July 20, 2014

Daniel Foster

10 Things You Didn't Know About Copyright Registration

Facts you didn't know about copyright registration

Do you register your work with the US Copyright Office? Though the idea of copyright registration sounds quite antiquated in the Internet age, there are some very good reasons why you should register. There's also a lot of misinformation about how registration works, who can register, and if you need to even register at all. Here's why every artist-- including non-US photographers-- absolutely, positively should register their work.

1. Copyright registration provides prima facie evidence of your copyright

Prima facie is a Latin term that literally means "at first sight" or "on its face." Copyright registration has a presumed validity in a copyright infringement claim unless challenged by the defendant. This shifts the burden of proof substantially in your favor. Instead of having to prove you shot a photo and own the rights, the defendant has to provide evidence to the contrary if she disputes these facts.

The Ninth Circuit Court of Appeals reaffirmed this presumed validity in United Fabrics Int'l, Inc. v. C&J Wear, Inc:

As the copyright claimant, United is presumed to own a valid copyright, . . . and the facts stated therein, including the chain of title in the source artwork, are entitled to the presumption of truth. . . . By failing to point to any evidence indicating that the copyright was invalid, . . . Macy's has failed to rebut the presumption.

Let's save he-said-she-said arguments for the schoolyard. Register early and register often (more on this later) to easily validate your rights.

2. There is no such thing as a "poor man's copyright"

Photo: dcjohn

We've heard the suggestion many times that instead of copyright registration, you can use a "poor man's copyright" or "mailbox copyright." This involves sealing the work in an envelope (it could be a blog post, poetry, or photos on a CD) and mailing it to yourself. The theory is that once the sealed envelope is stamped with a postmark and mailed back, you'll have indisputable third-party evidence that you're the creator of a work. Who could argue with the U.S. Postal Service?There are a number of reasons why a poor man's copyright won't help a starving artist:

  1. It's not difficult to tamper with an envelope and reseal it.
  2. You still won't be eligible for statutory damages (see below)
  3. A poor man's copyright isn't a public record

Very often artists assume that copyright disputes revolve around who actually created a work. Copyright infringement isn't the same thing as plagiarism. Ownership of a work generally isn't a major issue of contention in copyright disputes. The amount owed, however, often is and a poor man's copyright won't help you with this. Registration with the U.S. Copyright Office will.

3. Copyright registration = $750- $30,000 in statutory damages

Under 17 U.S. Code § 504, owners of a timely copyright registration may elect to receive $750 - $30,000 in statutory damages. There is also the possibility of receiving attorneys' fees. Without registration, you bear the burden of proving actual damages or lost profits and generally don't have the chance of recovering legal fees. Statutory damages are intended to serve as an incentive for registration and to relieve copyright holders from the burden of calculating damages, especially in situations where determining the precise harm done is difficult. In cases of willful infringement, the court may award up to $150,000 at its discretion (this is very rare).

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4. You can register up to 750 photos at once and save money

The $55 copyright registration fee ain't cheap, but you can spread it out among multiple photos. The Copyright Office lets you submit up to 750 photos in one registration. From their website:

A group of published photographs can be registered on a single form with a single fee if (a) all the photographs are by the same photographer (if an employer for hire is named as author, only one photographer’s work can be included); (b) all the photographs are published in the same calendar year; and (c) all the photographs have the same copyright claimant.

Note again that all photographs should be from the same year. The rules and consequences surrounding group registration are different for non-photographic works.

5. Statutory damages are only available per registered work, not per photo

New York State Supreme Court
Photo: Jeffrey Zeldman

Photographers are big fans of 17 U.S. Code § 504 because it provides statutory damages for registered works, but only per registered work. In this case, 750 photos in one registration count as the one registered work. So if a particular zealous infringer were to publish all 750 of your photos from one registration without permission, you'd still be looking at the same statutory damages as one photo use.

This is particularly relevant to projects involving the same subject matter. Brandon Stanton's famous Humans of New York project is a great example. Last year, Stanton accused DKNY of publishing up to 300 of his photos without permission after he refused to license them for use in its stores. Had Mr. Stanton possessed a timely copyright registration (he didn't) and decided to go to court, damages would have been limited to a single work. In the end, DKNY opted to donate $25,000 to a local YMCA on Stanton's behalf, a great outcome for everyone.

If you are especially concerned about infringement and want to be proactive about your rights, it might make sense to split up important projects into multiple registrations. Mr. Stanton could have registered his individual photographs in three sets of 100, for instance. While more expensive up-front, it gives you a much better seat at the negotiating table if a company decides to help themselves to the cupboard and the pantry.

6. You can register your copyright online

Copyright registration is a lot easier than a trip to the DMV. Even though it looks like something out of the late 1990s, the eCO system is much preferable to mail your registration and deposit. It's cheaper and faster, too. The eCO system lets you register, submit a deposit and pay online.

7. Foreign photographers can register, too

Eiffel Tower
Photo: Joe deSousa

It's a common misconception that only Americans are eligible to register with the US Copyright Office. Any citizen who lives in a country that has signed an international copyright treaty with the US may register. This even includes China and Cuba. Only citizens of a select few nations, including Iran and North Korea, are ineligible and even there are exceptions (see Circular 38a for a list of status by country).  The Copyright Office will gladly mail your certificate of registration anywhere in the world at no additional fee.

Registration is particularly important for foreign photographers, who may be perceived as less able to protect their rights.

8. You should always register within 3 months of publication

You must register your works within three months of publication or within one month of learning of an infringement (source) to be eligible for the statutory damages outlined above. If your registration is late, the judge is very likely to say, "Nice try but no cigar." However, you may register at any time and receive statutory damages for infringements that started after the effective date of registration.

NB: In the case of ongoing publication, the registration must be made before the very first use. Suppose that from 2008- 2012 a Fortune 500 company uses your photo in a PowerPoint template. You learn of the infringement in 2011 and register the work. The usage in 2012 would likely not be eligible for statutory damages. Questions on the timeliness of registration are very complicated-- talk to an attorney before making a conclusion if the situation is unclear.The three-month window lets you very easily make registration part of your everyday workflow. Make four registrations a year-- each at the end of March, June, September, and December-- and you'll be good to go.

9. You can't go to court without a copyright registration

Lawsuits are never fun and certainly should be avoided. A court isn't nearly as exciting as on TV. Should a lawsuit be necessary, however, you must have a copyright registration before filing your claim. This is the case even if the infringement occurred well after your registration and you aren't eligible for statutory damages. This makes sense considering that registrations are prima facie evidence. Courts want to spend their time resolving disputes about damages, not ownership.

10. You don't need to display a copyright notice

There is no requirement to display a copyright notice, watermark or other text to indicate your works' copyright status. Many photographers find that such notices distract from the aesthetics and artistic impact of a photo, and there's no guarantee that they won't be removed later (this has its own legal implications). It's up to you to decide when, where, and how you wish to display a copyright notice, if at all.

Note: This article is not intended to serve as legal advice and nothing contained herein should be construed as a substitute for legal advice. Always consult an attorney if you have questions about copyright or the law.

Daniel Foster

As the entrepreneur and professional photographer who founded Pixsy in 2014. Daniel is an expert on topics relating to intellectual property and copyright law. Daniel is proud to have helped so many creatives in the fight against image theft.

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