Daniel wrote:
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.


Interesting. I'm splitting hairs, but on my website I merely show examples if past work for clients and my personal work, not offered for sale.

Often a client will email wanting to license one particular image for secondary use (stock use?) but since it was not explicitly offered for sale I guess it would still be considered 'unpublished' work if the images were not previously published in the real world.

Some of the same images in my portfolio are being offered for sale on t-shirts on a third-party site which is linked to my main site.

If an infringer steals an image from my portion of the site (granted this will be impossible to prove which is 'unpublished' or whether they steal an image from the t-shirt sales portion of my site (actually someone else's site linked to mine) would make a difference then as to whether the resulting infringement damages would be eligible for statutory damages and legal fees (if taken from the t-shirt portion of the site - considered 'published'- which shows a full-frame of the source image with a copyright notice) or just eligible for actual damages (if stolen from my portfolio section of the site - considered 'unpublished').

Wow, this is a bit of a mind-bender. Have there been any cases that you've heard of like this which have come up recently?

Yeah, splitting hairs - thanks for humoring me.

Best,
Michiko

On 12/10/02 1:52:24 PM, Michiko Stehrenberger wrote:
>Daniel wrote:
>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.
>
>
>Interesting. I'm splitting
>hairs, but on my website I
>merely show examples if past
>work for clients and my
>personal work, not offered for
>sale.
>
>Often a client will email
>wanting to license one
>particular image for secondary
>use (stock use?) but since it
>was not explicitly offered for
>sale I guess it would still be
>considered 'unpublished' work
>if the images were not
>previously published in the
>real world.

If you have sold rights to an image from your portfolio site, that image has been published.

>Some of the same images in my
>portfolio are being offered
>for sale on t-shirts on a
>third-party site which is
>linked to my main site.
>
>If an infringer steals an
>image from my portion of the
>site (granted this will be
>impossible to prove which
>is 'unpublished' or whether
>they steal an image from the
>t-shirt sales portion of my
>site (actually someone else's
>site linked to mine) would
>make a difference then as to
>whether the resulting
>infringement damages would be
>eligible for statutory damages
>and legal fees (if taken from
>the t-shirt portion of the
>site - considered 'published'-
>which shows a full-frame of
>the source image with a
>copyright notice) or just
>eligible for actual damages
>(if stolen from my portfolio
>section of the site -
>considered 'unpublished').
>
>Wow, this is a bit of a
>mind-bender. Have there been
>any cases that you've heard of
>like this which have come up
>recently?
>
>Yeah, splitting hairs - thanks
>for humoring me.

You are obsessing about "publication" when what you need to be concerned about is registration, for without a registration you cannot enforce anything against anyone.

Publication is important for two reasons;

1) You can group-register unpublished works for a single fee on a single form, which is inexpensive.  You cannot group-register published works, save for certain exceptions, but must register them individually (separate form and separate fee), which is expensive, and

2) Statutory damages and attorney's fees are available only if a work has been registered prior to infringement, with the single exception of a published work registered within three months of FIRST publication.    

Once the work is registered, you don't have to worry about whether it is published or unpublished at any given moment.  Until it is registered, it is for all practical purposes unprotected.

__________________________
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.

Daniel,
I've recently completed my own website and never even thought of registering the images until now, so I owe you and the rest of the posters my thanks for that.  
 
My question came up when I went to the US copyright website and started reading there.  You mentioned that an unlimited number of unpublished works can be registered at the same time with a simple form VA.  However, you also said to avoid having the images seen as a collection here:
 
"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. "
 
On the Copyright Office's website, the only information I could find regarding group registration of artwork is as follows:
 
"Unpublished Works

A group of unpublished works may be registered as a collection if all the following conditions are met.

The elements of the collection are assembled in an orderly form.
The combined elements bear a single title identifying the collection as a whole.
The copyright claimant or claimants for each element in the collection are the same.
All the elements are by the same author, or if they are by different authors, at least one author has contributed copyrightable authorship to each element.

NOTE: Works registered as an unpublished collection will be listed in the records of the Copyright Office only under the collection title."

I was unable to find anything else regarding group registration of individual unpublished art pieces either on that site, the form VA itself, or the form's instructions.
 
So, am I missing something?  Or just being much too literal in my reading (which I freely admit happens quite often)?  
 

 
Regards,
Patrick Gannon

On 12/11/02 8:09:41 PM, Patrick Gannon wrote:
>Daniel,
>I've recently completed my own
>website and never even thought
>of registering the images
>until now, so I owe you and
>the rest of the posters my
>thanks for that.
>
>My question came up when I
>went to the US copyright
>website and started reading
>there.  You mentioned that an
>unlimited number of
>unpublished works can be
>registered at the same time
>with a simple form VA.
>However, you also said to
>avoid having the images seen
>as a collection here:
>
>"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. "
>
>On the Copyright Office's
>website, the only information
>I could find regarding group
>registration of artwork is as
>follows:
>
>"Unpublished Works
>
>A group of unpublished works
>may be registered as a
>collection if all the
>following conditions are met.
>
>The elements of the collection
>are assembled in an orderly form.
>The combined elements bear a
>single title identifying the
>collection as a whole.
>The copyright claimant or
>claimants for each element in
>the collection are the same.
>All the elements are by the
>same author, or if they are by
>different authors, at least
>one author has contributed
>copyrightable authorship to
>each element.
>
>NOTE: Works registered as an
>unpublished collection will be
>listed in the records of the
>Copyright Office only under
>the collection title."
>
>I was unable to find anything
>else regarding group
>registration of individual
>unpublished art pieces either
>on that site, the form VA
>itself, or the form's
>instructions.
>
>So, am I missing something?
>Or just being much too literal
>in my reading (which I freely
>admit happens quite often)?

Actually, Patrick, you are being subjected to the difficulties of bureaucratese.  Please note that what I referred to was not a "collection," but a collective work.  While the two sound similar, the difference between them is vast.

A "collective work" is an assembly of different elements, such as a magazine which contains art and written articles by many different authors ("author" being used here in the copyright sense, as a creator of any copyrightable work); an encyclopedia; or--this is important--a website which contains multiple works by the same author which have been published at different times, or which combines published and unpublished work.  

Copyright in a collective work applies to the collective work as a whole; to the configuration of that particular assembly of components, but does not extend to the individual components themselves.  That is how it is possible for Magazine X to have a copyright in the issue of the magazine in which your work appears, while you retain the copyright to the image; Magazine X has a copyright in the collective work--the configured components--while you have a copyright in one particular component, which you have licensed Magazine X to use in that particular collective work. Because it only applies to the configuration, you do not want to register a website as a "collective work."

The "collection" which is referred to in the Copyright Office material you quote is simply the overall designation for the unpublished work being registered, e.g.; "my unpublished work for the week of December 1-7, 2002."  The material has to be assembled "in an orderly fashion," i.e., numbered, named or both, so that a) the examiners can distinguish among the works if one should happen not to be copyrightable, and b) so that it can be found again if the copyright becomes an issue.  The copyright registration of the unpublished collection covers each work in the collection individually, as indicated by the following introductory line to the section on registering unpublished works in the Copyright Office circular "Copyright Registration for Works of the Visual Arts":  "Two or more individual works may be registered with one application and fee as follows:".  (Emphasis added.)  "Individual works" means that the registration for the collection covers the works individually.

Back to websites.  It is possible to register all the images on a website as an unpublished "collection," and thereby provide registration coverage for all the images there--provided that none of the images has ever been published previously, which is not the case for the vast majority of illustrator websites.

If any of the work on the website has been published, it has to be individually registered separately unless it is covered by one of the exceptions, as for example the group-registration available for published contributions to periodicals, in which case it would have to be registered separately with other contributions to periodicals.  The unpublished work could still be group-registered without including the previously-published material, but it would be wise to just register the images, as images, when doing this, to avoid giving the examiner the impression that you are trying to register the website as a whole.  

__________________________
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.

Ah, bureaucratese, the language that makes my head catch fire from the inside.

Thanks, Daniel.  Your answer cleared my confusion right up, as well as anything else that may have been percolating.

regards,
Patrick Gannon

On 12/11/02 11:42:52 PM, Patrick Gannon wrote:
>Ah, bureaucratese, the
>language that makes my head
>catch fire from the inside.
>
>Thanks, Daniel.  Your answer
>cleared my confusion right up,
>as well as anything else that
>may have been percolating.
>
>regards,
>Patrick Gannon

Glad I could clear this up.  It's an important distinction to know, and the Copyright Office writings are not as helpful here as they could be.  

I had a case earlier this year where the opposing counsel tried his best to erase the distinction between "collective work" and "unpublished collection" in his answer, as part of his overall effort to explain why his infringing client did not, supposedly, infringe.  I was looking forward to arguing the matter in court, but the  case settled before we got to trial.

__________________________
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.