Give up photographer's rights or risk being sued?

Started Feb 25, 2012 | Discussions thread
Lyle Aldridge Contributing Member • Posts: 892
Re: Publication and Distribution - more thoughts

Richard Weisgrau wrote:

I want to set this straight. I still hold to my opinion as originally stated, but I should not have thought that others would see publication and distribution as the same in the context in which I wrote. Of course the unauthorized distribution of a copyright protected work is an infringement, which was the point I wanted to make.

The real problem is that the issue of "publication" or "distribution" is mostly a red herring in the context of the OP. As the term "publication" is used in the case law you cited, and in sec. 412 of the Copyright Act, it's a term of art that determines what relief the copyright owner can get from the court.

[N]o award of statutory damages or of attorney’s fees, ..., shall be made for—

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

This provision is meant to provide incentive for prompt registration of a copyright that will be a subject of litigation. Whether that would have relevance to determining what "public use" means in the agreement at issue is another matter altogether.

This really is an issue of ordinary contract interpretation, not an issue of copyright law. You've offered one good argument based on one set of contrasting meanings for the words "private" and "public." But the same words are often used in other contrasting ways that don't lead to the conclusion that use on a website is "public use," even if it constitutes "publication." If the website is not owned by some governmental entity, for example, usage on the website is a private use. "Private use only" could even be construed to include any use that does not release the images to public domain. Ultimately, I think the case (if there is one) could just come down to construing the term against the interest of the party who proposed it. A party who proposes an ambiguous term in a contract will often have the term construed contrary to his or her wishes, unless there is some evidence that the parties came to a different agreement about its meaning.

The actual copyright issues here are potentially vexing. Circus acts and performances are themselves works that can be subject to copyright. They're repeatable, scripted dramatic activities, usually with choreography thrown in. Arguably, photographers who are allowed to photograph those acts are merely being granted license to create derivative works based on the work of others. Under this theory, a photographer who refused to turn over copies of the images might have cause to be concerned that he or she has violated the license terms, and could liable for infringement if he or she uses those images in a way that infringes. On a forum devoted to photography, it's easy to lose sight of the fact that other people have copyright protections, too.

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