This is a story of why we always say you have to verify your copyright registration, if anyone else says verbally or contractually that they are doing it for you. Ed received a request for assistance from another lawyer who (unlike Ed) was “shocked that such a thing could happen”. Seems that the lawyer’s client, a medium sized publisher of books and magazines had failed to register any of their publications that went to market over a “multi-year stretch of time”. These books and publications contained intellectual property in the forms of photos, illustrations, articles, novels and non-fiction works, only a small portion of which was owned by the publisher. The overwhelming majority of the images and verbiage came from independent creators.
In some cases there is “some paperwork” reflecting the publisher’s obligation to obtain registration(s). In some instances the creators had previously or subsequent to publication, filed their own registrations for the works “independent” of their use in one of these publications. In still other instances, a proper contract requiring the publisher to obtain a copyright registration was in place but the publisher had (for whatever reason) simply done nothing. All of the publications say “Copyright XYZ” – or something similar. Bottom line, this attorney walked into a nightmare of a disorganized client.
We bring this to your attention to bang home once again our oft told warning that you must verify that your publisher has in fact filed for and obtained a registration for a work in which your intellectual property appears. If your publishing contract requires such filing be made by the publisher, it should also require that you be furnished with a copy of the registration to prove that such filing has in fact been made.
Publishers, notwithstanding the fact that most have in house lawyers or IP people on payroll, like creatives screw up too. Some more often than others. Don’t assume that your publisher has in fact filed and obtained a registration simply because your contract with the publisher obligates it to do so. These situations are far from unusual. Under these scenarios an expedited (“special handling”) registration filing is necessary to sue an infringer. The Copyright Office charges a fee some 20 times greater for this “rush job” than a standard filing. The failure of the publisher to register may have serious consequences to your ability to bring an action for infringement. If the publisher is out of business, you might have no one to sue for a serious breach of contract resulting in your loss of a claim and/or money. All of this aggravation is easily avoidable.
So if you have any of your photos or artwork registered by a publisher, agent, stock agency, or anyone that you thought was registering your work for you, you might want to double check that those registrations were made, and made in your name.
One more item: consider the plight of the publisher who having failed to register, loses various remedies and rights if, as and when its works are infringed.
Jack and Ed
#1 by Dan Adams on March 6, 2013 - 2:30 pm
I just checked at the United States Copyright Office and found out that my book was not copyrighted by my publisher in my name as stipulated in the contract they signed over two and a half years ago when my book was published. I searched under title, author, etc. It was their responsibilityto do this. I also checked over at the Library of Congress. To say I am upset is putting it mildly. I have no way of knowing if my book, or parts of my book, have been stolen, changed and printed somewhere else unless someone calls it to my attention. This appears to be a breach of contract and I’m wondering if I can get my book back. Do I have a good case to take to a lawyer?
#2 by Jack and Ed on March 6, 2013 - 3:24 pm
Ed has had more than few such instances concerning best selling books published by major publishers which were never registered. One major company in particular entrusted the registrations to a person who, shall we say “failed to perform his/her duties on a remotely regular basis”. Several best sellers were never in fact registered due to the negligence of the publisher. We always advise to either file your own registration or in the alternative your publishing contract should require the publisher to furnish you with a copy of both the application and then actual registration within X months. We discussed this topic at length at our 2/26/13 lecture at B&H. That class should be available for streaming shortly.
You need to consult with a lawyer to determine if your publisher is in breach of your publishing contract, whether you have sustained any money damages as a result and determine the best way to register your work ASAP. You may have additional rights under contract or your state’s law and you need a competent attorney to read your contract and tell you what your remedies are. Do not rely on the advice of anyone other than an attorney who has read your publishing contract.
Just so you know we follow our own advice, when we did our Photographer’s Survival book, we got into a “tussle” with the publisher’s lawyer. We went back and forth on several contract items. Won some, lost some. One they wouldn’t budge on was the publisher filing the copyright registration. OK, we gave in. But after the book was out for about 7 or 8 weeks, we contacted the publisher, bounced from person to person, till we found the person who was responsible for the copyright registrations. Asked for the copy of our registration.It wasn’t done “yet”. Since we had a three month window to register from first publication, we asked if we can do it ourselves. The person at the publisher said, sure, why not. So we registered our own book. Trust but always verify.
Ed and Jack