Jeff Donald wrote:
So here is an example. You (the photographer and copyright holder) shoot a wedding and upload files to a SmugMug gallery/album that requires a password to view the images. Your client uses the password you provided to view the images and download the files. You discover two months after uploading to SmugMug, that your client has downloaded the images and printed them, making several albums and enlargements for family and friends. Can you now register your images with the US Copyright Office and then sue for compensatory damages and attorney fees?
I say you can. The use of a private album/gallery on SmugMug meets the US Copyright Office\'s position that a private area with password restriction is not publication. You then can register you images within three months of discovery of the violation and then sue the client for damages and attorney fees.
If you have not published the work which you are asserting you have not then sorry but you are outta luck as far as statutory damages and attorney fees are concerned relating to any infringement occurring prior to registration, so please don\'t make the argument that your password protected site constituted unpublished work -- you\'ll hurt yourself. It\'s generally not advised to take positions against yourself in a litigation. If the work has been published you have a 3 months grace period. I\'m not sure how many times I can say it.
As far the the CO, last time I read their pronouncements they recognize that \"publication\" was not drafted with the internet in mind and second they defer to Copyright Owners insofar as the registration application is concerned to determine whether online transmissions are published or not. In any case, it doesn\'t change the way 412 works.
