One of the hurdles that photographers face when registering their copyright is determining whether the work is published or unpublished. This may sound like a straightforward question, but when you look at the last time the definition of ‘published’ was updated, you’ll be surprised to find out it hasn’t changed since the Copyright Act was first enacted in 1976. This definition predates the internet as well as the age of social media.
The statutory definition states, “Public performance or display of a work does not of itself constitute publication.” 17 U.S.C. § 101 Then, when we look at the Copyright Office Compendium in section 1008.3(B), the chapter governing websites and website content states, “the U.S. Copyright Office considers a work ‘published’ when it is made available online if the copyright owner authorizes the end-user to retain copies.” The Compendium continues, “If downloading, reproducing, or retransmitting is facilitated in some manner by the website, there may or may not be an implied license to distribute the work, in which case the work may or may not be considered published.” Are you confused yet? You’re not alone.
The Copyright Office, in a Final Rule released on June 22, 2020, acknowledges this confusion by stating, “The Office understands that determinations regarding the fact and timing of publication may present difficult legal questions, especially in the online context. However, the statute requires that the registration application include, for published works, the date and nation of the work's first publication.” This is one of the issues that PPA seeks legislative action from Congress and clarification from the Copyright Office on. Currently, the copyright law is confusing and vague for creators. This is why an updated definition is needed to establish what is considered ‘published’ and what is not.
One of the methods for protecting yourself as a copyright holder and your intent to publish or not publish your work is making your intentions known. When you include “All Rights Reserved” or a copyright symbol on an image, this establishes your intentions that viewers are fine to share links to your content but not to copy your creation to their website.
You make ask yourself, what is the point of all this? Publication is important because unintended consequences may arise if you need to file a copyright infringement lawsuit in the future. Published works are given a grace period of three months for the copyright registration to be filed and will permit you to seek statutory damages and attorneys’ fees if the infringement occurred after the work was published. For an unpublished work, you will only be able to recover statutory damages and attorneys’ fees if the registration date is prior to the date of the infringement. Consequently, on average, published works will likely qualify for statutory damages and attorneys’ fees over unpublished works.