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What constitutes a "published" work?

Robert Bell , Jun 07, 2009; 03:35 p.m.

I'm trying to decide what constitutes a published work. Besides the obvious of course, books magazines, ads etc.
If I deliver images to my client with a license to publish but no actual knowledge of which images if any were used. Are they "published"
The client uses images internally are they published?
Portrait client that purchase prints to hang in their home?
Just looking for come clarification, thanks!
Robert

Responses

Scott Wilson , Jun 07, 2009; 05:30 p.m.

I would think a published work would be one printed in a book, magazine, journal or newspaper.

Selling a photo is not the same as having it published, IMO.

In your first case where you don’t know what they did with the photo(s) I would say you don’t know if they were published i.e. the fact that they might be published is not the same as being published.

JDM von Weinberg , Jun 07, 2009; 07:21 p.m.

Ambrose Bierce said

Publish -- In literary affairs, to become the fundamental element in a cone of critics.

In general, publish means "to make available to the public," so it is by no means limited to printed items on paper.

For copyright law see (link ). For your specific case, you'll need a copyright lawyer.

John Tonai , Jun 07, 2009; 07:35 p.m.

Also, if you are trying to determine the usage price, the circulation is usually a very important factor-they should be paying partially based on how many copies will be printed, where/how they will be shown (web, catalog, magazine, etc), size and other factors. If they don't end up printing them it shouldn't matter to your pay.

Craig Gillette , Jun 08, 2009; 12:46 a.m.

The definition in para 101 of chapter 1 of Title 17 of the US Code is:

"“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."

It's my impression that this is applied to determine the dates for timing of registration and the different damages. But as pointed out, if you are in a legal dispute, you would be wise to consult an attorney experienced in intellectual property and copyright law. So it would seem if you've delivered the images with a license to publish (or use), then they'd be "published" per the definition as would selling an image for use in the home. If you just display or show them without offering to sell, etc., I'd think not. OTOH, if trying to determine "publishing" for other reasons, like you get paid more if "published," again, it might be necessary to consult an attorney because if used internally, that might still be an extensive use and worth being paid for. As an example, I'm currently working part time for a large company with over 20,000 employees just in the general area where I work, with quite a few thousand more in other divisions, locations. If an item was used on an internal website and newsletter, that might be a lot more copies than many "external" publications might produce.

Robert Bell , Jun 09, 2009; 05:40 p.m.

Thanks for all the responses. I'm just trying to figure out which images I need to file as published and which are unpublished when I fill out the copyright registration(eCO)
thanks!

Phil Indeblanc , Jun 11, 2009; 12:45 a.m.

I was in the middle of doing the same thing today. In the "published" basics, I came across the date "1989". It sounded like images after this date are regarded a bit different(?). It might be something you want to go over. Unfortuneatly I have not reread it to understand it. I watched the tutorial and yet to cr anything recent. I might hand it over to the service that does it. Paying the fees regularly for something I should learn to do myself is convenient at a price.

Richard Crasta , Mar 02, 2010; 12:45 a.m.

I am an author, and it seems to me that just because I declare a book published and make it available on the Net for someone to buy print on demand, it does not become a published work unless a substantial number of people have bought it and at least some of them have read it. If for some reason, because of my inability to publicize a work and follow up with distribution, only 20 people throughout the U.S. received the book, I doubt that constitutes publication. I would think the book would still be an "unpublished" book. In the fourth paragraph of Craig Gillette's post, I think the word "substantial" is important. I think this issue is not merely an abstract or technical one, but of practical importance. If for some personal reason, let us say sickness, I announced a publication date, and was unable to follow up with what is normally required as part of publication--publicity, physical distribution, sales--then I have the right to call the book a new and unpublished book and to market it as such.

I would appreciate any comments.

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