Web display and "publication" in photography

Just a few thoughts in this context: section 106 of the U.S. copyright law lists the following as an exclusive right in copyrighted works: the right to distribute copies or phonorecords of a copyright work to the public;" and, under section 101, "copies" are defined as "material objects, other than phonorecords, in which a work is fixed by any method now known or later developed. . ..." Further, "publication" is defined in the law as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending" (there is also a reference to the offering to distribute copies or phonorecords). Since there is no "copy" (in the copyright sense of a material object) that is made available to the public at an Internet site (physical objects are generally not known to move over wires or be transmitted via satellite), the rights of public performance and/or display, not the distribution, usually come into play in this context. Thus, from a copyright law perspective, it may be asserted that there is no "publication" of a copy of a copyrighted work when the work fixed in some tangible form in made available for access at an Internet site. There may be a copy made of the work at the point of reception, but it is not the same copy that existed at the point of origination. This has important ramifications for the application of other sections of the copyright law, e.g., section 109(a) (there was a copyright office proceeding in recent years re this section). Does this help?

Regards,

Patrice Lyons
-----Original Message-----
From: William T. McGrath <WMcGrath[_at_]DMMLaw.com> To: CNI-COPYRIGHT -- Copyright & Intellectual Property <CNI-COPYRIGHT[_at_]cni.org>
Date: Tuesday, November 25, 2003 4:01 PM Subject: [CNI-(C)] Re: Web display and "publication" in photography

>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
>
>_________________________
>William T. McGrath
>Davis, Mannix & McGrath
>125 S. Wacker Dr., Suite 1700
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<https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Mon Dec 01 2003 - 06:35:34 GMT