TWIP

14 July 2008

Registering Your Copyright With the Library of Congress - TWIP

Posted by Scott under: Articles

Photo by Scott Bourne

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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.

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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.

While the traditional registration method would be to use paper forms like Form VA (Visual Arts,) 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/

The main reason I use Form CO is that it is less expensive. It costs $45 to register your works with form VA (the paper form) while it’s only $35 for the online registration. There are other reasons to use form CO. It offers online status tracking 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.

While you can still use Form VA, you can no longer download it. You have to write for a copy. Eventually, all submissions will be online.

Note: In addition to using Form CO online, you can also complete the form, print it out and mail it in, but this costs $45. 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 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 thousands of images is the same, so there’s no reason not to save money. My attorney advises not taking this too far. If you try to register tens of thousands of images, someone at the Copyright Office may determine that your images are not combined in an “orderly” format. There are limits so use common sense and if in doubt, ask an attorney.

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.

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. 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 article 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. We had that debate a few days ago. This article is designed to make people aware of the statutory protections of US Copyright law and to motivate them to pursue protection under those statutes.

As long as this article is, it has only scratched the surface of the subject. For further information contact an attorney.

NOTE: Because I cannot give legal advice, and because our comments section here on the blog is often filled with misinformation or even worse, I am not going to answer questions about this article or allow comments here. My attorney is concerned about liability and I’m going to follow his advice. If I have failed to make myself clear, feel free to ask questions via e-mail related to clarity. Any question that indirectly or directly asks a for legal advice will have to be ignored. Additionally if you are an attorney who specializes in Copyright, please contact me and we’ll add you to our database of lawyers who wish to represent photographers in Copyright cases.

We’ll return to our normal moderated comments policy with the next post.

Thanks.