Upload & Sell: On
| p.2 #11 · Finally AFP goes down. Photographer wins one. |
If the work has been published you have a 3 months grace period. I'm not sure how many times I can say it.
+1 @ Short, sweet and safe. Can't go wrong here. ^ ^
Everything after this becomes a convoluted / debatable position re: what constitutes published vs. not published. The moment you put it out there for others to see ... someone, somewhere (i.e. your adversary) is going to claim that to constitute "published" whether or not you have it password protected. As it turns out in the previous story of a "password protected" scenario, an argument could be made that it was published to an intended audience of one. The fact remains that even if it was only intended for an audience of one ... you had still voluntarily (you could have required them to come to your office/studio for viewing and it was a voluntary contract that you had entered into with a client) subjected it to being out of your control (the person you granted the password to now has the ability to copy) ... which is really the essence (my perspective, i.e. not necessarily legal definition) of something being published ... i.e. you voluntarily relinquished control.
Once you have voluntarily removed it from the security of your care and "unlocked" the door to it (even to an audience of one, who could then share it with two, four, infinity) ... you have subjected yourself to it being available to be infringed, i.e you voluntarily gave the keys to other(s) or tossed away your security. IF we consider (again, opinion/perspective not necessarily legal definition) our voluntary utilization in a manner that makes it accessible for infringement as our guideline for what constitutes "published" ... it pretty much takes us back to we've only got three months from the time we "put it out there" for others to see (no matter how few the intent is/was).
The registration is for our protection while sharing it with others. It should be protected BEFORE we share if possible. While this is not always pragmatic on an individualized image basis, that is why the three month grace period is afforded. The moment you share it with others (even just one), you have voluntarily reduced your level of protection by extending the ability for it to be copied by others (not the same as granting permission) and you have three months to instill the additional protection of registration. Your call at whether or not you choose to do so in the timely manner indicated.
The point that TT1000 made regarding giving the "other side" a basis for arguing against you is really only mitigated it you stay within the three months of first published. Imo, better to consider first published as the first time you put it out there for anyone else to see (no matter how few), than to risk an argument that you could lose from a debatable position (i.e. what constitutes published), rather than an absolute position. You just never know who is going to be judging and/or presenting the arguments. Better safe than sorry. Debating a given point here in cyber world might be fun to think we've won, but better to follow TT1000's point at the top and truly secure your position, i.e. really protect yourself rather than risk ineffective protection ... that IS what it is really about isn't it.
The diff between actual damages vs. punitive damages & attorney's fee's hinges on the timeliness of the registration. Why play with fire and relinquish the strength of your position by convoluting it with arguable merits for others to use against you. Keep it simple @ three months ... period. If you ever need it, you'll be glad you did. The one time you don't, it's very easy to be sorry you didn't ... i.e. just try to get a lawyer to take your case without a timely registration. Since good attorneys already know that attorney's fees and punitive awards are not going to be awarded without a clear-cut, absolute timely, registration, good luck with that. And as to the convoluted scenario arguing when first published starts the clock ... they know that it is a risky proposition there too. Again, good luck with them wanting to take that case too.
Establish your position such that your attorney will want to take the case ... punitive damages & attorneys fees awardable, with as little argument as possible, based on an irrefutable timely registration (hence a 4/year strategy). Otherwise, you better have a really strong case for your actual damages and be ready to pay your attorney up front. But even there, good luck finding a (good) attorney to go down that road with you. If your case isn't strong enough to convince a good attorney to take it ... what makes you think it'll be strong enough to convince a judge to rule in your favor over your adversary's arguments otherwise. First things first ... you gotta convince your attorney and that is STRONGLY rooted in having an irrefutable timely registration. Thinking anything other than that is folly, imo.
TT1000 is much more versed in the proper legal aspect than I am ... heed his simple words. My perspective has come from being on the losing side (i.e. no punitive damages, no attorney's fees) despite a clear cut (and even admitted) infringement and an extended effort to study the law and understand the pragmatic rationale of why what happens, happens when you don't register in a timely manner.
GL to all.
BTW ... yeah, kinda silly to suggest that the infringement could actually be the first published if you think it through, even if it was stolen prior to your publication (say a stolen laptop with unpublished images).