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Copyright Tutorial

Defining published and unpublished?

When is an image published?

Under copyright law, the word published is defined as “the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Offering to distribute copies to people or businesses for purposes of further distribution, public performance, or public display constitutes publication.” Therefore, simply by submitting images to your stock agency, which will do further distribution (submission and licensing), you have probably legally published your work. Exhibiting prints of your photographs in public does not constitute publication, unless you exhibit them through another party, such as a gallery, which offers them for sale (for further distribution).

 

Frequently Asked Questions about publication

Q: Is a photo published if it is on my web site?

A: If it is in a public area of the web site, it is probably published. If it is a private area of the web site, it is probably not published.

 

If you have unpublished images that you want to post on your web site, you can avoid the published/unpublished issue by registering them as unpublished images before you upload them. It is also important to be aware that registering the web site is different from registering the images on the web site.

 

Q: When I deliver photos to a client, even if none of the photos delivered is actually printed, has it been published?

A: This depends on your paperwork and your delivery memo. In some cases, the photos may be considered “published” because their delivery constitutes “an offering to distribute, for purposes of further distribution, public performance, or public display.”

 

Q: My work is hanging on a gallery wall. Has it been published?

A: Exhibiting your photographs in public does not constitute publication, unless you exhibit them through another party, such as a gallery, which offers them for sale (for further distribution).

 

Q: I would like to register published work and unpublished work at the same time.

A: You must do each on a separate form, with separate fees for each registration.

 

Q: How long after I deliver the image do I have to register the work at the Copyright Office?

A: You can register at any time, but to preserve the protection of collecting attorney’s fees and statutory damages for infringements, you have to register either before the infringement occurs or within three months of publication. If you do this, you are retroactively covered back to the actual day of publication. If you don’t make the 3-month window, you are only covered after your actual registration date. If you are infringed after this 3-month window yet before you have submitted a registration deposit, you can still register your copyrights and file suit, but you will not be eligible to ask for statutory damages and counsel fees. If you then register and another infringement occurs after the registration, you will be entitled to ask for statutory damages and counsel fees in connection with this later infringement, as long as the copyright office has received your properly completed application.

 

Q: Some of my images were published before 1989.

A: If your work was published before the Berne Convention was adopted (that is, prior to March 1, 1989), there is another condition to fulfill. Each photograph published before this date must have contained a printed copyright notice that named the applicant as the copyright owner in order to file for registration. If the publication has the printed notice, the image is covered. The deposit to the copyright office must show the photograph as it actually appeared in first publication, with proof of copyright notice. You should send tear sheets, or copies or scans of the tear sheets. You may make a group registration or individual VA registration.

 

For more frequently asked questions about registration, proceed to this page.

 

Next: What To Do if Your Registration is Rejected