Among all of the other benefits of registering your copyright, one of the practical reasons is that registration brings with it the legal presumption that you are the creator. The burden is thus placed on an infinger to disprove the validity of your registration. Typically this is very, very difficult. In other words, “very not easy”.
We often stress the point that you can register images which you may have created many years ago. Even if you shot the pictures during the Clinton or Reagan years, you can and should register the images.
So along comes another factoid gaining a foothold on the net. It usually appears in a form like this: “If your registration is made beyond 5 years after publication you lose the presumption of authorship. Therefore there is no reason to register old pictures” Essentially, bogus. In other words, “very not true”.
It is accurate to state that a registration made more than 5 years after publication is not automatically presumed to prove authorship but it merely requires that both sides assert whatever proof they have to establish who created the image if the issue of who created the image is contested. If the “infringer” is not claiming that it authored or created the picture, the lack of the presumption effectively makes no difference in court. The infringer would still need to establish that the registration is somehow flawed or improper on some other grounds ie: you stole the image from some one else and registered it in your name or more commonly, the registration does not cover the subject image. If you took the picture, you presumably can prove authorship without much difficulty. Showing out takes or similars taken at the same time typically does the trick.
If the pictures were registered more than 5 years after publication, the validity of your registration will be decided by the court. A valid registration of an “older” image is not made invalid because it was made 5+ years after publication. Usually your attorney establishes the validity of the registration in a very rudimentary fashion ie: your testimony or an affidavit of the circumstances of creation – where, when, how and why you took the shot.
The other side typically does not contest your “late” registration. There are of course, as there always are in the law, notable exceptions but they are not common. One example: showing that your registration was flawed on some technical grounds might serve to save a defendant from the risk of paying statutory damages. It is in the trial judge’s discretion to determine the validity of your registration and again, in most cases the infringer will not be contesting it.
Bottom line – don’t be a lawyer. Be a photographer and register all of work, even the “old” stuff, all of the time. Your old registered photos, like an ole hound dog, can still hunt.
#1 by Joseph Corrado on August 10, 2015 - 9:19 am
Hi Jack and Ed.
I’m a food and interior as well as fine art photographer living in Maine. (originally from Hoboken, NJ).
Love the book. It’s helped me considerably since I bought it. I can’t thank you enough.
I have a question. I’m pretty sure that this is’t the forum for this question, so I’m almost certain that it won’t get answered here. I would like to find the answer though in any way you deem.
I’ve shot interiors for my client, (Client A). It was at a location owned by the client of client a, (Client B). All the images are registered with the copyright office.
Client A has signed the usage rights agreement I put in the invoice (As per your book) The right paramaters and time frame are agreed and paid for. All Good. Client A now wants to pay for and supply (17) images to Client B. So far I’ve said that Client B can have the images as long as Client B signs the usage rights agreement outlined and you pay that fee. Client A comes back and says Client B wants indefinite use. I must say i don’t get the ethical warm fuzzies from Client B based on some interactions. I told my client the price per image, per year, decide how long indefinitely is?
I think my question is. Should I make the deal and Client B infringes, as I believe he most certainly would be by exceeding the limits of the agreement. Can I call you?
Joe Corrado
Thank You for all the great advice!
#2 by Jack and Ed on August 10, 2015 - 11:28 am
Yes, you can always contact Ed. I think all you can do is make sure your paperwork is in order, your invoice clear and not ambiguous a to the rights granted. Use our template for the front and back of the invoice and pursue them if they violate it. Truthfully, I’ve had clients exceed usage rights and I’ve ended up with far more money in my bank account from that, than if they negotiated additional usage. I don’t think you can do business fearful that someone will steal from you, you just have to be prepared.
Jack
#3 by Joseph Corrado on August 11, 2015 - 4:33 pm
Thank you Jack!
It’s still playing out. Hopefully, they do the right thing. I however have everything in line.
Joe
#4 by Mrs. Yates on October 19, 2015 - 5:18 pm
I have some “old dogs” I’m considering registering, but am finding the online registration forms confusing for this process. Have you written any articles on what constitutes publication? For instance, if one or two people bought prints of an image, is it published? If it is on Facebook but restricted to “friends,” is it published? I believe I have read on Copyright.gov that if a series of images were published in the same publication and year, they can be registered together. Can you verify this, and would this apply also to blogs and websites? Another post’s comment referred to a “pilot program” at the copyright office to help register published images, but I didn’t see any link to it? Or perhaps these are questions for the Copyright office’s “contact us” link, but I may not be the only photographer with a smattering of published images over the years, finally seeing it feasible to register them.
#5 by Jack and Ed on October 20, 2015 - 2:42 pm
The process for published works is confusing and the definition of “publication” is even more confusing. The Copyright Office is asking us photographers to make that determination sometimes. And it’s sometimes a grey area. Buying a print is not wide distribution, that’s not considered published. No grey area there. If you printed 500 and sold those, that would be published. Facebook is definitely a grey area and Ed and I don’t agree completely there. Can depend on how many “friends”. Ed thinks any number qualifies as published. As far as the pilot program for the Copyright Office, there’s a phone number to call, that will take me a day to find as I’m tied up today. You can also just call the general number at the Copyright Office and they’ll direct you to the right person. They’re always very helpful.
#6 by Adam Jason on May 21, 2016 - 1:08 pm
I just ordered the book 🙂
But had a specific question on derivative works that seemed related to this thread.
Let’s say I create photo-composite with several of my images that I took many years ago (all unpublished and have not yet registered) and then register the new composite now as published, because I posted it on facebook…
I am planning on going back through my archive and registering past years (as advised above), but
-Do I need to register these specific older individual images, or is it covered by the fact the I registered the composite?
-If I do register them, do I register them as published or unpublished?
– If I don’t need to register them, but I do anyway to be safe, (not knowing the answer to your above question), along with a batch of other (unrelated) images, can my registration be considered invalid because I already registered the composited one?
Also, does the same logic apply to a heavily edited image?
(ie: old un-registered image, heavily edited/retouched, and then registered as published)
thanks, Adam