theft where the entity you were suing testified that it was a conscious theft, you're not ever going to get statutory damages for an infringed photo.

Statutory damages only come into play when all of the specific conditions have been met and a reference is needed for the value of the damages because there's no way to determine them.

There are plenty of stock agencies that will provide a very consistent reference for the value of an image. The cases where it's more will be cases where there's a documented budget.

When someone puts your image on the cover of a magazine that has the circulation of Time, the defendant's lawyer is going to bring up the $30 stock photo use as a reference and find dozens of stock images similar to yours, especially on flickr. Your lawyer can argue that that was an aberration and that Time pays $3k every week.

The judge will look at how much you've been paid for previous magazine covers and see that you've never been paid $3k before and know that Time would have lowballed you and you would have taken it and estimate the value of damages as $2k or maybe the full $3k if you're lucky.

That means you're at -$7k in legal fees rather that at the +$140k because you think that statutory damages exist for punitive purposes. That's incorrect, punitive damages exist for punitive purposes.

There may be other reasons people care, but that's the only one I've ever heard about.

Can you point to judgements like that or is this your theory. Of course we want the $100k that the deterrent to stop people. If it's just limited to attorney fees and a licensing fee. People would steal images all day!

Nico Simon Princely wrote:
One more question. What about naming the work. I have heard that an argument that just uploading batches of images without naming the as work might invalidate the copyright any truth this? or are you familiar with this?

My last upload was put together for a book so that was not an issue but what about just registering content every few months?

When you upload a batch of photos, say, everything you shot in November 2012, you must name the batch/collection something, and I'd suggest a name like "collected works, Nov 2012." You can't upload the batch without naming it. In that batch of photos, every one of which your computer insists you must name with a filename, you have already covered the issue. Your computer will not let you save image files without some form of unique name. In all this, there is no reason why a name like the default from your camera, something like "IMG_100011" can't be used. So this issue is not something you have to worry about really.

And yes, you should make it a practice to register EVERYTHING you shoot as a normal part of your workflow. Remember, you can register as unpublished as long as you do so within 90 days of publication. This suggests that 4 or 5 times a year is often enough to stay with that 90 day window.

Finally, the only restriction on uploading is that you must be able to do it in the 60 minute time limit the gov web site will hold you to. But you can do it in a series of 60 minute sessions. The only controls on this are related to how fast your internet connection is. If you have a million images to register, you can do it with one application/registration fee. You just have to put them into a series of files you can upload in an hour each.

MC Photo wrote:
If I had to pick a side to argue, I'd argue that when you upload an image to FB you're granting them a limited license. Granting any form of license means it's in use.

Now clearly if you give a magazine a license and the magazine hasn't been printed, I don't think you can call that image published.


My guess is that the real reason people care about when the registration has happened is because they think it make a difference in how much money they might get in an infringement lawsuit. The thing is, in the most blatant case of theft where the entity you were suing testified that it was a conscious theft, you're not ever going to get statutory damages for an infringed photo.

Statutory damages only come into play when all of the specific conditions have been met and a reference is needed for the value of the damages because there's no way to determine them.

There are plenty of stock agencies that will provide a very consistent reference for the value of an image. The cases where it's more will be cases where there's a documented budget.

When someone puts your image on the cover of a magazine that has the circulation of Time, the defendant's lawyer is going to bring up the $30 stock photo use as a reference and find dozens of stock images similar to yours, especially on flickr. Your lawyer can argue that that was an aberration and that Time pays $3k every week.

The judge will look at how much you've been paid for previous magazine covers and see that you've never been paid $3k before and know that Time would have lowballed you and you would have taken it and estimate the value of damages as $2k or maybe the full $3k if you're lucky.

That means you're at -$7k in legal fees rather that at the +$140k because you think that statutory damages exist for punitive purposes. That's incorrect, punitive damages exist for punitive purposes.

There may be other reasons people care, but that's the only one I've ever heard about.

Uh, sorry, dude, that's nonsense. You really need to read up on this, and I'd recommend Ed Greenberg's excellent site http://thecopyrightzone.com.

The statute draws a distinction between images registered prior to infringement and those not so registered. Unregistered images, NOT registered images, get the treatment in court you have so laboriously delineated.

The statute itself says that damages start at $750 in the case of a registered image, and that the damages in the case of an image registered prior to the infringement will be determined by the court. This is typically done without reference to the photographer's ability to show what they "normally" get paid. Further, the highest awards are reserved for "willful" infringement, so your example of someone admitting they did it on purpose would not only never bring up the cited $30 figure, they would have the court looking more toward the 6 figure awards.

Further, the statute says the plaintiff can request attorney's fees IF the image is properly registered before infringement. These are routinely granted, although not guaranteed.

You said you guessed the real reason people care is they THINK it'll make a difference in the money. I got news for you: it does make a difference. Stop guessing and educate yourself, ok?

Nico Simon Princely wrote:
One more question. What about naming the work. I have heard that an argument that just uploading batches of images without naming the as work might invalidate the copyright any truth this? or are you familiar with this?

My last upload was put together for a book so that was not an issue but what about just registering content every few months?

Michael DBA Expressions wrote:
When you upload a batch of photos, say, everything you shot in November 2012, you must name the batch/collection something, and I'd suggest a name like "collected works, Nov 2012." You can't upload the batch without naming it. In that batch of photos, every one of which your computer insists you must name with a filename, you have already covered the issue. Your computer will not let you save image files without some form of unique name. In all this, there is no reason why a name like the default from your camera, something like "IMG_100011" can't be used. So this issue is not something you have to worry about really.

And yes, you should make it a practice to register EVERYTHING you shoot as a normal part of your workflow. Remember, you can register as unpublished as long as you do so within 90 days of publication. This suggests that 4 or 5 times a year is often enough to stay with that 90 day window.

Finally, the only restriction on uploading is that you must be able to do it in the 60 minute time limit the gov web site will hold you to. But you can do it in a series of 60 minute sessions. The only controls on this are related to how fast your internet connection is. If you have a million images to register, you can do it with one application/registration fee. You just have to put them into a series of files you can upload in an hour each.

Sorry NIco, I am moving to a larger studio so I am not at my desk much right now.   I spend my days swinging a hammer and doing things that a photographer should only have to do when they must (my lease expired and the building was sold).

You have gotten the right answer here.  I would have replied this morning but Michael beat me to it with the right answer.

ei Total Productions wrote:

Nico Simon Princely wrote:
One more question. What about naming the work. I have heard that an argument that just uploading batches of images without naming the as work might invalidate the copyright any truth this? or are you familiar with this?

My last upload was put together for a book so that was not an issue but what about just registering content every few months?

Sorry NIco, I am moving to a larger studio so I am not at my desk much right now.   I spend my days swinging a hammer and doing things that a photographer should only have to do when they must (my lease expired and the building was sold).

You have gotten the right answer here.  I would have replied this morning but Michael beat me to it with the right answer.

Thanks Michael and EI. And I know the feeling I'm also working for a friend right now and it's taking up all of my time from my own projects.