Originally Posted by dledeaux
How is there a difference? In the US the copyright is automatic at the moment of creation.
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”
Somewhere around 1978 copyright laws in the US changed in favor of the creators. Prior to 1978 obtaining copyright required that you be published, but from what I understand this is not the case any longer.
Benefits of Copyright Registration
One key point is as follows:
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
The concern I had was what happens in the following scenario?
I take some photos of a model. I post some photos to my Flickr account, and I give the model her photos. Three months after creation
I decide to register my photos with the U.S. Copyright Office. If you follow the copyright registration procedure, you cannot mix "unpublished" with "published" photos within a single copyright registration application. Thus, you need to know which of your photos have been published and which haven't so that you can segregate them and make separate applications.
So what constitutes published versus unpublished? Does my posting of some of my photos to my personal weblog, Flickr account, and/or G1 constitute publication? What if the model posts her pictures to her MySpace account? How would I ever possibly keep track of which pictures went where?
After bashing around a few different photography sites, I have come to the conclusion that nobody yet knows exactly what constitutes publishing with regard to the internet world.
The author of that excerpt: Carolyn E. Wright is a licensed attorney dedicated to the legal needs for photographers.
Some people believe that if you make stuff available to the general public then you have published or created a publication. Not necessarily.
Publication – The distribution of copies of a photograph to the public by sale or other transfer of ownership, or by rental, lease, or lending; a work also is published if there has been an offering to distribute copies to a group of persons for purposes of further distribution or public display. Displaying a work, without doing anything else, does not constitute publication.
The courts have not yet addressed the issue of whether posting your images on the web constitutes publication for copyright issues. It most likely is dependent on how and where it is posted. If you put your photo on a website with any implication of selling/distributing it, then it would most likely be deemed published. Posting on a forum such as NatureScapes.Net for critique probably doesn't meet that threshold. Since members have discussed the possibility of selling images from the NatureScapes.Net Portfolios, posting images there probably would be considered publication.
If you display your photos in a gallery or office but do not offer them for sale or lease, they probably would not be deemed published regardless of how many people view them.
The 1976 Copyright Act defines publication as follows:
“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.A further discussion of the definition of “publication” can be found in the legislative history of the 1976 Copyright Act. The legislative reports define “to the public” as distribution to persons under no explicit or implicit restrictions with respect to disclosure of the contents. The reports state that the definition makes it clear that the sale of phonorecords constitutes publication of the underlying work, for example, the musical, dramatic, or literary work embodied in a phonorecord. The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phonorecords are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public performance, or public display.
I found the television information interesting.
I could go on and on to discuss what I have learned. But the earlier quote by Carolyn E. Wright seem to be the most succinct and on point message.
Note, others appear to voice a different opinion such as ASMP.
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.
It took me a while to learn that there is no definitive answer as yet. My interpretation, from my readings as well as Wright's message, is whether or not your pictures have been offered for sale or lease for the purpose of further distribution, public performance, or public display determines the publication status. Simply posting your photos to a website for public viewing does not constitute publication. As the Copyright Website states, "A public performance or display of a work does not of itself constitute publication."
From my readings and from Carolyn E. Wright's article, I believe ASMP's definition is too narrow.
Others are free to agree or disagree or whatever. Until there is a court case that provides better guidance, I am content with my understanding.