Re: Re: Web display and "publication" in photography

Jeff et al -- just a footnote on the discussion of "publication." Wanted to clarify that my comments were not intended as legal advice. You would need to consult with your attorney to make a determination as to whether or not your works are publised for purposes of copyright registration. OK?

Patrice Lyons
-----Original Message-----
From: Jeff Sedlik <js[_at_]sedlik.com>
To: CNI-COPYRIGHT -- Copyright & Intellectual Property <CNI-COPYRIGHT[_at_]cni.org>
Date: Monday, December 01, 2003 5:15 PM
Subject: [CNI-(C)] 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registration from published to unpublished, using Form CA, the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revised from unpublished to published, in the event of an innocent error in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
>
>
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<https://mail2.cni.org/Lists/CNI-COPYRIGHT/>. Received on Wed Dec 03 2003 - 01:45:05 GMT