DPP Home Business What Do You Really Know About Copyright Law?

Tuesday, February 23, 2010

What Do You Really Know About Copyright Law?

Legal issues about your photography can be confusing, but becoming knowledgeable in the area is part of being a professional in the 21st century

The Copyright Act defines “publication” as the distribution of copies of a work to the public “by sale or other transfer of ownership, or by rental, lease or lending.” However, the same definition also contains a caveat that the public display of a work does not itself constitute publication. The Copyright Office’s fact sheet for photographs provides little assistance. According to the Copyright Office, “The definition of publication in the U.S. copyright law does not specifically address online transmission. The Copyright Office therefore asks applicants, who know the facts surrounding distribution of their works, to determine whether works are published.”

Some scholars have attempted to reconcile the notion of “transfer of ownership” of a copy with the caveat about public display, suggesting that the distinction is whether commercial exploitation is involved. However, this distinction may not be applicable in infringement cases, where there may be no commercial exploitation, but where copyrights are being violated nonetheless.

Other scholars have suggested that the key to determining whether a photograph is published is whether members of the public are capable of obtaining a possessory interest in copies of the photograph (stated in simple terms, this means being able to lawfully acquire a copy). The elegance of this approach rests in its simplicity. Indeed, using such an approach, it makes perfect sense that a photograph hanging on display in a gallery—where the public can’t take away a copy—isn’t published, while copies of posters displaying the same photograph, when sold to the public, would be deemed published. However, for all of its elegance, this approach falls apart when one considers how images are displayed in a web browser.

With most web browsers, viewing a website necessarily results in the copying of the elements of that web page—text, graphics, formatting instructions, etc.—to a cache on the computer where the browser is running. Once downloaded, these elements are then displayed in the web browser. Thus, at a technical level, the very act of viewing a web page may result in the copying of every item appearing on the web page. Even when a viewer is finished using the web browser, the files will remain in cache for some period of time (it’s this caching that enables some browsers to reload frequently visited websites more quickly, because the browser doesn’t need to download every element on the web page again). Thus, even where photographers have used JavaScript in an effort to prevent users from “right-clicking”—the act of bringing up a context menu that often provides the option of saving the image—on a web page, that sort of security doesn’t prevent a web browser from copying the web page to cache.

Considering that a copy is made merely be loading a web page into a browser, it’s no surprise that some courts have considered a work published once it’s placed on a website. Still, others have determined that since copyrightable material appearing on a website is capable of being downloaded through “right-clicking,” the material on the web page is deemed published. One court even went as far as to suggest that a website is deemed published the moment it goes live on the Internet (even before anyone had visited the website).

The unfortunate reality is that the disagreement among scholars and courts as to what constitutes “publication” when dealing with online mater-ial is unlikely to be resolved anytime soon, and Congress seems far more interested in “orphan works” (in June 2009, Sen. Orrin Hatch announced during a keynote address that he was actively working toward the passage of orphan works legislation this session) than they do clarifying whether online use of a photograph constitutes “publication” or “display.” As a result, photographers who allow their work to be used online before registering the copyright will need to be cautious when filing a copyright infringement action, and determine prior to filing whether the law of the particular district or circuit views the online use as “publication” or “display”; the determination may even justify the inconvenience of filing in a different jurisdiction.

There is, however, an alternative for photographers whose images may be used for advertising or promotional uses: preregistration. While the cost of preregistration alone is $100, preregistration can, under certain circumstances, preserve the photographer’s right to recover statutory damages and attorney’s fees. The other option is to take advantage of the Copyright Office’s e-filing system and work registration of the images into your workflow in such a way that the images are registered before a client has the opportunity to use the images online.


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