Give up photographer's rights or risk being sued?

Started Feb 25, 2012 | Discussions thread
Richard Weisgrau Veteran Member • Posts: 3,530
Legal case that posting on the Internet is Publication under © Act.

Rdefen wrote:

(3) So do you have a case in which a District Court explicitly says posting to your own web site is "publication" as the term is used in the '76 Act ?

Yesterday I did not when I replied to your criticism of my post. However, I do have the case now.

There is court case deducing the issue of whether posting on the Internet constitutes publication for purposes of the Copyright Act.

I have copied text below from a Paper (When and Where Does an Internet Posting Constitute Publication) which can be read at http://iplj.net/blog/wp-content/uploads/2011/03/C06_Marter_20110315_FINAL.pdf

Please note the paper cites Getaped.com v. Cangemi.105. Also, in the last paragraph please not the Supreme Courts and other courts reliance on the legislative History.

Begin excerpt

CLASSIFYING INTERNET POSTINGS 513 1. The Getaped Case

The only reported decision specifically addressing the issue of whether posting a work on the Internet, without more, constitutes publication for purposes of the Copyright Act is Getaped.com, Inc. v. Cangemi.105 In Getaped, the owner of a website advertising motorized scooters sued his competitor, alleging copyright infringement in connection with the creation of a rival website. The plaintiff had registered his copyright after infringement occurred, but within three months of having posted the content to the public website.106 If the court determined that the plaintiff’s Internet posting was a publication, then the plaintiff would be entitled to statutory damages and attorney fees, even for acts of infringement committed prior to registration.107 If considered unpublished, then the plaintiff would only be entitled to actual damages, of which there were very little.108 Relying on case law holding that a defendant’s unauthorized transmission of copyrighted works over the Internet violates the copyright owner’s exclusive right to distribute copies, the district court determined that the Internet posting did indeed constitute a publication.109 The court equated the Internet posting in Getaped to the publication of music files or copyrighted images to the Internet with the knowledge that the files would be downloaded.

To support its holding, the Getaped court tried to identify the essence of publication. According to the premiere copyright treatise “a sine qua non of publication [is] the acquisition by members of the public of a possessory interest in tangible copies of the work in question.”111 Since a person cannot take any sort of possession or control of a painting or a play merely by viewing it, the public display of a work of art or the public performance of a play does not constitute publication.112 However, the Getaped court reasoned, webpages are materially different from artwork or plays; by accessing a webpage, the user not only views the page but can also copy the code used to create the page or copy the image on the screen.113 Even if the images on the screen are encrypted so that they cannot be directly copied or saved to the user’s computer, “screenshot” software can be used to take a digital picture of whatever is on the screen.114 For this reason, the Getaped court and several others have held that posting music files, software or photographs to a webpage constitutes publication for purposes of the Copyright Act.115 Other courts in addressing this question have simply equated Internet posting with publication without analysis.116

Equating Distribution with Publication

Several courts (including the Supreme Court) that have wrestled with the Copyright Act’s definition of publication have found “distribution” and “publication” to be synonymous.117 To arrive at this conclusion, these courts relied on the legislative history of the Copyright Act;118 the House and Senate Judiciary Committees of the Ninety-Fourth Congress consistently described Section 106(3)119 of the Copyright Act as protecting the “first public distribution of an authorized copy” of a work, conflating the concepts of distribution and publication.120 Under this interpretation, an Internet posting that qualifies as “distributed” would then qualify as “published.”

End Excerpt.

I think this proves my point that posting on the Internet is publication under the Copyright Act.
--
Richard Weisgrau
http://www.weisgrau.com
Author of
The Real Business of Photography
The Photographer's Guide to Negotiating
Selling Your Photography
Licensing Photography

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