If
you create a sculptural work and then publicly display it, is that work
published or unpublished?
If
you post a photo on a website, is that work published or unpublished?
The
answer is not as simple as it appears. For purposes of U.S.
Copyright Law (17 U.S.C. § 101), publication means:
“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 itself constitute publication.”
Thus,
the key question, generally, is whether the copyright holder has authorized others
to make a copy of the work.
In
the case of the above sculptural work, the work probably is unpublished because
a "public . . . display of a work does not itself constitute publication". However, it depends on where the work
is being publicly displayed. If
you display the work in an art gallery, which is offering the work for sale,
then it would be published.
In
the case of the photo posted on a website, the work may or may not be
published. It depends on a number
of factors concerning the authority to make a copy of the photo, such as the
terms and conditions of the website, whether the website has any protection to
restrict copying or use of the photo, and whether the photo is watermarked. Based
on the facts, one court found that "posting the pictures to the website
[without any protection to restrict copying or use of the photo] and making
them accessible to others for distribution is considered a publication." William Wade Waller Co. v. Nexstar Broad.,
Inc., No. 4-10-CV-00764 GTE, 2011 WL 2648584, at *2 (E.D. Ark. July 6,
2011). But, another court found
that posting images on a website was not publication. McLaren v. Chico’s FAS, Inc., No. 10 Civ. 2481(JSR), 2010 WL
4615772, at *1 (S.D.N.Y. Nov. 9, 2010) (unpublished) (citing Einhorn v. Mergatroyd Prods., 426 F.Supp.2d 189, 196-197 (S.D.N.Y. 2006) (noting that "making a work available [on the Internet], even assuming it constituted 'distribution,' did not involve 'sale or other transfer of ownership, or by rental, lease or lending.' ").
Determining whether a work is published or unpublished is important because it affects the window of time you have to
register the work. If the work is not timely registered, then you could lose the ability to collect attorney's fees and
statutory damages for infringement.
- HP
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