Legalities 22: Does Posting Your Artwork Online Count As “Publication”?

Q. I’m wondering what the situation is for illustrators maintaining their rights when posting images on the web that they’ve created.

For example there are some writer and illustrator forums where you can have worked critiqued or post “work in progress” for feedback. It states on the writer page not to post work you would like to sell because once it’s posted it’s considered “published”. What about a single page illustration that will eventually be part of a 32-page book?

There are a number of artist forums where artists post work they will later be selling. The way I understand it, in that case, they maintain their copyright as soon as the artwork is created. How does this translate to the publishing world?

A. There are two separate issues involved here.

First, there’s the legal definition of “published,” and whether a work being published under that definition affects your legal rights.

Second, there’s what “published” means to publishers, and how a work being published under that definition affects the marketability of your work.

1. Legal World

Under copyright law, “published” means you have made copies of the work available for distribution to the public.

If a work is “published” under this standard, you are supposed to declare the date and country of such publication on your application for copyright registration, and you are supposed to submit the published version of your work as the deposit specimen for the registration.

You are correct that copyright exists, and you own it, as soon as you create your illustration. There is no way to lose your copyright just by publishing your work.

Unfortunately, there is no consensus yet on whether posting a work online qualifies as a legal “publication.” The Copyright Office has refused to offer an opinion. Some people think posting online qualifies as publication because it allows multiple people in multiple locations to view the work at the same time, which is analogous to print publication. Also, in fact your computer technically makes a “copy” of the work when it displays the web page.

Once a work is online, it is very easy for viewers to make printouts of the work, which is also creating a copy. However, the law is clear that unauthorized copying does not count as a legal publication. Therefore, if you post your work with a copyright notice (and, for good measure, a clear statement that it may not be copied without your permission), there’s a good argument that you have not made copies of your work available to the public, and thus your posting is not a legal “publication.”

So in the final analysis, you can decide whether you consider your online posting to be a legal “publication.” The advantage to calling it “published” comes in the registration process.

Normally, if you register your copyright before an infringement happens, that prior registration entitles you to collect statutory damages and your attorneys’ fees. If you wait until after the infringement occurs to register, you don’t qualify for those extra remedies. That makes it harder to go after the infringer (their risk upon being found liable is less, so your bargaining power to stop infringement and get paid for it is less). (See Legalities 1)

However, for published works, there is an exception to this rule. The law provides a 3-month grace period: if you register a published work within 3 months after the date it was published, you would still be entitled to statutory damages and attorneys’ fees even if the infringement happened before you registered.

As we know, works can be copied instantly as soon as they go online. So, it is often more advantageous to register your online works as published works – that way you get the 3-month grace period to register them and still get full protection.

2. Publishing world

In contrast to copyright law, publishers are not worried about technical questions about what constitutes a “copy” made available to the public. They are interested in what effect a prior posting of an illustration would have on the market value of their books, or similar consumer products such as CD-ROM’s, board games, computer games, etc (for the purposes of this discussion, “books” includes electronic books and other such consumer products that are reproduced for sale).

Generally speaking, publishers want the illustrations in their books to be new and unique to their book. The exclusivity of the artwork makes the book more valuable. Thus, they want to know that you have not previously given any rights to publish the illustration to another publisher, and they want to know that while their book is in print, at least, no one else will have the right to publish it.

In that regard, when publishers don’t want to use illustrations that have already been “published,” they are also using “published” in the traditional sense of meaning “reproduced in printed copies distributed to the public.” Its that kind of prior exposure of an artwork that makes an illustration less valuable if it is re-used in a second book.

An illustration that’s been posted online for the purposes of peer review and critique doesn’t affect the marketplace for printed books. You have not given anyone a license to print the illustration in a commercial way, and there will be nothing out there in the marketplace to compete with the publisher’s book. Thus I don’t understand why publishers would consider such online postings to be a problem, especially if it is a relatively private forum, as opposed to on your website where the entire public can view it. In my practice, I have not personally encountered such an objection from a publisher.

That being said, if it is true that certain publishers would have a problem with this, then of course you should know about it. I would encourage you to poll your peers to find out more specifically if any of them have encountered such an objection, and if so, which publisher(s) objected.

It also occurs to me that the problem might arise around standard warranty language in publishing contracts, where the publisher wants you to state that the illustrations are new and original and have not been published previously. You may have already registered the illustration as a “published work” based on the online posting.

If that’s the issue, a simple explanation about the limited online posting for critique purposes should be sufficient to quell your publisher’s concerns. If you are assigning your copyright to the publisher, it is a simple matter to assign the prior copyright registration as well. Also, its fine to submit another copyright application for the book, which will cover the new published version of the illustration as it appears in the book along with the rest of your illustrations and the text.