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This article is by Daniel Foster, founder of Pixsy

from the Pixsy Blog. Pixsy is an Industry Partner


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You can find the Blog and other info related to
copyright at www.pixsy.com

TEN Things You Didnt Know About


Copyright Registration daniel07.2014

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. Theres also a lot of


misinformation running around about how registration
works, who can register, and if you need to even register
at all. Heres why every artist including non-US
photographers absolutely, positively should register
their work.
1. 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 Intl, 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, . . . Macys has
failed to rebut the presumption.
Lets save he-said-she-said arguments for the school
yard. Register early and register often (more on this later)
to easily validate your rights.

2. There is no such thing as a poor mans copyright

Photo: dcjohn (CC BY 2.0)

Weve heard the suggestion many times that instead of


formally registering a work, you can use a poor mans
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, youll have indisputable thirdparty evidence that youre the creator of a work. Who
could argue with the U.S. Postal Service?
There are a number of reasons why a poor mans
copyright wont help a starving artist:
1 Its not difficult to tamper with an envelope and
reseal it.
2 You still wont be eligible for statutory damages (see
below)
3 A poor mans copyright isnt a public record
Very often artists assume that copyright disputes resolve

around who actually created a work. Copyright


infringement isnt the same thing as
plagiarism. Ownership of a work generally isnt a major
issue of contention in copyright disputes. The amount
owed, however, often is and a poor mans copyright wont
help you with this. A registration with the U.S. Copyright
Office will.

3. 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 a registration, you bear
the burden of proving actual damages or lost profits and
generally dont 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 wilful infringement, the court may award up to
$150,000 at its discretion (this is very rare).
4. You can register up to 750 photos at once and save money
The $55 copyright registration fee aint 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 photographers 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, so
any poets and painters reading this should do their own
research.
5. Statutory damages are only available per registered work,
not per photo

Photo: Jeffrey Zeldman (CC BY 2.0)


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 one registered work. So if a
particular zealous infringer were to publish all 750 of your
photos from one registration without permission, youd
still be looking at the same statutory damages as one
photo use.
This is particularly relevant to projects involving the same
subject matter. Brandon Stantons 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 didnt) 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 Stantons 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 mailing
your registration and deposit. Its cheaper and faster, too.
The eCO system lets you register, submit a deposit and
pay online.

7. Foreign photographers can register, too

Photo: Joe deSousa (CC BY 2.0)

Its 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 excpeptions (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 a 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 youll be good to go.

9. You cant go to court without a registration


Lawsuits are never fun and certainly should be avoided.
Court isnt 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 arent 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 dont 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 theres no guarantee that they wont be
removed later (this has its own legal implications). Its 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.

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