The Value of Timely Registration
I would like to introduce to our members a new column that will be updated by attorney David Deal.
Copyright is vested in an author the moment a scene is recorded on film or in pixels. With an exception or two, each and every time a photographer clicks the shutter, she is creating a new, distinct, copyrighted work with all the protections of U.S. copyright law. I am old enough to remember when film was the only option and there were very real practical concerns about how many rolls to shoot, namely who would pay for the processing, storage, and printing. Digital photography has all but eliminated those concerns. Unless a photographer makes a choice to permanently delete images stored on her camera or computer, she can end up with thousands, if not tens of thousands of copyrighted images in a very short period of time.
Photographers have quite an advantage over other visual artists like sculptors, painters, or writers, who produce less copyrightable material and must sometimes wait for long periods of time for their work to be completed, and therefore eligible for copyright. However, photographers often squander this advantage when they fail to register their photographs. Registration, and more importantly “timely registration,” is the key to maximizing the legal remedies provided by U.S. copyright law.
Registration is the process of officially depositing copies of photographs with the United States Copyright Office. The benefit of registration is it establishes a searchable record of the images, along with corresponding dates of capture, and authorship. It also has the legal effect of putting the world on notice that the photographs are the intellectual property of the photographer and may not be used without license or permission. While registration is not a requirement for copyright in an original work, it is for an author to file suit in U.S. District Court. Timely registration dramatically improves a photographer’s legal position when litigation is necessary.
If a photographer works with any regularity and displays the images either in print or online, it is a near certainty she will discover instances where the work has been copied and used without her permission. When a photographer finds herself in such a position, the difference in available legal remedies is profound. Timely registration permits the photographer to elect statutory damages and attorney’s fees. Statutory damages (determined based on the statute rather than provable damages) are not required to be based on actual damages, but on punishment and deterrence aimed at the infringer. Maximum statutory damages for willful infringement: $150,000.00.
On the other hand, without timely registration, a photographer is limited to actual damages, which are typically the value of the lost license commensurate with the scale of misuse, or attributable profits by the infringer. If the infringement involves typical online use by a company or individual (blogs, articles, advertisements), attributable profits are nearly impossible to demonstrate. The photographer bears the burden of proving actual damages.
Timely registration is defined by the U.S. Code in three ways. The first is when the effective date of registration precedes the infringement. Easy enough. If a photographer registers a work before the infringement takes place, the presumption is the infringer had the ability to search the U.S. Copyright Office database to determine whether the image was copyrighted. In these cases, the defendant has little to no room for argument.
The second is when the effective date of registration is within three months of original “publication” of the work. Publication is not what most photographers believe. It is not the first time the image appears in a magazine or newspaper, whether online or print. Although U.S. Circuits are split on the precise definition, the consensus is publication occurs when an image is “made available for copying or sale.” If a photographer posts images to Flickr or another image sharing website, it very likely qualifies as publication. If a photographer makes a few prints to share with friends, probably not. If a photographer is hired for a shoot, and the resulting images are displayed or otherwise utilized by the client, the images have certainly been published in the legal sense.
The third is when the effective date of registration is within one month after infringement. For example (based on an actual client’s experience), if a photographer captures an image of a celebrity walking down the street, posts the image online, then discovers (the next day) the celebrity has copied and posted the image to social media, the photographer has one month to register the image and the image is considered timely registered. This is a remarkable opportunity for photographers because it rewards those who invest the time and resources monitoring their work, or happen to be the photographer whose work is disseminated to millions of individuals around the world by a careless celebrity.
A few important things to remember about copyright registration. The “effective date of registration,” as mentioned above, is the date the photographer successfully submits the required application materials to the U.S. Copyright Office. Depending on the application, it usually takes the USCO between one to six months to process an application. As long as the USCO does not reject the application, date of registration is the day the application materials were delivered to the USCO, not the day the photographer receives confirmation of the application in the form of a Certificate of Registration. Applications for copyright may be submitted digitally or paper, and may be batched in groups of up to 750 related images, Digital applications are typically processed faster.