Jan
31
Internet Post as Copyright Publication
Posted by Dirk Avery at 2:28 pm under Copyright, Internet.
Suppose you take a picture of your dog. You’re a decent amateur photographer and the photo turns out great. Since it’s so good, you post it to your publicly-available website. Five months later People magazine sees the picture, loves it, and uses it on the cover of an issue. Do you have any recourse under copyright law?
Yes, but… The basic rule of copyright is that “protection subsists…in original works…fixed in any tangible medium.” 17 USC § 102. When the picture is fixed in your flash chip, it is protected by copyright. (Most likely the angle, lighting, and posing of the dog are sufficient to constitute an original work. See Rogers v. Koons 960 F.2d 301, 307 (2d Cir. 1992) (”Elements of originality in a photograph may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”)) Contrary to common belief, you don’t need to register your work with the Copyright Office for the work to be protected. § 408. However, if you ever want to sue for copyright infringement, you must register it. § 411. Moreover, copyright law provides incentives to register before or soon-after “publication.” If you don’t, you lose out on certain types of damages, but, we’ll get to that in a minute.
So, Dirk, does posting my picture to the web count as ‘publication’ for copyright purposes?
I’m glad you asked. Yes, according to a slew of courts. For instance, Judge Hellerstein of the Southern District of New York held that a website is “published” when it is accessible on the Internet. Getaped.Com, Inc. v. Cangemi, 188 F.Supp.2d 398, 402 (S.D.N.Y.,2002). Other courts have similarly held that files of various kinds are published when accessible on the Internet: A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir.2001) (music files); Playboy Enterprises, Inc. v. Russ Hardenburgh, Inc., 982 F.Supp. 503, 513 (N.D. Ohio 1997) (photographs).
In our example, you did not register for copyright within three months of publication. By not doing so, you have given up the option of seeking attorney’s fees and of electing statutory damages in place of actual damages. 17 USC § 504 & 412. Note, however, that for any infringement that takes place after your registration becomes effective, you can seek statutory damages and fees. Since People infringed your copyright before the effective date, you can only seek actual damages.
What’s the big deal about statutory damages? Copyright plaintiffs often elect statutory damages because they have no actual damages. In the example, you may not have any actual damage since you weren’t trying to shop your photograph around and the infringement didn’t preclude you completing a deal. Under § 504 you can also disgorge the defendant of its profits from the infringement, but, you, as the plaintiff, must prove the infringer’s gross revenue. This may present a tricky and expensive proof problem: how much of the revenue from the magazine can be attributed to the cover? The defendant can then prove all kinds of deductible expenses and that the profits were not attributable to the infringement ( § 504): revenue from the cover came mostly from the magazine’s reputation and the skill that went into writing the textual teasers for the articles.
The bottom line: registration in the US is permissive, but, when you post something to the Internet you lose recovery options if you don’t seek registration within three months.