An interesting graffiti case, filed under “We told you this can happen”, but not in the way expected. A lawyer representing graffiti artists contacted the Mercedes Benz company (also known as “Holy crap, how is Fred able to buy that Mercedes Benz on his crappy salary?!) about Mercedes Benz infringing on his client’s graffiti artwork. Mercedes Benz’s response? They preemptively sued the graffiti artists to seek a court’s ruling that their use is a fair use and not an infringement.
Our opinion on this case? We don’t have one yet. We’ve learned long ago you can’t depend on articles (especially on the Interweb) and listing to lawyers talking to the press. What really counts is reading the court papers to find out the real facts and the real decision.
Until we have something like that to report back on, here’s a link to one of the many stories about this case.
Mercedes-Benz Is Suing Artists Who Accused the Car Company of Copyright Infringement
#1 by Derek on April 29, 2019 - 7:01 pm
Hi Ed and Jack,
As long as you’ve registered your copyright of a photo before it’s infringement is there any disadvantage to having done so as “published” vs “unpublished” (given that the photo fit the definition given by the copyright office as previously published)?
In other words, does a photo copyrighted as published have all the infringement protection and damage recovery potential as a photo copyrighted as unpublished (assuming copyright in both cases precedes infringement)?
Reading your book, I would say yes. But wanted to confirm my understanding.
Thanks derek
PS love your book
#2 by Jack and Ed on April 29, 2019 - 9:28 pm
Hi Derek,
As long as you register correctly, meaning a published image registered as published and an unpublished image registered as unpublished, it’s the same protection. Both are equal.
You just don’t want to mix up the classification.
The only thing to add is an image registered as unpublished and then published later, you are still protected and you do not have to register again as published.
Glad you looked the book. Appreciate the comment.
Jack
PS, I removed the same question in another area.)
#3 by Derek on April 30, 2019 - 7:23 pm
Thanks, Jack. Much appreciated!
#4 by Cindy on June 1, 2019 - 10:42 am
Great article and blog! Question on what constitutes “published”. Written/hard copy? Instagram post? Private online gallery (client access only)?
Many many thanks!
#5 by Jack and Ed on June 1, 2019 - 4:10 pm
Oh dear (or as we say in NY, Oy Vey). The reason for the exclamation is that publication can be a grey area. The official rule is anything “presented to the public”, where anyone can run across it and see it, is considered published. Also, anything presented to a group for further distribution is considered published. So a portfolio But if you have a password protected gallery for only a limited group to view, that I’d considered not published.
Now posting on social media, well you’ll get different answers from different people and a none answer from the Copyright Office itself.
In Ed’s opinion anything you put in social media should be considered published.
A lot of this confusion stems from the Copyright Compendium, which is the official paper (over 1100 pages long) of the do’s, don’ts, and what for of copyright. All the official rules. It states about presenting to the public, presenting for further distribution, etc. But in that same paragraph on what is publication, it also states that mere display does not constitute publication. Which is either contradictory or vague considering what it says previously. And the Copyright Office will acknowledge that it’s vague and confusing. They say it’s up to the individual copyright holder to decide if the work is published. But the problem with that is if a judge, the final decider, decides it’s published in court, you’re out of luck, or as lawyers say, SOL.
So it might be best to follow Ed’s view that if it goes online, it’s published. That way you’re safe.
I rarely put anything online that I haven’t already registered as unpublished. Once your work is registered correctly as unpublished and you publish it later, you’re covered.
Hope that helps to clarify at least a little your question.
Jack
(Who is not a lawyer and is not giving legal advise. I have to put that in on advise of my lawyer
.)