flickr imagesDuring a recent presentation on copyright law to the Lehigh Valley Photography Club, several members expressed an interest in knowing whether posting images to a photo sharing site such as was “publication” for purposes of copyright registration. I expressed my opinion that it is publication. I thought it would be useful to take a closer look at the issue to see whether there was a definitive answer. Unfortunately, there is not.


To understand why there is no clear answer it’s necessary to look at the 1976 Copyright Act. Keep in mind that in 1976, or similar sites did not exist and the Internet was just being born. Because the definition has not been updated since that time we have to determine whether the definition still fits technological advances and innovations developed after the law was enacted.  Here’s how the Act defines “publication”:


Section 101:  “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.


The key concepts in the definition are “distribution,” “sale,” and “transfer.”  Exchange of money is not required.  “Offering to distribute” for purposes of distribution, public performance, or display also constitutes publication. The key word here is the term “offering.” Finally, the definition contains a single exception, that is, “a public performance or display of a work does not of itself constitute publication.” So, if posting images online only for purposes of display is the copyright owner’s objective then there is an argument under the definition that such conduct does not constitute publication. The problem, however, is that the underlying assumption of posting images to a photo sharing website is the presumption that the images will be “shared,” that is, being offered to be distributed to the public (assuming public access to the sharer’s webpages).   To make matters even more complicated is that the very act of viewing photos, even on a web site not devoted to photo sharing, creates a copy of the images in your device’s memory.  Isn’t that distribution and, if so, isn’t that “publication?”  So, even the “public performance and display” exception may not be applicable.  This analysis appears to support our original conclusion that posting to a photo sharing website is publication under the Copyright Act.  Apparently, the American Society for Media Photographers agrees with this conclusion.


Let’s see what judges say about this. As you may have guessed, they have been largely silent; there are few cases.  In one case, William Wade Waller Company versus Nexstar Broadcasting, Inc., plaintiff, Waller brought a federal copyright action contending that 17 photographs with its copyright watermark were removed or cropped out in a television commercial produced by defendant. Waller contended that the infringement was willful and sought damages. The issue was whether plaintiff could pursue statutory damages if registration is made within three months after the first publication of the work. This is a requirement of the Copyright Act. The court stated, without analysis, that “Plaintiff’s act of posting the pictures to the website making them accessible to others for distribution is considered a publication.” The court relied on a 2002 New York case that held that display of a webpage was equivalent to publication.


In another case, Rogers versus Better Business Bureau of Metro. Houston, the issue before the court was whether the plaintiff’s copyright registration was valid because he said his website was “unpublished.” The court was reluctant to conclude that simply uploading webpages to the Internet was “publication” under the Act even though Wade and some other cases supported that proposition. The court concluded that although the trend favored the finding of “publication,” the conclusion was fact dependent and absent binding law or even a clear consensus the court was not inclined to negate the presumption of validity by finding as a matter of law that plaintiff distributed copies of the websites when he uploaded them to the Internet.” Instead, the court deferred to the Copyright Office which did not object to the plaintiff’s assertion in the copyright application that the websites were “unpublished.”


As noted by the court in Rogers, the end result is that there is no definitive answer to the question of whether posting images is equivalent to publication. Perhaps, the best advice is to err on the side of publication; that way you get all the attendant rights as well as a strong argument that the images were published upon posting.  Don’t forget to register the copyrights of the images within 3 months of posting them.  That way you will insure that you will have access to statutory damages should the images be infringed.

— Adam G. Garson, Esquire