New Copyright Rules For Published Photos

Simplified Registration- No More Excuses!

Joshua Kaufman ©2001

As I tell everyone of my clients and have written in Outdoors Unlimited many times, registering your copyright is critical if you intend to protect your rights against infringers. In 25 years of representing creative individuals who own copyrights such as photographers, artist, sculptors, computer programmers, etc. I can't begin to tell you how many times individuals have come to me with a perfectly good claims where someone has infringed on their copyright in their photograph but it was not economically viable for them to pursue the matter because they had not registered their copyright.

Copyright registration provides several important benefits. One, it is a prerequisite for filing a law suit. In other words you can not go into court and seek any relief until you file a copyright registration. While you can register at any time if you need to expedite the process in order to file your law suit there is a $500 charge for the expedited processing. The most important benefits from registration are available if and only if at the time of the infringement your work had already been registered. Then you are entitled to (in the court's discretion) statutory damages which can range up to $150,000 per infringement and to have your attorney's paid by the infringer. Even if you never litigate the case having the fear of the attorney's fees and statutory damages on your side makes negotiations a great deal simpler. Without them you are required to prove your losses and the other party's actual profits. Your losses would probably be what you would have charged and their profits are whatever their net profits are. Unfortunately, those numbers often are less than your attorney's fees.

The copyright office has just released a new rule making it much easier and cost effective to register your published photographs. In the past (and currently) for works that are unpublished, meaning works which have not been published in anyway (e.g. a book, as posters, greeting cards, magazine, calendars, on products, etc.) you can take as many of your images and register them as an, "Unpublished Collection" on one application for one $30 fee. However, once a work was published, in the past they had to be individually registered. This requirement of individual registration for published works effectively stopped most photographers in their tracks and as a result most published photographs were not registered ( or not until after an infringement took place).

The Copyright Office's new regulations allow you to register an unlimited number of published works on one application with one $30 fee –here is how: requirements:

The published works must be by the same photographer and are limited to the works published in a calendar year. You must identify the specific date of publication for each work (if you can not identify a specific date there is a fall back procedure). The Copyright Office will accept photographs submitted on CD-ROMs, DVDs, unmounted prints (at least 3" X 3"), contact sheets, slides (with up to 36 images on the slide), clippings, photocopying, or videotape (with a videotape you pan slowly across as many images as you wish to capture on the tape). If you are going digital the formats accepted, are JPEG, GIF, TIFF and PCP (the Copyright Office has stated that as other file formats come into common use, they will add them to the acceptable lists. If you don’t know the exact date of publication of your works you have the option to designate a range of dates of publications for all the photographs in that group. However, they must have been published within three months of the filing date. For example, with a March 31, 2002 application, you would include photographs first published anytime from January 1, 2002 to March 31, 2002.

Works made for hire, may also benefit by group registrations. The employer, who is deemed the author of the work, is limited to registering a single photographer’s work in any group’s registration. Therefore, if a studio has a number of photographers as employees, they must file separate group registrations for each of their photographers. Also, with work-for-hires, even through the employer is deemed the owner, they must identify the actual photographer in the application, e.g. "XYZ Corporation, employer for hire of John Doe".

There is now absolutely no excuse for photographers not to be registering both their unpublished works as collections and their published works as group registrations. The form is simple and for $30 the benefits are substantial. You can download the forms for free along with instructions at the Copyright Office’s web site which is www.loc.gov/copyright.

P.S. A recent case was rendered in the U.S. District Court for the Northern District of California where a photographer, Joshua Ets-Hokin sued Sky Spirits, Inc. While the case is interesting as it provides the photographer copyright protection for his photograph of liquor bottles, even though they are useful objects this case is notable for its superb overview of the history of copyright protection for photographs. It is a case that one with an interest in the area should read. To read it click here.

Joshua Kaufman is a partner in the law firm of Venable, Baetjer, Civiletti & Howard, LLP based in Washington D.C., he has a national practice and represents scores of photographers throughout the United States in both contract negotiations, licensing arrangements and copyright infringement cases.