Re: Web display and "publication" in photography

I am responding to one of Jeff Sedlik's comments regarding the registration procedures of photographs posted on a web site; specifically as to whether to register photographs as published or unpublished works.

Our basic policy in the Copyright Public Information Office is to state that the Copyright Office has not taken a position as to whether posting materials on the Internet constitutes publication and we refer to page 3 of Circular 66 "Copyright Registration for Online Works": http://www.copyright.gov/circs/circ66.html.

The reason that the Copyright Office takes no position on the effect of posting works online is that the law on this issue is currently unclear. The definition of "publication" in the Copyright Act of 1976 does not specifically address online transmission. In addition, different factual circumstances may affect the outcome of the analysis. The long-standing practice of the Copyright Office has been to ask the applicant (who knows the facts surrounding distribution of copies of a work) to determine whether the work has been published or not. Our information staff should not be advising photographers (or others) about whether or not posting of a photograph on a photographer's website constitutes publication.                                                                                 

Peter M. Vankevich
Head, Copyright Information Section
U.S. Copyright Office
101 Independence, Ave, SE
Washington, DC 20559-6000
Tel.: 202 707-0600
FAX: 202 707-6859
Email: pmva[_at_]loc.gov
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>>> js[_at_]sedlik.com 11/17/2003 4:25:59 PM >>> Many photographers regularly register photographs as "published" after posting the photographs on their own web sites. They do this to mitigate uncertainty regarding the publication status and publication dates of their work after submission to a publisher. The Copyright Office's Public Information Officers have reportedly advised some photographers that posting of a photograph on a photographer's website does not constitute publication and that such works should be registered as unpublished if not published elsewhere. It is my understanding that for the purposes of registering online works such as web sites, that these works are regularly registered as "published" and that the courts have held that such works are in fact "published" once they appear on the web. However, this is admittedly second-hand information. I am aware of the definition of "publication" as stated in title 17, especially the fact that mere public performance of a work does not constitute publication. I would appreciate any comments or references to case law on publication as it relates to display of works on the web.

Further questions on this topic:

(2) When a viewer visits a photographer's website, the images viewed
are downloaded by the viewer's computer into browser cache. It would seem that by posting photographs on a website, the photographer is providing potential viewers with an unstated, gratis license to make copies of the photographs for the purposes of viewing within a browser. The viewer's action in entering a URL or clicking on links then causes the image to be copied onto the viewer's computer. To what extent does this copying constitute ""transfer of ownership," "rental," "lease," or "lending" as each of these terms relate to the publication requirements stated under section 101?

(3) When an image is posted on a website viewing, the image that a
viewer sees in a web browser on screen is not directly transmitted between the photographer's website and the viewer's browser. Once posted on the photographer's server (or a server owned by a 3rd party), that image is then further distributed by computers and equipment belonging to others, before making its way to the viewer's screen. To what extent does the mere delivery to others for purposes of further distribution cause the photograph to be "published" under copyright law?

(4) If photographs are displayed on a photographer's website for the
express purpose of sale as fine art prints or license as "stock" photographs, does this qualify as publication to a greater extent than photographs that are not offered for sale or license, but are displayed as examples of the "style" and quality of the photographer's work, in the interest of securing photography assignments from potential clients visiting the site?

(5) Many photographers post copyright notice, terms and condition on
their websites, warning visitors that they may not copy or use the photographs from the site without advance written permission from the photographer. Does this stated restriction affect the determination as to whether or not the display of the photographs on the site constitutes "publication?"

(6) To what extent does the level of web traffic (number of
visitors/viewers/recipients) affect the determination of publication, if at all? To use an admittedly extreme example, if the images are openly available for public viewing on a web site, but only one person other than the author visits that web site and views the photographs, does that in any way affect the determination of publication, as compared by the same determination for a web page viewed by thousands of visitors?

Thanks in advance for your thoughts on the above.

Jeff Sedlik
APA Received on Thu Nov 20 2003 - 21:30:32 GMT