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 If you register upon shooting/creation as unpublished or within the 3 month grace period for published work, and you work is infringed, your potential remedies are: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.
#1 by Donny Z on October 31, 2013 - 9:15 pm
So I am taking your advice, and starting to copyright my images have been at it all day and I keep getting the boot and a message that say COPYRIGHT office offline for emergency update. This normal? Will I have to re upload the batches I am doing? I have 4 separate zip files, because i have 4600 pics.
#2 by Jack and Ed on October 31, 2013 - 11:24 pm
Donny, I gotta assume when they say “emergency” that it’s not normal. They do shut down on some Sundays for maintenance, but it’s never called an emergency.
If you didn’t get a confirmation email that the upload was successful, then yes, you need to open the case and re-upload your Zip folders. Just go to your home screen and click on the case number. Pretty easy.
BTW, to keep the terminology correct, you always have the copyright, what you’re doing is registering the copyright.
#3 by Ken on November 5, 2013 - 9:37 pm
I have been working primarily in real estate listing photography lately and my customers demand 24-48 hour turnaround on images so they can complete the MLS listing. Often times, the images might not be posted for up to a week. Does licensing the image count as publishing? Adding a $35 expense to these shoots to register each set of images on the same day I make them would eat into an already tight profit margin. Eventually, I hope to be photographing much more expensive properties and my fees will be substantial enough to cover registration.
In the videos I have seen where you explain copyright, you only demonstrate registering unpublished works, Could you write a short post on the differences with registering published works? I’ve registered my unpublished works going back a couple of years (a few more to go) and I want to be able to do my published work properly for the times when it isn’t economically feasible to do them on a job by job basis.
#4 by Jack and Ed on November 6, 2013 - 2:16 pm
Ken, There is a 3 month window to register published images and be protected. That’s only for published images, not unpublished. So if you took all your published images from January 1 to, say, March 30th and registered them, you would be fully covered. Do that every quarter and you can get all your published images for the year registered for $35 x 4 = $140. That’s not really bad.
You can then register all your unpublished images once or twice a year if money is an issue. Ed would advocate much more ofter for unpublished, but I could live with that ;->
For past published images there is an issue. You need to call the Copyright Office and get on their trial for group registration of published works. Actually, you may still need to do that if you are ganging up published images now, every quarter. There is a limit when you start of 250 images per application, but that can increase after they see you are properly labeling and submitting images. There will be an examiner attached to you in the trail. The big issue is properly labeling the files and labeling the group.
Ed and I are in the middle of redoing our book and this info will be in there, along with a lot of new stuff. If I get a chance in the coming weeks, I’ll try and do a blog post on the particulars excerpted from the book.
Hope this helps,
Jack
#5 by jafabrit on November 7, 2013 - 3:51 pm
Thank you, I have been trying to explain to friends why I can’t just SUE every time someone has ripped me off and I have paid a dear lesson by not registering my work sooner.
#6 by Harvey Morgan II on November 16, 2013 - 6:58 pm
I have just made a suggestion at Adobe for a Lightroom/Bridge feature, a “registered copyright” marker and a “needs registered” marker flag. Maybe R© and N©. This would encourage more photographers to actually register images. Maybe your work with NAPP could help this come about. Thanks.
#7 by Lee Fruchter on February 14, 2014 - 9:47 pm
I am a hobbyist photographer. Once I regiser my images and pay the $35.00 fee, how do I register other images that are on my computer?
Do I have to pay $35.00 each time? Can I create a collection and add previous work with the $35.00 fee?
#8 by Jack and Ed on February 14, 2014 - 10:15 pm
It’s $35 per application. As long as the previous work was not published, like on a social site, then you can usually make them a collection and register them. You can register published work, but not mixed with unpublished work. Without knowing particulars of course, this is just general information.
#9 by Holly on April 7, 2014 - 5:54 pm
Further to your comment/reply to Ken (#3/4), I was actually speaking with a representative of the US Copyright Office today regarding registration of published images. According to her, unless you publish ALL the images on the same day, you are not completing the process correctly. For example, if you decided to do the registration by quarter, and published images as you went along (to flickr, your blog, instragram, whatever), you can’t upload (register) them in one go. All images would have to be published at once, so the published date would match for all the images. Please comment on this, as I have (for the last two quarters) done a published/unpublished submission. Going forward, given this information, I will have to collect a series of work, from different photography outings, and submit as unpublished before I post anywhere. Kind of stifles the creative process. 🙁 Would be nice if there was a subscription option, so you could upload/register on an ongoing basis, instead of being forced to hold off publishing just completed work (in order to have a large enough body to justify the registration cost).
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#10 by Jandroid on March 26, 2015 - 4:17 am
I’m really clear about needing to register my UNPUBLISHED works in a TIMELY fashion NOW, thank you very much. However, since I was a naive newbie 6 years ago, and published loads of images in both print and online (flicker, FB) before learning about copyright issues this year, is there any point in now registering the *well out of date* published images? Is it even possible? You never seem to address this, and I’m pretty sure it’s a very very common experience by others like me who shot (and published) first, and asked q’s later… thanks.