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[Smokin]

Depends, displaying images and publishing images are two different things. Have the images gone up on a site for sale or distribution(=publishing)? If so the yes, all he can do is seek damages and statutory damages are unavailable. It is likely that at most damages would be a small license fee or  small use charge or the price of a print (totally guessing). (He would have to prove damages though and show that he lost money by showing his sale records and income records and "whatever")

However just because they are on the web and being displayed does not necessarily mean they were published. Like I said before I believe flicker makes prints available of some photos displayed (they sell prints), which I imagine would be a good argument to say that means they were published, (which is why I stopped displaying images there).

Maybe also him placing a copyright notice on the image also is a good argument that that is the date of first publication?

[Isaac]

However just because they are on the web and being displayed does not necessarily mean they were published.

Displaying images on a public web site means that the images are published.  But publication is not the same public domain.  The lack of a copyright notice may affect damages, but it doesn't have anything to do with whether the work is published or is protectable under  the law.  Back before the changes in law in 1964 and 1978 publication without notice and registration could make a work unprotectable, but not any more.

Further, even if you buy images, the purchase does not give you the right to copy, distribute, display publicly, etc.  If you continue to make copies, distribute, and display the image in a new way, those actions could constitute new infringements.  Perhaps the artist is currently stuck without an effective remedy, but that doesn't means you can keep on infringing with impunity.

I recognize that I'm the bad guy here...

[Smokin]

According to my conversation with the copyright office as well as a lawyer (not a copyright lawyer), displaying an image on the web is not necessarily publishing. The key ingredient seems to be if the image is for sale or being distributed somehow to the public.

http://www.copyright.gov/circs/circ03.html

What Is Publication?
The 1976 Copyright Act defines publication as “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.” An offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display also constitutes publication.

The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office.

Definetely confusing there.

[Isaac]

The following do not constitute publication: printing or other reproduction of copies, performing or displaying a work publicly, or sending copies to the Copyright Office.
Definetely confusing there.

Let's go to the statutes and see if we cannot resolve this quandry.

From 17 USC 101 (emphasis added)

A public performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

[Smokin]

Am I missing something? Seems to suggest that posting on the web does not mean it was necessarily "published".

Here is an old post elsewhere so you can see where I am coming from and maybe correct me where I might be wrong.

OK, here is an update to what I’ve been able to find out about "publishing" on the web.

I guess first off a quick recap as to why it’s important for artists to know when the date of "first publication is" the should visit:
The Perk$ That Only A Federal Copyright Registration Can Afford
Essentially an artist that registers with the copyright office within 3 months of first publication can claim legal fees and statutory damages VS. only actual damages which can be harder to prove and get.

I sent a question to the US copyright office which was:



I am an artist and I have some work that I have been posting online for a few months to show people my progress. Now that the work is done, what is the official publish date? Is the publish date the first time I posted the image even though it was uncompleted, is it the first time I posted it as a completed work, or is it not considered publishing if I posted the image on the net? 


The answer I got was a short but sweet: "The date that you posted the completed work. For more information, see Circular 3."

I also decided to call to grill someone there about the web and publishing as best I could, buy boy are their lines BUSY (that took forever to just find a day when the lines were open). Anyway, talking to the copyright office I posed the same question and the answer I got was slightly more detailed. Essentially posting the work on the web does not necessarily mean it is published, it could be "just on display". If however you are making copies available by selling it or some other method like sending out free copies to anyone who signs a guest book or whatever (MAKING COPIES AVAILABLE), then it is considered published.

This is consistent with what a lawyer in another forum PMed to me when I made the question there. She does not specialize in copyright law, but she is interested in artist's rights and the laws artists face because she is an artist herself. (That’s the disclaimer BTW, gotta love lawyers and their disclaimers ) Here is some of that convo here:

I have read elsewhere that posting an image on line does not constitute publishing for copyright purposes. I don't know if that would also be true if the image was posted for sale, which seems to be important in the copyright definition of publishing rather than posting images or WIP on a forum.

If the copyright office was correct in its assessment that posting is not publishing it would be relying on Title 17 U.S.C. Section 101 on definitions which says, in part,
"“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.
To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
The important part being: A public performance or display of a work does not of itself constitute publication.

My gut reaction just says a court may disagree about this. It may well depend on the facts in the case before them.

 


All things considered here is what I’m going to do if I want to share something I am working on with people on the web and want to protect it. For me this wont include lil practice things or group challenges or studies, but I guess it could if I cared enough about it. Anyway as recommended in circular 3:

Copyright Notice Not Required on Unpublished Works
The copyright notice has never been required on unpublished works. However, because the dividing line between a preliminary distribution and actual publication is sometimes difficult to determine, the copyright owner may wish to place a copyright notice on copies or phonorecords that leave his or her control to indicate that rights are claimed. An appropriate notice for an unpublished work might be: Unpublished work © 2007 John Doe 

So if I have my own lil Mona Lisa on my easel  , Ill using this type of notification to indicate its A)not finished, and B) protected. When I decide to make it available to the public for sale or when I sign it, that’s the date I'll use as first publication and I’ll be registering with the copyright office within 3 months of that date.

[AdamWho]

Perhaps the artist is currently stuck without an effective remedy, but that doesn't means you can keep on infringing with impunity.

The use was one time.  He hardly is being infringed upon with impunity...even if the use was blatant infringement and not fair use

[mactheknife]

To reconcile Isaac and Smokin's positions (this is kind of tangential to the main issue), "posting" a pic on the web does more than "display" it.  In transferring the data necessary to make an image show up on your screen, the receiving computer has to make its own copy--a reproduction rather than (or in addition to) a display.

Now, this may or may not constitute a "distribution."  One school of thought says it's only a distribution if a copy physically changes hands.  Of course, this would mean it's impossible to distribute anything on the net.  Another school of thought says that creating ownership in a copy suffices; you don't actually have to have a physical copy and let go of it.  The reason this is important is if the pic isn't distributed, it's probably not published ("offering to distribute" is probably meaningless in this case because the distribution either will or won't occur when it's accessed by the computer).

As a former employee of the copyright office, I'll tell you that the Office takes no official position on whether something posted on the web is published (and employees are trained to say exactly that when asked by an applicant).  They will leave it to an applicant to describe a work as published or unpublished, and leave it to the courts to sort it out.

[Smokin]

To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."

In transferring the data necessary to make an image show up on your screen, the receiving computer has to make its own copy--a reproduction rather than (or in addition to) a display.

I can't think of any form of technology that "transmits" information without copying to some degree, or without giving people an opportunity to copy it. Music over the airwaves gets transmitted to technology that can record and copy the info via itunes or mp3 play, almost all stations transmit via the internet as well. As for TV broadcasting, the information can also be copied and reproduced to accommodate satellite TV, tivos, and again the internet. Even displaying something in public in the presence of CCTV would mean that data is being copied, so I'm not really sold on that explanation.

As a former employee of the copyright office, I'll tell you that the Office takes no official position on whether something posted on the web is published (and employees are trained to say exactly that when asked by an applicant).  They will leave it to an applicant to describe a work as published or unpublished, and leave it to the courts to sort it out.

As the guy who had the phone conversation with the copyright office person, I'll tell you that I was told was that "posting images on the net does not necessarily mean it was published, that it could be considered on display as unpublished work" That if the work was made available for sale or for distribution, that it would then be more likely that the work was published. They were very careful not to offer any advice or tell me what they felt my situation was, but they did offer that information as facts.

[mactheknife]

Smokin, to quote a prof of mine, all of what you say is true, but none of what you say is helpful.  So you've shown that posting a pic on line is a public display.  I don't quibble with that.  All the law says is that displaying a work publicly does not of itself constitute publication.  This means that you can display something, do something else (like distribute or offer to distribute it), and therefore publish it even though it is also a display.  Or, your display could just be a display and not a publication.

You said:

I can't think of any form of technology that "transmits" information without copying to some degree, or without giving people an opportunity to copy it.

This is also true, but "giving people an opportunity to copy" something doesn't mean "copying" something.  Analog TV and radio don't "copy" anything they transmit.  Digital radio and tv, and the internet, work specifically by copying, not just giving someone an opportunity to copy it.  So your example isn't inconsistent with what I'm saying.  The copyright office info you got is also not inconsistent with what I'm saying.  Bottom line: internet posting may or may not be a publication depending on whether you think it's a "distribution," an "offering to distribute," or none of the above.

[AdamWho]

Final update:

The artist rejected the "use in perpetuity" language in the contract and the company gave into the extortion.... that "friend" of mine will get a nice Christmas present.

Concerning the "publication issue"  the images in question were pictures taken at a public showing of the art over two years ago.... they are "published" by any definition you would like to use.