Hello!

I read on the Copyright Office site http://www.copyright.gov/circs/circ1.html#pub">(http://www.copyright.gov/circs/circ1.html#pub - excerpted below) that the 'display of a work' does not constitute publication in itself. As such, if my portfolio website is displaying works of mine which have not been published elsewhere, then they continue to be considered 'unpublished,' right?

And therefore theoretically can be registered at any time, as long as I register them prior to any infringing use, right? (Not that I'd want to lollygag on this, but just making sure

If I submit an entire website on CD to the copyright office, and all the separate images in that website have been previously unpublished, then the whole thing would be covered for the $30 registration fee, yet the images (being considered unpublished by the copyright office) would still be separately protected, right?

So if say, 5 of those images are stolen and used by an infringer(s) after the date of registration, each of the images would be considered as stand-alones and therefore eligible for statutory damages and legal fees -- is that right?

Just wondering - thanks! It would seem that one's own portfolio website would be considered 'a display of the work' since no form of the work as a 'material object' has been created/published...

...but on the other hand, if someone steals an image off of your site and puts it on a different website without your permission (or heck, puts it on TV!), their 'display' of your work would constitute copyright infringement because they're 'publishing' your work, is that right?

A little confused to the double meaning here, and would appreciate any thoughts in regards to website theft of illustrators' images. Thanks!

M



P.S. Or is there something in the Digital millennium Act or something more recent (which maybe I haven't yet been able to find?), which might cover this better? Sorry if that's an obvious one - but I'm still poking around meantime.


From the Copyright Office website:
http://www.copyright.gov/circs/circ1.html#pub


The 1976 Copyright Act defines publication as follows:

"Publication" is 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. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

[..]

A further discussion of the definition of "publication" can be found in the legislative history of the 1976 Copyright Act. The legislative reports define "to the public" as distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents. The reports state that the definition makes it clear that the sale of phonorecords constitutes publication of the underlying work, for example, the musical, dramatic, or literary work embodied in a phonorecord. The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phonorecords are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display.

On 12/9/02 12:25:29 PM, Michiko Stehrenberger wrote:
>
>Hello!
>
>I read on the Copyright Office
>site
>(http://www.copyright.gov/circ
>s/circ1.html#pub - excerpted
>below) that the 'display of a
>work' does not constitute
>publication in itself. As
>such, if my portfolio website
>is displaying works of mine
>which have not been published
>elsewhere, then they continue
>to be considered
>'unpublished,' right?

Right.

>And therefore theoretically
>can be registered at any time,
>as long as I register them
>prior to any infringing use,
>right? (Not that I'd want to
>lollygag on this, but just
>making sure

Right; but, given the ease with which images can be stolen from a website, the better course is to register them before putting them up.

>If I submit an entire website
>on CD to the copyright office,
>and all the separate images in
>that website have been
>previously unpublished, then
>the whole thing would be
>covered for the $30
>registration fee, yet the
>images (being considered
>unpublished by the copyright
>office) would still be
>separately protected, right?

Yes--provided you make clear in your registration materials that you are registering unpublished images and are doing a group registration of unpublished images.  You do not want the Copyright Office taking the registration of multiple images on individual website pages as registration of a collective work.

>So if say, 5 of those images
>are stolen and used by an
>infringer(s) after the date of
>registration, each of the
>images would be considered as
>stand-alones and therefore
>eligible for statutory damages
>and legal fees -- is that
>right?

Yes; provided that they were previously individually registered, whether one at a time or in an group as unpublished works.

>Just wondering - thanks! It
>would seem that one's own
>portfolio website would be
>considered 'a display of the
>work' since no form of the
>work as a 'material object'
>has been created/published...

"Material object" has nothing to do with it. The "material object" is the original--whether as flat art or a scan.  The issue regarding a portfolio website is publication, not the existence of a "material object."

>...but on the other hand, if
>someone steals an image off of
>your site and puts it on a
>different website without your
>permission (or heck, puts it
>on TV!), their 'display' of
>your work would constitute
>copyright infringement because
>they're 'publishing' your
>work, is that right?

They may or may not be "publishing" your work; they are, however, at the very least copying your work, and displaying it, without your permission.  Both are forbidden under the copyright law.

>A little confused to the
>double meaning here, and would
>appreciate any thoughts in
>regards to website theft of
>illustrators' images. Thanks!
>
>M

I trust the above has taken care of the confusion.

>P.S. Or is there something in
>the Digital millennium Act or
>something more recent (which
>maybe I haven't yet been able
>to find?), which might cover
>this better? Sorry if that's
>an obvious one - but I'm still
>poking around meantime.

The DMCA provides the means to temporarily block an infringing website--but you still need a registration to make it stick.

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

This is all very helpful, Michiko and Dan, as I finish
up my website. Now here's my question - I plan to
register all of the images on my website on a
group form as unpublished. One day I hope to get
around to registering ALL of my published
images, but the time and money involved is a
hindrance right now. I'm doing the best I can!

However, IF it should happen that one of the
images that I register as "unpublished" turns out to
have been previously published (and slipped my
mind, for example) and is later infringed upon, will
I be in any WORSE shape legally than had I never
registered it at all? I realize that I will probably not
be able to enjoy the benefits of having resgistered
it as a published image with the proper form, but I
will be in any different position
(better/worse/same) than having never registered
it at all?

Thanks! Laura

On 12/9/02 9:31:29 PM, Laura Levine wrote:
>This is all very helpful, Michiko and Dan, as I finish
>up my website. Now here's my question - I plan to
>register all of the images on my website on a
>group form as unpublished. One
>day I hope to get around to registering ALL of
>my published images, but the time and money
>involved is a hindrance right now. I'm doing
>the best I can!
>
>However, IF it should happen that one of the
>images that I register as "unpublished" turns out to
>have been previously published (and slipped my
>mind, for example) and is later infringed upon, will
>I be in any WORSE shape legally than had I never
>registered it at all? I realize that I will probably
>not be able to enjoy the benefits
>of having resgistered it as a published image with
>the proper form, but I will be in any different
>position (better/worse/same) than
>having never registered it at all?

There is no worse position than never having registered.

Assuming for the sake of argument that someone infringes a previously-published image of yours from the published source, and not from the website, an argument could be made to void the registration as fraudulent or invalid.  And if that registration is judged void, and the image was registered as part of a group of unpublished images, it calls into question the validity of the registration of the rest of the group.

I have to say that I have never yet known an artist who was not perfectly well aware of which images had or had not been published.  Your question about what might happen if publication of one of the images "slipped your mind" reminds me uncomfortably of a client I had earlier this year.  That client did not like that the defendant was demanding certain material during the discovery process.  Rather than turn over the material which it was legally required to produce--a number of contracts which might, or might not have, shed light on the transaction at issue--the client attempted to claim that it "didn't have" executed copies of any of the contracts, but only the unexecuted blank copies in its computer.  Right.

If you're going to register your work, don't try to figure angles; don't try to shave corners; don't try to play percentages.  It is not worth it.  Do it right the first time, and spend the extra few dollars if you find an image about which you are not sure.  As with contract negotiation, it is better to front-load the grief; if the image in question really ends up the subject of a dispute,  you will have quite enough to deal with without also having to be concerned about possible defects in the registration.
 
__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

Thanks Dan. At the moment it's my music photos
that I am concerned about - it it possible that a
different "take" may have been published rather
than the one being posted on the website, and I
simply do not have access to all of the
publications I've been published in going back to
1980 at hand right now  to check - and I want to
get everything that will be going up on my website
registerered before it goes online. So I'd rather be
safe than sorry I guess is my point. Rather than
risk waiting the 6 months it may take me to
research it further. I don't want to make matters
worse, but I would like to have some sort of
protection or good faith attempt at protection in
place. I suppose, if I happen to turn up a
published version at a later date, I can re-submit
the image to the proper category with the proper
documentation?

I keep much better track of my ilustrations, believe
me - but the photos are a different story.

btw, I called the copyright office and they DO
accept zip discs of images, in case anyone was
interested. Thank goodness!

On 12/9/02 10:56:06 PM, Laura Levine wrote:
>Thanks Dan. At the moment it's
>my music photos that I am concerned about - it
>it possible that a different "take" may have been
>published rather than the one being posted on
>the website, and I simply do not have access to
>all of the publications I've been
>published in going back to
>1980 at hand right now  to
>check - and I want to
>get everything that will be
>going up on my website
>registerered before it goes
>online. So I'd rather be
>safe than sorry I guess is my
>point. Rather than
>risk waiting the 6 months it
>may take me to
>research it further. I don't
>want to make matters
>worse, but I would like to
>have some sort of
>protection or good faith
>attempt at protection in
>place. I suppose, if I happen
>to turn up a
>published version at a later
>date, I can re-submit
>the image to the proper
>category with the proper
>documentation?
>
>I keep much better track of my
>ilustrations, believe
>me - but the photos are a
>different story.
>
>btw, I called the copyright
>office and they DO
>accept zip discs of images, in
>case anyone was
>interested. Thank goodness!

Photos certainly present a set of problems different from illustrations as far as keeping track of publication; more of them, the possibility of a lot of finished work which is relatively similar, and the possibility that all the work was submitted to the editor who chose the final image used--all of which distances the photographer from the act of publication.

Check out the Copyright Office website again, and look up the recent regulation changes passed to make it easier for photographers to submit group registrations of unpublished work.  There may be something there which gives you a little leeway.  

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

Hi again!


Quick question to clarify - is putting one's unpublished work on one's own portfolio website publication of the work, or not?

Sorry, the two replies to my excerpts below seem a little confusing - thanks in advance for the re-clarification. (more below)



On 12/9/02 12:25:29 PM, Michiko Stehrenberger wrote:
>>I read on the Copyright Office site >>(http://www.copyright.gov/circs/circ1.html#pub) that the 'display of a work' does not constitute
>>publication in itself. As
>>such, if my portfolio website
>>is displaying works of mine
>>which have not been published
>>elsewhere, then they continue
>>to be considered
>>'unpublished,' right?


Daniel replied:
>Right.


[...]


Michiko wrote:
>> It would seem that one's own
>>portfolio website would be
>>considered 'a display of the
>>work' since no form of the
>>work as a 'material object'
>>has been created/published...
>
Daniel replied:
>"Material object" has nothing to do with
>it. The "material object" is the
>original--whether as flat art or a scan.
>The issue regarding a portfolio website
>is publication, not the existence of a
>"material object."


Question - the Copyright Office website, in referring to publication, seems to define publication as the distribution of a 'material object' though - therefore, posting it on my own website (assuming it hasn't been published elsewhere) is a 'public display' of my own work but not publication, right? I think this is what you've said above, but I just want to be sure since you've mentioned that a (real world) material object has nothing to do with it...

To be absolutely clear - does the Copyright Office consider use of images on a website to be publication (affecting the rights and eligiblity of statutory damages, legal fees, counting as unpublished registration vs. group registration after publication, etc.) or merely 'public display'? (which does not affect any elibigility for statutory damages, legal fees, etc., etc.)

THANKS!




Daniel wrote:
>They may or may not be "publishing" your
>work; they are, however, at the very
>least copying your work, and displaying
>it, without your permission.  Both are
>forbidden under the copyright law.

This is great, thanks! I hadn't thought about that, but yes, copying and displaying are forbidden under copyright law, got it.


Side question - if you make up your own t-shirts bearing your copyrighted images, and leave them in the safekeeping of a 'friend' and some way or another those t-shirts end up getting sold and the that person keeps the profits and/or refuses to return the property to you...is that merely a breach of contract (assuming there's a verbal contract that can be proved) or is that a copyright infringement? One would be taken up in local small claims courts vs. one that would be eligible for protection under federal courts, able to cross state lines etc. right? I know it seems far-fetched, but I just thought I'd ask. Since I created and produced the t-shirts, I transferred physical inventory to the person, not source art so she didn't manufacture the images into t-shirts, merely sold physical property of mine that she wasn't supposed to -- so I previously assumed this wouldn't fall under any sort of copyright protection?

I only bring this up because the unauthorized displaying of the t-shirts in a retail store etc. etc. (with copyright registered imagery on it) was something I didn't think could be protected under federal copyright law, but now I'm curious.  If this confuses the above matter too much then never mind, but your comment sparked the other thought - thanks!

Michiko

Daniel,
If a work was published by say Time magazine and thus registered as "published" with the copyright office it then is protected if the
image is stolen and used from Laura's web site?  If this is true why is the work not covered in the opposite manner? Is it because if Laura registers the work for her site a year after it was published that leaves a year
of "infringability"? (not a legal term I think)

David Flaherty
......................
http://www.davidflaherty.com

On 12/10/02 7:54:23 AM, David Flaherty wrote:
>Daniel,
>If a work was published by say
>Time magazine and thus
>registered as "published" with
>the copyright office it then
>is protected if the
>image is stolen and used from
>Laura's web site?  If this is
>true why is the work not
>covered in the opposite
>manner? Is it because if Laura
>registers the work for her
>site a year after it was
>published that leaves a year
>of "infringability"? (not a
>legal term I think)

David, if the work is published by Time magazine and registered as part of the magazine, that registration does not cover the image itself, but the collective work which is that copy of Time, and Time's use of it there. Laura must still register her own copyright.

The entire point of the proposed amendment to Section 412 of the copyright law, discussed at length in the "Conyers Bill" folder, is that with passage of the amendment Time's registration within 3 months following first publication would operate so that the author could subsequently register the work anytime, even after infringement, past that 3-month cutoff, and still retain the right to claim attorney's fees and statutory damages--without granting Time any additional rights in the work.  But the author would still have to register to be able to enforce his or her copyright.

Short form: registration by a client of its use of the artist's image currently buys the artist nothing.  If the 412 amendment is passed, registration by a client of its use of the artist's image will give the artist a valuable free extension of some of the rights available under registration, but the artist will still have to register the work in his or her own name to enforce his or her copyright.

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.

On 12/10/02 1:40:20 AM, Michiko Stehrenberger wrote:

>Quick question to clarify - is
>putting one's unpublished work
>on one's own portfolio website
>publication of the work, or
>not?
>
>Sorry, the two replies to my
>excerpts below seem a little
>confusing - thanks in advance
>for the re-clarification.
>(more below)
>
>On 12/9/02 12:25:29 PM, Michiko
>Stehrenberger wrote:
>>>I read on the Copyright Office site >>(http://www.copyright.gov/circs/circ1.html#pub) that the 'display of a work' does not constitute
>>>publication in itself. As
>>>such, if my portfolio website
>>>is displaying works of mine
>>>which have not been published
>>>elsewhere, then they continue
>>>to be considered
>>>'unpublished,' right?
>
>
>Daniel replied:
>>Right.

The above answers your question.

>Michiko wrote:
>>> It would seem that one's own
>>>portfolio website would be
>>>considered 'a display of the
>>>work' since no form of the
>>>work as a 'material object'
>>>has been created/published...
>>
>Daniel replied:
>>"Material object" has nothing to do with
>>it. The "material object" is the
>>original--whether as flat art or a scan.
>>The issue regarding a portfolio website
>>is publication, not the existence of a
>>"material object."
>
>Question - the Copyright Office website,
>in referring to publication, seems to
>define publication as the distribution
>of a 'material object' though -
>therefore, posting it on my own website
>(assuming it hasn't been published
>elsewhere) is a 'public display' of my
>own work but not publication, right? I
>think this is what you've said above,
>but I just want to be sure since you've
>mentioned that a (real world) material
>object has nothing to do with it...

The Copyright Office refers to distribution for money, or an offering of distribution for money, not to distribution of a material object as such.  Offering stock images via a website, with no material object being produced or changing hands, is publication.  Display of portfolio images, which are not being offered for money, is not.

>To be absolutely clear - does the
>Copyright Office consider use of images
>on a website to be publication
>(affecting the rights and eligiblity of
>statutory damages, legal fees, counting
>as unpublished registration vs. group
>registration after publication, etc.) or
>merely 'public display'? (which does not
>affect any elibigility for statutory
>damages, legal fees, etc., etc.)
>
>THANKS!

See above.

>Side question - if you make up your
>own t-shirts bearing your copyrighted
>images, and leave them in the
>safekeeping of a 'friend' and some way
>or another those t-shirts end up getting
>sold and the that person keeps the
>profits and/or refuses to return the
>property to you...is that merely a
>breach of contract (assuming there's a
>verbal contract that can be proved) or
>is that a copyright infringement? One
>would be taken up in local small claims
>courts vs. one that would be eligible
>for protection under federal courts,
>able to cross state lines etc. right? I
>know it seems far-fetched, but I just
>thought I'd ask. Since I created and
>produced the t-shirts, I transferred
>physical inventory to the person, not
>source art so she didn't manufacture the
>images into t-shirts, merely sold
>physical property of mine that she
>wasn't supposed to -- so I previously
>assumed this wouldn't fall under any
>sort of copyright protection?
>
>I only bring this up because the
>unauthorized displaying of the t-shirts
>in a retail store etc. etc. (with
>copyright registered imagery on it) was
>something I didn't think could be
>protected under federal copyright law,
>but now I'm curious.  If this confuses
>the above matter too much then never
>mind, but your comment sparked the other
>thought - thanks!

There is probably a breach of contract action here--provided, of course, you can prove the terms of the contract.  There may also be a basis for a copyright action--but again, the question will come back to what the terms of the agreement were (did you give permission?) and whether you can prove them.  

__________________________
Daniel Abraham, Esq.

718-499-4006

DISCLAIMER: Material posted on the Legal Easel™ chatboard discusses general principles of law in response to issues of concern to the illustration community. Nothing in this website or the Legal Easel™ chatboard should be construed to be a substitute for advice of counsel regarding the specific facts and circumstances of an individual case. Laws and their interpretation differ from jurisdiction to jurisdiction. Legal advice addressing a specific situation should be sought from an attorney duly licensed in the appropriate jurisdiction.