Posted on by Leslie

Research

Deep in school stuff but I have a related question for you: What do you think about the published/unpublished distinction in © registration? That is, does it ever pose a problem for you? Have you ever not registered because of it (especially older unregistered images)? Have you ever fudged a submission because you just didn’t want to have to think about it? Any thoughts on the published/unpublished issue would be great. You can email me if you’d rather not share publicly.

8 Replies to “Research”

  1. (Background: I am a licensed attorney and a registered patent attorney who, though he hasn’t done scads of registrations, has done some, advised on others, and participated in copyright litigation both in the US and in Europe.)

    It’s extremely bothersome, especially because it makes it difficult when advising a photographer who’s trying to get their intellectual property ducks in a row to determine how to even file their bleeding registrations. “Well, I think I sent those to a stock agency… no, not that one, but maybe it was this one … I don’t remember if they ever put it on their site … And I think this one was on my website, does that count? … And this one I submitted to a magazine photo contest, I think they put it in their also ran pages …”

    Nightmarish.

    I’ve never fudged a registration nor advised an artist to do so, although I can understand the temptation. My reasoning, aside from the fact that it would be wrong of course, is that you’re not going to sue unless there’s substantial money involved. If there’s substantial money involved the other party’s going to look to knock out the registration. If you’re going to submit registrations that are vulnerable you’re wasting your time. Not that in the right circumstances even a later-registered work couldn’t rack up some good actual damages, but if that’s all you care about you can register later, since late registration doesn’t prejudice you against actual damage recovery.

    I certainly have advised photographers not to register as many works as they might otherwise have done partially based on the difficulty of making determinations about older works.

  2. Thanks! I agree. I’m arguing in my paper that the whole un/published distinction is anachronistic now and impedes the goals of © policy. It should be done away with.
    🙂
    -Leslie

  3. Yes the distinction is a pain and it makes it very hard to get caught up with registration. Most people simply start with current work and move forward.

    Don’t though underestimate the power of a registration certificate in any negotiation. An improper registration may not be worth much in court, but it can have a great deal of negotiating power.

  4. I’m struggling over this issue right now, actually. I just got back from a trip where I shot a lot of photos. While on the road, I retouched one image and posted it to my blog. So now I can’t register that one picture with the others because it’s been published. I have to do a whole separate registration just for that one picture.

    Or do I? After all, there is an original unretouched version of that photo that hasn’t been published, so I can include that with all my other unpublished work, right? But then if the original unretouched version is registered, do I even need to register the retouched version, or is that covered by extension of the fact that the original is registered? Does the amount of retouching matter? If it was only light retouching, is the original version considered published now?

    My solution will probably be to register the unretouched version as unpublished and include it with the others. Is that a mistake? I have no idea. Maybe I’ll register neither version just to be safe.

  5. It would be wonderful if there were no distinction btw published & non. With today’s lightning fast ability to shoot & instantly publish, the notion seems outdated.
    And who defines the term “published?” ASMP has one definition. Will the same definition be used in court?

  6. The distinction makes the whole business a royal pain in the neck. Ms Schely has it in a nutshell – what the heck is “published”? No one knows, nor can explain it in any understandable terms.

  8. It would be great if the ECO process were expanded to enable online group registration and deposit of published photographs (by year, that is, not just contained in the same unit of publication).

    Electronic registration of unpublished works is easy enough but many of us have backlogs of published images and this would ease the workload. The manual process is much more cumbersome

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