Business + Marketing

Copyright’s Distinction Between Published and Unpublished Photos

January 21, 2019

By Aaron M. Arce Stark

Photo © Ethan Yang Photography

There are two big reasons why the law draws a distinction between published and unpublished works; one is broad and the other mundane. The first—the broad reason—is that one of the biggest rights of a copyright owner is the right to control the first publication of a work. In other words, the author of a work has the sole right to decide when, where and how the work is released to the public. This is one of the strongest rights of a copyright owner, and it can deeply affect the outcome of a lawsuit.

A good example is the famous case of Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985). Former U.S. president Gerald Ford had written a tell-all memoir to be published with Harper & Row when tabloid newspaper The Nation obtained and published a juicy excerpt. When Harper & Row sued, The Nation claimed that the publication was fair use because President Ford was a public figure and the excerpt was, therefore, news. The Supreme Court decided against the tabloid, citing as a large part of its reasoning that The Nation had infringed President Ford’s exclusive right to first publication because The Nation had published the excerpt before the full book had been released to the public. If Ford’s book had already been published, The Nation’s publication of the juicy excerpt would probably have been fair game, because Ford was such an important political figure.

Whether a work is published or un-published can affect damages in general. Statutory copyright damages are only available for works that were registered within three months of their publication.

The second reason—the mundane one—is that works that are “published” must have a copy archived by the Library of Congress. A copyright is not some sort of natural property right arising from the application of labor to natural resources (unlike physical property) but a right granted by the government. Thus, the government wants some record of all the rights it has given. The Copyright Office, which routinely publishes “circulars” that refine ambiguous areas of copyright law, has for a long time refused to say clearly whether a work posted on the internet—including anywhere on social media—is published or unpublished, and this author suspects that the mandatory archiving of all published works is a mundane reason why the Copyright Office has shied away from the question. The Library of Congress doesn’t want to become a print archive of the entire internet.

So, what exactly is the distinction between published and unpublished? The Copyright Act states that “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 consti-tutes publication. A public performance or display of a work does not of itself constitute publication” (17 U.S.C. § 101). The Copyright Office adds that “generally, publication occurs on the date on which copies of the work are first made available to the public.” Here, we see the real, hard distinction: “publishing” your work means allowing consumers to legally obtain copies of that work. Merely publishing a photograph to Instagram is not “publishing” that photograph. Consumers can see the photograph, and if they wanted, they could screenshot it or otherwise make a copy but such a screenshot would technically be copyright infringement. Any unauthorized copying is copyright infringement.

To publish the photograph means to, somehow, make commercial use of it.

Now, that can get very, very fuzzy. There are plenty of ways to “make commercial use” of a work without literally offering copies of it for sale. A one-of-a-kind painting hung in a gallery, for example, is published because it has entered into the commercial stream. If you bought ad space on Facebook and used a photograph you took, that photograph would likely be considered published, despite the fact that you are not offering to sell copies of it; you have used the photograph for commercial purposes and are relying on copyright law to protect your exclusive use of it.

The bottom line: Never publish a work unless you have registered it first. If you are a professional content creator and you make your content available to consumers, even if you do not offer copies of that content for sale or lease, there is a chance that your content will be considered published because that work is building your own artistic profile, and you will not be able to lean on your right of first publication in the event of a dispute.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Stark.Law LLC.

This article is for informational purposes only. Contact a lawyer for legal advice.

Related: What Photographers Need to Know About Copyright Law

Why Registering Your Copyright is More Essential Than You Think

Getting Cozy With Copyright Again