Re: Web display and "publication" in photography

Patrice Lyons wrote:
>.....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. . ..." <snip> .... 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.

<<< Thanks. That is very helpful. This issue is more critical that it might seem on the surface. The registration process forces photographers and other authors to make the determination as to whether or not their works are published at the time of registration. This is the single most difficult element of the registration application process. A mistake can invalidate a registration and cost an author the protections associated with timely registration. If experts and scholars can't determine with precision whether or not a work is published, I believe that the Copyright Office should consider relaxation of its current policies requiring claimants to make that determination correctly, under penalty of the invalidation of the registration. Currently, the office allows claimants to revise a registration from published to unpublished, using Form CA, the supplementary registration. But the office does not officially allow a registration to be revised from unpublished to published, in the event of an innocent error in the determination of publication.

Back on topic, I agree that in determining publication, we need to consider the rights of publication and display, but I don't believe that we can set aside the notion that a web publication creates copies under the law.

The process of viewing an web-based image on a computer typically involves the transmission of the image from a material object (a server) to another material object (the viewer's computer), resulting in the fixation of a copy of the work on the viewer's computer hard drive, within web browser cache. Some computers also store the image in "virtual memory," another file stored on the viewer's hard drive. The viewing process also typically involves temporary storage of the image in RAM modules located on the motherboard and in Video RAM located on the computer's video/graphics card.

Section 101 provides that a copy may be fixed by any method from which the work can be perceived. Whether that fixation as a copy occurs by physical contact, chemical process, wire or satellite would seem to be irrelevant to the determination of the production of a copy. Images stored on hard drives and/or in RAM are (to quote from the definition of "copies" in section 101) "fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device."

Take for example a photograph that is created in a digital camera, transferred to a computer, and posted (either by a photographer or the photographer's client) on a web site or in email advertising, without ever having been printed on paper or other tangible substrate. This workflow is increasingly common. The image is recorded by a light sensitive device, transmitted electronically to an electronic storage medium (for example, a compact flash card), then transmitted electronically from camera to computer, from computer to web server, and from web server to the public, stored and displayed in viewers' computers.

Does the fact that no material object is physically passed from photographer to the viewing public indicate that no "copy" has been created?

Jeff Sedlik Received on Tue Dec 02 2003 - 03:15:03 GMT