The simplest answer is that you should submit the internet-posted images separately from the definitely unpublished works.
But, surprisingly, your internet postings may not be "publication." The Copyright Act stringently defines publication as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." Copies "are material objects, other than phonorecords[.]" The internet does not distribute material objects such as copies or phonorecords. Thus, internet posting is not a form of publication under the plain language of the statute.
Nonetheless, one Florida District Court held in dicta (which means tangential to the overall ruling in the case) that postings to a BBS could be publications. That [mistaken] understanding was afterward picked up first by the Ninth Circuit Court of Appeals, then by the Supreme Court, without apparent reference to the language of the statute.
So the short answer is that there is not good law on your question, but the trend of the mistaken law is that internet posting might be construed as a publication.
A more interesting answer is that an internet post definitely is a public performance of your image. Again referring to the Copyright Act, to perform or display a work publicly means "(2) to transmit or otherwise communicate a performance or display of the work ... to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times."
ATTORNEY ADVERTISING. You are not my client. I am not your attorney. The above comments are not confidential, not "legal advice", and not "legal opinion". I am licensed as a patent attorney and in the State of Connecticut. Retain and consult an appropriately licensed attorney to identify the laws and facts material to your concerns.
Yes, I would consider that a publication and register those works separately as you cannot mix them in your deposit on a collection filing.
If the courts, as my colleague astutely noted, can't get their heads wrapped around what exactly a publication is, you as author should take the cautious road.
The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.
As Mr. Harrison explains and Mr. Natoli agrees, the works should be considered a publication and submitted in the proper category.
A possible solution to your preference of submitting them as one submission is to post the unpublished images to Facebook or your blog, and then the entire compilation can be submitted as one submission, as all published.
My disclaimer is simply that Avvo already has an adequate disclaimer.
As attorney Harrison notes, the concept of "publication" is not always crystal clear, and courts have often used a definition that is not directly tied to the language of the Copyright Act. For what it's worth, the Copyright Office basically punts on the issue of online publication, noting that the Copyright Act does not specify what can constitute publication in the online context, and asking the applicant to determine for himself or herself whether any works were published online. See http://www.copyright.gov/circs/circ66.pdf.
Another consideration is that, depending on how many people can see the photos on your Facebook profile/account, putting them on Facebook might not be considered distribution to "the public," whereas a generally accessible blog would be more likely to meet that hurdle (even though there may not be a physical distribution of a copy or phonorecord).
The good news is that unintentional and immaterial errors are generally not enough to invalidate the legal presumptions and benefits that a copyright registration provides. If for any reason the claim of being published or unpublished were deemed "material" (which I think is unlikely, but I suppose not impossible), it is less clear whether the registration would be held invalid or not.
I am an attorney, but I am not YOUR attorney. By providing free, generalized information, I am not entering into an attorney/client relationship with you, nor am I providing legal advice applicable to your particular needs.
If your Facebook or blog offers the images for sale or offers them for further distribution, it is publication. If the images are merely displayed, probably not. So, just include language offering them for sale or for further distribution together with some link or email where the sale can be arranged and you will have published.
The 1976 Copyright Act defines publication as follows:
“Publication” is the distribution of copies or phonorecords
of a work to the public by sale or other transfer of ownership,
or by rental, lease, or lending. The offering to distribute
copies or phonorecords to a group of persons for purposes
of further distribution, public performance, or public
display constitutes publication. A public performance or
display of a work does not of itself constitute publication.
You are trying to avoid hiring a lawyer. Very foolish!
I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
The plain reading of the statute suggests that the images were published. There are cases that can may contradict this conclusion. This is an ever-evolving area of the law. Seek legal counsel.