More on Copyright That You Need to Know

A few weeks ago, we published a series of posts about Copyright.  We were fortunate to have attorney Linda Joy Kattwinkel of Owen, Wickersham & Erickson, P.C., share her experiences and advice on the the issue.  We received many emails of support for addressing what can be a confusing topic.  One comment in particular, form photographer Jeff Singer, seemed like a good one to be addressed in a new post. 

Thank you Jeff for sharing your thoughts.  And, thank you Linda Joy Kattwinkel for generously giving more of your time to this topic.

Jeff Singer:  For client work, I’ve always considered all my images “published” because typically a client is sent a link to all the proofs from any given shoot soon after the shoot. So, as you mention above, the image are available for download (albeit, typically to only a few people).

So given this, I’ve always lumped them all into a group of photographs for the month and called it “Photographs May 2015” or something along those lines. I’ve never had any problems with the registration (mailed in FormVA) but I’ve always wondered if they would be easily invalidated should it ever be challenged in court. I’ve always assumed the people at the copyright office approving the forms aren’t exactly scrutinizing the forms and as long as they see all the fields filled in they go ahead an approve it.

My problem with the copyright process is that it seems like it’s geared toward making invalidation far too easy. There are way to many convoluted rules that people at the copyright office can’t even clarify and if you do something wrong with your registration the copyright will be invalidated.

Linda Joy Kattwinkel:  Thanks Jeff. I share your frustration, and this is a good question. I think the decision regarding whether to call images posted online “published” or “unpublished” deserves more discussion.

Technically, under traditional circumstances (before the internet, when “publication” meant distribution of tangible printed copies to the public), the law was that distributing copies just to a few people (such as a client) for private consideration did not count as “publication.” So that would not be a good rationale for considering your images “published.”

However, I think you are ok designating images posted online as “published” works, even if you aren’t giving any overt permission to download them. As mentioned in the blog, the Copyright Office refuses to make a decision about this, leaving it up to you to decide. While the courts have not created clear precedent on the issue either way, the few court decisions on this issue have given deference to the Copyright Office’s decision to allow the registration — either for “published” or “unpublished” images.

Courts that consider works posted online to be “unpublished” base their reasoning on the technical fact that an image is merely being displayed on screen, and no tangible copies are being distributed by the photographer.

Courts that consider works posted online to be “published” base their reasoning on the fact that when images are posted online, the public has an immediate ability to see and copy the images, in the same way as traditionally, the public had that immediate ability to copy only upon distribution of tangible copies. In the traditional context, an image merely on “display” in a gallery, for example, could not easily be copied.

When you post images on a publicly viewable website, even though you aren’t authorizing tangible copies to be made, you are vulnerable to the same level of infringement as if you had already distributed tangible copies. So, the reasoning goes, you should have the same benefits of registering your works as “published,” most importantly, the 3-month grace period, which gives you all the enhanced remedies for early registration even if the copying happens before you registered, so long as you register your published images within three months of their publication. This 3-month grace period is not available for unpublished works.

I agree, you cannot rely on the folks at the Copyright Office to give you guidance. Fortunately, it is not particularly easy to invalidate a registration. A mistake has to be “material” and usually, willfully fraudulent, for a registration to be invalid.

As we know, images posted online can be, and often are, copied immediately. So, if you want to err on the safe side, I think registering images posted online as published works is a god strategy.

Linda Joy Kattwinkel is an artist (painter) and a lawyer for artists with the firm of Owen, Wickersham & Erickson, PC in San Francisco. She was an illustrator and graphic artist before she became an attorney. She helps her clients with licensing and contracts, and has successfully prosecuted and defended many infringement claims on behalf of photographers. Some of her local photographer clients include Jim Marshall’s estate, Jim Erickson, Steven Sommerstein, Charles O’Rear, Max Fallon, Dennis Anderson, Caren Alpert, and Elena Kulikova. Other prominent clients in the visual arts include Craig Frazier, Michael Schwab, Howry Design, and Hello Kitty.

Ms. Kattwinkel is the author of Legalities, an online column on legal issues for artists and designers for AIGA|SF,  http://www.owe.com/resources/legalities/, and various published articles. She can be reached at ljk@owe.com.

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