At 11:35 AM 11/25/2003 -0500, you wrote:
>Many photographers use "click-through" agreements on their websites,
>requiring that viewers actively indicate acceptance of terms prohibiting
>them from copying or otherwise reproducing the contents of the web site,
>other than as necessary for viewing. . . .
>. . . might a viewer's acceptance of such terms affect the court's
>determination that web display is "publication" as was held by the court
>in Getaped.com v. Cangemi?
It might. Of course it will depend on all the facts involved. There is the doctrine of "limited publication," where a court finds that a distribution does not amount to a "publication" if the work is distributed to a limited class of persons for a limited purpose. A lot of the older cases (and some recent ones) discuss limited publication. You may want to look at Academy of Motion Picture Arts, 944 F.2d 1446 (9th Cir. 1991) which held that the well-known "Oscar" statue given to recipients of the Academy Awards was not "published." Among other things, the court noted the fact that recipients of the Oscar are prohibited from selling or further distributing it.
Bill McGrath
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