Disclaimer: I am not a practicing attorney. I advise anyone reading this who needs legal advice to seek out and hire an attorney. In this blog post, I am detailing exactly how I register my Copyrights and summarizing conversations I’ve had with my attorneys, and the advice they’ve given to me. Use this information at your own risk. Your situation may differ from mine. When in doubt, seek legal counsel.
Additionally, this post is written from the point of view of a US citizen applying US law. If you reside outside of the US, there are likely to be different laws governing your ownership of creative works, although many foreign countries are signatories to the US Copyright Act.
In light of the recent Flickr/Myxer mess, I decided it’s time to talk about registering your copyrights. It’s the single most important thing you can do to protect your rights as a photographer.
You’ve heard it a million times. A photo is “copyrighted” when you press the shutter button. According to my attorney and other attorneys I have interviewed, this is absolutely true. Unfortunately, this doesn’t offer you much real world protection.
Title 17 of the United States Code (http://www.copyright.gov/title17/) covers US Copyrights. You should be familiar with this code since it governs your rights and responsibilities as a Copyright holder.
According to several attorneys that I interviewed for this piece;
When you own a copyright, you get:
To reproduce the copyrighted work;
To display the copyrighted work publicly;
To prepare derivative works based on the copyrighted work; and
To distribute copies of the copyrighted work to the public by sale, rental or lending, and/or to display the image.
When someone uses one of your photographs without your written permission, they may be found liable for Copyright infringement. This means you may be able to collect money from them to compensate for the improper use.
There are limitations to Copyright and the one you will hear most often is “fair use.” If someone uses your images without your permission and claims fair use, be sure to consult an attorney. That defense may or may not hold up in court, and only an attorney can tell you how likely you are to succeed at trumping such a defense. I can tell you it’s overused and in my case, it’s never stood up as a defense.
In order to convince an attorney to help you sue to protect your rights, you will either need to pay them traditionally high fees, or provide them with evidence of a Copyright Registration. It is this all-important registration that gives Title 17 its teeth, and allows lawyers to go get money damages for you. Once an attorney knows you have registered your images, they will consider taking your case on a contingency basis, meaning they get paid a percentage of your damage award.
That’s why I strongly urge photographers to register their Copyrights.
My attorneys says that registration offers several benefits:
It establishes a public record of the copyright;
It provides evidence of copyright ownership if registered within five years of publication;
It provides for statutory damages and attorney’s fees if registered before infringement or within 3 months of publication; and
It helps prevents the importation of infringing copies.
While it may be intimidating to some photographers, the registration process is actually quite easy. Do note that everything you put on the registration form is public record.
The US Copyright Office is now urging photographers (and other visual artists) to use an online form called Form CO. It’s part of the eCO Online System that’s designed to speed up the registration process. http://www.copyright.gov/eco/. You can download a eCO tutorial in the form of a PDF here – http://www.copyright.gov/eco/eco-tutorial.pdf.
The main reason I use Form CO online is that it is less expensive. It costs $50 to register your works with form CO (the paper form) while it’s only $35 for the online registration. There are other reasons to use form eCO. It offers online status tracking, the fastest processing time and the ability to upload certain categories of deposits (pictures) into eCO as electronic files. No more sending in CDs full of pictures!
You can upload just about any photographic format including JPG, GIF, TIFF, PNG and more.
Eventually, all submissions will be online. Going 100% online is easier and cheaper.
When you register your Copyright, you must do so in one of two categories. Published or Unpublished.
If you’ve sold your images, or if they have appeared in a publication or if you distribute copies of your work to the public by sale, lending, or leasing, your work may be considered published. Publication also includes the offering to distribute copies of your work to others for the purpose of further distribution. Some attorneys say that putting your images up on a web site for sale constitutes “publishing” your images. Since you might not get all the protection you need if you register published images as non-published, it may be prudent to register any image(s) you’re not sure about as published.
To make the registration process easier, your images may be registered as a collection or group with one application form and one fee. The images must be combined in an orderly format; the collection must have a single title; and the items in the collection must have the same copyright ownership. The fee to register one image or 750 mages is the same, so there’s no reason not to save money.
To register a published collection, you must meet additional requirements. These are:
The photographs were made by the same photographer (or employer in a work-for-hire situation);
The photographs were published in the same calendar year; and
The photographs have the same copyright claimant.
You can do group registrations of up to 750 images using form GR/PPh/CON – available from the U.S. Copyright Office.
There’s no excuse not to register your Copyright, especially if you hope to make money from your photographic endeavors. Without registration, you won’t have near the protection you would have with it.
I do want to mention Creative Commons. Many photographers have considered using CC to protect their work. I do want to caution you that Creative Commons is little more than a theory or a movement at this point. It’s a license – nothing more. If violated, you still need to rely on Copyright registration to collect damages. I am unaware of any jurisdiction in the USA that has codified it. And despite challenges to my attorney friends who want to pursue CC, they can’t cite any US cases where CC has been used to win money damages for a photographer who has been infringed. If you can cite cases or statutes that contradict this, please email them to me and if persuasive, I’ll adjust my article accordingly.
Please remember this information isn’t intended to spark a debate over whether US Copyright law is a good or bad thing. Or whether Copyright law needs to be changed. This information is designed to make people aware of the statutory protections of US Copyright law and to motivate them to pursue protection under those statutes.