If you don’t properly register your copyright for an image that you publish to Facebook, Instagram or another social media platform, you may be limiting your ability to collect damages from someone who steals your photograph. Why? According to U.S. copyright law, photographers have three months from an image’s first date of publication to register the copyright. If a photographer fails to register an image within three months of its publication and their image is stolen, they cannot sue for statutory damages of up to $150,000 per image plus attorney’s fees unless the infringement takes place after they’ve registered the image. Instead, the photographer and her or his attorney will have to prove actual damages, meaning they will have to come up with evidence that shows how much an infringer earned using an image—a much more arduous and expensive process. (Note: If an image is “unpublished,” photographers have to have registered the copyright before an infringement took place if they want to pursue statutory damages.)
So when is an image “published” in a legal sense? U.S. copyright law defines publication as “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.” In other words, if you post an image to social media with the intent to sell or distribute it, a court will likely define that as publication.
Now, a photographer, her or his attorney, or an infringer may argue during a copyright dispute that publishing an image on social media doesn’t constitute publication in a legal sense. And they may be right. But it’s currently a legal gray area. “There have been some courts that say posting a photograph on the internet constitutes publication,” notes attorney Carolyn E. Wright, who represents photographers and writes about copyright law at photoattorney.com. “We have different case law and we don’t have [a definitive upper court decision] yet to resolve this issue.”
There is a Texas district court opinion, Wright says, that she likes that backs the view that publication depends on a photographer’s intent to sell or distribute an image. In Rogers v. Better Business Bureau of Metropolitan Houston, the judge found that simply publishing something on the internet did not constitute “publication” as defined by U.S. copyright law. “The Rogers court said that if you are just publishing it to share the photograph, if it’s just for display only—‘Here’s a photograph I took today or whatever’—then it’s not considered to be published. But if you post a photograph on a website with the intent for it to be distributed, copied, or if you’re trying to sell it, then definitely it would be considered published.”
This unresolved issue of publication gets even more tricky with social media. Facebook, for instance, has a share button built into the platform. “If you post [a photograph] on Facebook, you’re aware that people will share it on Facebook, then it’s for further distribution. And that’s one of the definitions of a photograph being published,” Wright points out. One could argue that Instagram doesn’t have distribution built into the platform because there is no share button allowing people to further distribute an image. But if you’ve ever posted an image on Instagram offering to sell prints of the image, that would likely constitute publication and start the clock ticking on your three-month window to register the copyright. Twitter’s retweet function, on the other hand, makes it a platform that encourages distribution.
And what if your feed is private not public? Would a court consider posting to a feed visible only to a photographer’s friends and followers publication? “My Facebook is closed [to public viewing],” says Wright, who is a photographer herself. “I would deem [the] photographs [on my Facebook] as being unpublished.” (Wright says she registers her images as unpublished before posting them on her site or on her Facebook page.)
Wright has advice to resolve the dilemma. If you’re unsure whether or not posting your photograph on social media constitutes publication, you should register the image as published. The reason, she explains, is that “we have seen courts change the designation of an image” from published to unpublished and vice versa.
To register an image as published, you have to provide a date of first publication and a nation of first publication, and the Copyright Office has stricter limits on how many published images you can register at once. If, in a copyright case, a court decides that you were wrong and your image hasn’t been published, “As long as the photographer was making best efforts to register the image correctly,” they will change the registration, Wright says. If you register an image as unpublished, though, it won’t meet the requirements for registering a published image if the court decides it was improperly registered. “The court will say you’re wrong: We don’t think that you meant to be wrong but you’re wrong, the image really was published but you didn’t provide that information necessary to say that it’s published, therefore invalid registration you’re out of luck,” Wright says.
CORRECTION: A previous version of this story stated incorrectly that photographers can pursue statutory damages for infringement of an unpublished image if they register the image within one month of discovering the infringement. This is incorrect. Photographers can register copyright for unpublished images at any time, but can only pursue statutory damages if the copyright for an unpublished image was registered prior to an infringement.
New York Federal Judge Says Embedded News Image Violated Copyright Law