When is an advertising photograph "Published"

Hello All

I'm sure that the archives contain significant discussion on the definition of "publication." I'd appreciate comments on the definition of "publication" as it relates to commercial photography.

In registering their works, photographers strive to submit their registrations while the work is unpublished or within 90 days of first publication. But when that is not possible, a photographer must determine whether or not the photograph is published at the time of regisration submission. That can be very difficult. Under the below scenario, when does "first publication" occur?

(1) Photographer creates photographs on assignment. Photographer retains
copyright and licenses limited repro rights to client.
(2) Photographer delivers photographs to client as film or digital files.
(3) Client's employees then might circulate the photographs internally for
review and approval by management.
(4) Client's employees then review and edit the photographs (crop, color
correct, other (retouching) and insert the edited photographs in an advertisement design incorporating text and other graphics.
(5) That advertisement design including the photographs is then sent to a
"pre-press" company for preparation.
(6) After preparation, the advertisement is sent to various publishers - the
magazines in which the advertisement will be printed.
(7) The magazines are then printed.
(8) The printed magazines are then forwarded to distributors and mail
houses.
(9) The distributors and mail houses then distribute the magazines to
retailers and the postal service subscribers.
(10) The retailers then sell the magazines to customers, while the postal
service delivers to subscribers.

At what step (1-10) are the photographs considered "published" under copyright law?

It is my understanding that in Bagdadi v Nazar, the court held that the author's delivery of a videotape to a school was "publication." However, the fact pattern is different in my example illustrated above. It is my understanding that the work in Bagdadi v Nazar (a video) was not edited by the recipient, was not incorporated into a compilation, but was displayed to students in a classroom setting by the recipient, in essentially the same form in which is was delivered. Also, the work itself was later offered for sale by the school to third parties. In contrast, in the photography example above, the photographs are edited by the client, and never displayed or reproduced in the form in which they were originally delivered. They are incorporated in a compilation - the advertisement design, owned by the client. The compilation includes other works not authored by the photographer, and is sent by the client to various third parties for preparation and printing. And the photographs themselves are never offered for sale or displayed to third parties but are merely components of compilations (the advertisements and eventually, the magazines). The public's purchase of the magazine may or may not comprise a purchase of the advertisements within the magazine.

Thanks
Jeff Sedlik
APA Received on Mon Nov 17 2003 - 21:12:45 GMT