Best Business Practices for Photographers [163]
In the event that I am shooting work for a photo agency—even supposedly speculative assignments—their intent, as well, is to further distribute it. Further, the posting of images on a website in and of itself does not constitute publication, especially if it's a hidden section of your website. However, if it's in a section, such as on the PhotoShelter online delivery platform, where there is an offering to license the work for a fee, that would constitute an offering for the purposes of further distribution and would meet the "published" requirements.
Further, the rulings in many cases state that the distribution of just a single copy to a single company or individual can constitute publication. Although case law deals with differing degrees of use and the inevitable inconsistencies among the various courts as to interpretation, an overarching guideline is whether a copy (and a copy can include an original) was distributed with restrictions on the further distribution or use of the copy. The only real reason that "published" mattered was that the origins of federal copyright required work to be published in order to enjoy the benefits of copyright, and that is the basis for much of the confusion that exists today.
Recommended Reading
Duboff, Leonard D. The Law, In Plain English, for Photographers (Allworth Press; Revised edition, 2002).
Krages, Bert P. Legal Handbook for Photographers: The Rights and Liabilities of Making Images (Amherst Media, 2001).
Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (The Penguin Press HC, 2004).
Litman, Jessica. Digital Copyright: Protecting Intellectual Property on the Internet (Prometheus Books, 2000).
Patterson, Lyman Ray. Copyright in Historical Perspective (Vanderbilt University Press, 1968).
Thierer, Adam D. and Wayne Crews. Copy Fights: The Future of Intellectual Property in the Information Age (Cato Institute, 2002).
Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press; Reissue edition, 2003).
Chapter 18 The Realities of an Infringement: Copyrights and Federal Court
As noted in Chapter 17, copyright infringement is not a matter of if, it's a matter of when. Knowing this, like knowing, say, that you will likely have your home broken into at some point, allows you to plan for this eventuality. Photographers covering a football game will, in addition to their long lenses on monopods, also wear (usually around their neck and at the ready) a body and a wide lens, planning on the likelihood that a pass will come their way and they'll want the shot. We carry more than one memory card in case we need it, and we have numerous other solutions that mean protection from the unknown eventuality. That said, you'll want to be prepared for what you can expect.
What to Do When You're Infringed
When you discover an infringement, get upset. Someone has just stolen something from you. Surely you get upset when your wallet is stolen, or your car, your money, or any other asset you've worked hard to earn. One day, I was walking the halls of Congress with John Sebastian, a well-known musician, and I was accompanying him to then-Rep. Sonny Bono's office for a meeting on protections for songwriters. I asked him how he handled copyright infringements. He responded that infringements are like water in a sieve: "You'll never catch them all, but when you do, go to the hilt to protect yourself and your work." I thought this was pretty good advice.
Now that you've gotten all worked up, stop and think about how it occurred. Was it lifted from your website or your agent's website, or was it a client who assigned you to shoot something for a prescribed fee and associated license and then used it beyond that scope, either maliciously or accidentally?
I often find that the infringement is a use