Bo's bLAWg - Copyright Registration of Published and Unpublished Works

 MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I just sold a new original painting (I also license my art on products). Is selling the original painting considered “publishing” it? I haven’t had a chance to copyright the image yet. I am hoping I can include it in a group copyright with several unpublished, un-sold images. If I add the new painting/image to a site like Pixels.com for print sales, is that considered “published”.  Thanks in advance, Bo! Terri

Good questions, Terri.  “Publication” is an important term in the Copyright Act.  You appear to be aware of the fact that as an Artist you can save a good deal on Copyright Registration fees if you can register multiple images together as a group, and that it is easier to group unpublished imagery than published imagery for registration purposes.

Before I answer your question about whether your sale of the original painting constitutes Publication under the Act, I want to address one particular in your email: “I haven’t had a chance to copyright the image yet.”  You most likely mean that you have not had a chance to register your copyright in the image yet.  However, not everyone knows that they ‘have’ a copyright in their image as soon as they have created it.  As long as the image has sufficient creative original material in it, it is immediately subject to a claim of copyright by its Author/Artist.  So, to be sure, you have a copyright already.  Registration adds specific important statutory protections for the benefit of the Copyright registrant.  (See http://annietroe.blogspot.com/2015/01/bos-blawg.html )

“Publication” is defined in the Act as “the distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.”  (See the alphabetical definitions section of the Copyright Act: https://www.copyright.gov/title17/92chap1.html#106a )

So, there is a quick answer to your first question.  Yes, sale of the painting is deemed a “publication” under the Act even though you have not “published” it in a conventional sense by making copies and distributing them.

The more intriguing question these days is whether artworks posted online are deemed to have been “published” under the Act.  Interestingly, when you post online yourself, even though theoretically you are displaying your imagery to the whole world, the mere “display” of a work does not of itself constitute publication!  “Mere display” has been deemed to include showing your artwork in a gallery or museum as well.  It is only when the gallery sells the artwork, or the museum purchases it for its collection, is that artwork will be deemed to have been “published.”

When it comes to registration, one of the Application questions is when the artwork was first published.  If you are selling your works individually, and not registering them prior to sale, then they likely will all have different publication dates.  That means separate registrations at $55 a pop.

However, it is possible to include multiple published works in a registration application if they were all originally published at the same time.  Circular 1 from the Copyright office says multiple published works can be registered as a group “if they are all first published together in the same publication on the same date and owned by the same claimant.” 
(See https://www.copyright.gov/circs/circ01.pdf page 8.)

Your recently sold artwork would not need to be registered individually if you actually published it prior to its sale as part of a group.  How might that have happened?  I’ll tell you.

You indicate that you list your artworks on pixels.com.  By posting the imagery at that website, if I am not mistaken, you are offering it with the purpose to distribute copies to people who will license it for merchandise and further distribution, right?  Well, that is specifically a kind of “display” that fits within the Copyright Act definition of “publication” (above).  So, if you were to post a bunch of previously unpublished images together on pixels.com for such purposes, then I think you would qualify for registering them all together since they share the same publication date.
 
Alternatively, you can register a group of unpublished artworks together for one fee as well.  These can be registered together as a “collection” if they satisfy all the following criteria:
1) The elements of the collection are assembled in an orderly form; 2) The combined elements bear a single title identifying the collection as a whole; 3) The copyright claimant or claimants for each element in the collection are the same, and 4) All the elements are by the same author or, if they are by different authors, at least one author has contributed copyrightable authorship to each element.  (Note: Works registered as an unpublished collection will be listed in the records of the Copyright Office only under the collection title.)

Hope this is helpful, Terri and that these tips save you a lot of registration application fees.  We give the Feds enough in taxes as it is! 

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com
© 2017 mjbogatin

Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

 

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