Again, we find answering a question in comments is worthy of a blog post. We get asked the question many time, why register before an infringement, when one can still register after an infringement? If you register upon shooting/creation as unpublished or within the 3 month grace period for published work, and you work is infringed, your potential remedies are:
1. Actual damages; or in the alternative seek…
2. Statutory damages which may run into the hundreds of thousands of dollars regardless of what the infringer would have been charged for the license or use IF it had fairly negotiated the use and the creator approved of the use, fee, etc.
3. If you sue in infringement and prevail you are entitled to be recompensed for your attorneys’ fees in the amount paid or in an amount the court finds appropriate which could be more than you paid or owe your lawyer.
4. A court order (injunction) stopping the infringing use even before the final outcome of your case has been determined.
If you register say 6 months after the infringement your remedies are limited as follows:
1. Actual damages (only) are available. Typically this is the amount of the fee you would have charged or a reasonable fee for the offending use even if you never would have licensed the image in the first place. This is very problematic for say a fine art shooter who never, never licenses his/her work for say product packaging so as to preserve the market prices for the fine art photos which the photographer only shoots and sells in galleries. That photographer has no “going rate” by which an award of actual damages can be accurately measured. If for example, the registrant always charges $5,000 for POP use for any product for one year and the infringer has used the image for a POP use for one year, an award of $5,000 would be “rational”.
2. No right to seek statutory damages.
3. No right as a matter of law to collect attorneys fees even if you are successful on your claim.
4. A possible challenge to the legitimacy of your registration is far more likely than if your registration was timely.
5. Since you need to register to sue you may have to register on an expedited basis, which costs almost $800 as opposed to $35. If you don’t expedite the registration you may need to wait many months before you can sue.
6. If the work was not timely registered sometimes a lawsuit is not economically viable. The infringer knows that and is not incentivized to settle as do many lawyers would decline to take your case in the first place as it might not be profitable for the attorney to get involved.
7. An injunction or court order directing that all infringing uses stop can still be sought and obtained but if the usage has already run its course the power of such an order to force settlement or payment will be greatly diminished.
Hope this all clarifies as to why we say it’s best practices to register all your images as soon as possible, before there is an infringement.