Published or Unpublished: Why Does it Really Matter Anyway?
by Eric L. Register
There are very few photographers, if any, who would rather be thinking about the mechanics of registering their images with the Copyright Office than being in the studio or out on location shooting new images. After all, what rouses you from your bed every morning is the excitement of capturing that next perfect image, whatever the subject. But as we photo attorneys have been preaching from our soapboxes for many years to every photographer within earshot, registering your images is tantamount to ensuring that your children are properly locked into their car seats before you ever leave the driveway. That is to say, the most effective way for a professional photographer to fully protect his vital assets (his images) is to register the images with the Copyright Office and watermark every image with a proper copyright notice. If you take these two steps to protect your images, you will enjoy all of the protections copyright law affords; moreover, you will have the full force of copyright law behind you should you ever suffer an infringement. There simply is no question that registration is an absolute necessity.
However, there is another vital concept that is closely associated with the registration process and protecting your images that is worthy of discussion: that is, the status of your images as “published” or “unpublished.” Because the published versus unpublished issue is intimately linked to both effective registration and notice, the picture professional would do well to have a good, working understanding of what actions constitute publication under the current law.*
Why does the published versus unpublished classification matter?
Historically, under the Copyright Act of 1909 and until 1978, an artist’s work did not qualify for federal copyright protection until the work was published and, at the time of publishing, displayed a proper copyright notice. Under the old law, only published works could be protected. Under current U.S. copyright law, rights no longer depend upon this classification, but the classification still plays a vital role in securing and maintaining maximum control over artists’ rights to their artistic works, including photographs. Today, there are three prominent ways in which the publication classification directly affects a photographer’s exclusive rights to his images:
1. Proper registration of images with the U.S. Copyright Office
While it is true that copyrights spring into existence the instant an artistic expression is reduced to some tangible medium (such as analog film or a data card), those rights are of little value without registration.
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Eric L. Register is a photography enthusiast and partner with Register | Lett LLP in Atlanta, Georgia.
This ASPP Arrow article is intended as a general discussion of the topic and not as professional advice. Readers should secure appropriate advice before taking action on the topic discussed.
Nothing in this article should be construed as legal advice relevant or applicable to any particular situation, nor does this article create any sort of attorney-client relationship or engagement between the reader and Eric L. Register or the law firm of Register | Lett LLP.