One of the things that make this copyright blog of ours unique is that we pull stuff from our actual experiences. They are not assumptions, not impossible scenarios or “what ifs”, but rather experiences and events from the field, from real life. Most of the time the names and the exact facts are changed to protect the innocent, the guilty, and the foolish. We use the “Blue in the Face” logo, because no matter how often we say something, we find often find ourselves repeating things over and over again until we have become, blue in the face.
With that, allow us to state some things we’ve said before because as the Farmer’s Insurance tagline says, “We know a thing or two because we’ve seen a thing or two”. Although it does sound better when Oscar winner J.K. Simmons says it. While they are hardly on the level of The Ten Commandments there are some basic rules that will fill and/or protect your wallet.
First, there is no substitute for filing your registration with the Copyright Office at www.copyright.gov Nothing. It’s not only the gold standard, it’s the only standard to really protect your images in the United States. Too many photographers we speak with have found this out the hard way.
Second, register your images yourself. It’s not hard, it’s not complicated, 9 year olds do it. Anyone or any company that wants to do it for you is simply placing their hand in your pocket, even if it’s a “free” service. Nothing like that is free. There is no free lunch and heaven forbid one of these “services” screws up your registration. None that we are acquainted with guarantee an accurate registration with monetary compensation.
Third, do not discuss any disputes of an kind on social media. If you’ve been infringed or even think your work might have been infringed, consult with a competent IP lawyer. We know that many of you want to get everyone riled up and start a campaign against your infringer by harnessing the power of social media. That should be your last option after you’ve gone through all legal options. Even then, you should sleep on it, tread very carefully and check with a lawyer because the blowback can be very, very expensive.
Fourth, do not send an invoice to an infringer for perceived infringements. We’ll have more on where we think this myth of sending an invoice for two or three times your usual fee comes from, but for now understand that sending any invoice hamstrings you. It is paid, we’d guess 5% of the time, if that. (OK, we have one assumption here, forgive us). If you find out the infringement is bigger than you first thought and you now want to sue, guess what? The other side will show the judge your invoice and you will be asked why there is an invoice from you for $600 and now you want $30,000 because your attorney has correctly determined that $30,000 is quite reasonable under The Copyright Law. That opening offer will not go well for you and your lawyer and you will be made out to look like a “pig”. That is an important factor because if the court views your lawyer as being out for a big fee, you the client suffers. When it comes to sending out “penalty” invoices remember, “Just DON’T Do It”. Sorry, Nike.
Fifth, do not believe the campaign out there to scare you into thinking that you can’t sue unless you spend $100,000 or more and/or that lawyers will not even take your case unless it’s “worth at lest $30,000”. Both statements we can say from real world experience, are BS.
Sixth, do not assume that an infringement of an unregistered image is not worthwhile pursuing. We have written in this blog of a 2 million dollar recovery in such a case (Andrew Paul Leonard) and Ed has had more cases than he can count of collecting high five and even six figure cases where the image was registered solely to be able to sue and actual damages only were recovered or settled for. The decision on whether a claim is economically viable for litigation has to be made on a case-by-case basis in consultation with an IP attorney.
Seventh, lastly,when registering unpublished images register the entire shoot. Every single image, all of them. Even before you color correct or any other corrections. An image that is enhanced by processing is a derivative of your image and you’re still covered, even after you HDR’d it. The fee is a single $55 for the entire submission regardless of whether you are registering 2 images or 2,000. A single image by itself is only $35, but we think thousands for $55 is a good deal. Jack’s high water mark is 13,000 from an African trip.
Do not select “only” the best picture or the single image your client likes or uses. Register the entire take, all of them never just select a single image because you believe it is a “representative sample”. There are no exceptions to this rule. Simple, short, direct and now you have no excuse for not following it. Again, the registration fee is the same $55 regardless of the number of images you are registering.
That’s it for now, but we’re sure to have some more “blue material” sooner rather than later.
#1 by gene x hwang/orange photography on June 19, 2017 - 11:42 pm
Great points, especially #4. Recently had an infringement issue (was an image published in a book) and went that route. In the end it worked out OK but as you all state, it could have really stuck the amount. Just registered copyrights today and it is quite easy. The copyright office of late has been pretty swift in turning them around too. Thanks for all the great info you all share!
#2 by Adam on June 22, 2017 - 5:32 pm
Thanks for the great article. I’ve registered both published and unpublished images. Lately, I’ve read that it’s better to only register published images, in batches, every 3 months. I’ve wondered if it’s better, and if I get the same protection just registering all my images right after a big shoot, rather than waiting until I publish them. While it’s less to keep track of, IP lawyers are always asking for a first publish date so that still needs to be tracked. What are your thoughts?
#3 by Brandon V on July 4, 2017 - 2:45 pm
Great article and very rejuvenating as I currently work through a large backlog of registrations of previous work! I think one of the biggest challenges for many of us is that our images must be sent to the client under tight deadlines (which to my understanding renders them “published,” the potential debate surrounding which notwithstanding), yet the revenue from each shoot does not justify its own registration of a collection of unpublished photos. Yet, for us to register a group of published photographs from different dates (let’s say every 3 months or 750 images), the copyright office wants the publication date of each individual image, which has no preexisting metadata field in Lightroom, as well as this information to either be filled out on the paper form and the deposit copy mailed via CD/DVD, or if you are part of their “pilot” program, through the eCO system. I was advised by an examiner that I must supply in the contents title field, the filename and publication date of every single image, broken up into continuous segments of less than or equal to 325 characters with spaces, to ensure the full filenames and dates show up on the application. In 2017, mind you. So my first registration involved using a custom Lightroom plugin to provide a space for the publication date, then using another plugin to export a spreadsheet of the images subject to that registration and their published dates, at which point I did a mail-merge and used my word processor’s character count feature to make sure I was cutting and pasting the right amount of text into the fields. An excruciating process to say the least, and there must be a better way. I don’t know how anyone without a fairly solid knowledge of data manipulation could handle this process for 750 images.
#4 by Jack and Ed on July 4, 2017 - 4:10 pm
Brandon, Wish we had an answer or solution, but this is one of the reasons we emphasize registering as unpublished whenever possible. I’ve had tight deadlines, but always tried to register jobs the night that I delivered images, working on the fact the client didn’t publish that fast. But I know that’s not always possible in the real world. And in some cases, it’s published on delivery, moments after it’s shot for some photographers. It is frustrating.
But this is the process, this is the law, and we have to live with it until it’s hopefully changed.
Also, you said you used a word processor. In our book we recommend using a “dumb” processor, like Notes, for titles, because Word and other large feature word processors leave hidden “stuff” and can screw up a registration. The test program in the past is also limited to 250 images, unless that’s changed. After they let you out of the test program, knowing you understand the published registration procedure, they lift that limit.
We think the issues around registering published images is one of, if not the biggest problem in registration. There is a big campaign to pass the Small Claims process, which is really just arbitration and both parties need to agree to come to the table. Good luck on that in some cases, especially when the other side has deep pockets and staff lawyers. But I digress. Even with a Small Claims option, your images still need to be registered. No registration, no case, small claim or big claim. We feel the real effort should be placed on getting more photographers to register their work and also fix the issue of registering published work. If a lot more photographers registered their work, it would be looked at differently at the Copyright Office. I’d like to see no distinction between registering unpublished and published, because of the way we photographers produce and deliver images. Also, I’d like to see a better definition what constitutes published. That’s another subject that doesn’t always have a clear and specific line.
Jack
#5 by Brandon V on July 4, 2017 - 4:31 pm
Thank you for the thoughtful and thorough response, Jack. I am so glad to hear that I’m not somehow making up the process I described above. I was recently engaged in a very spirited discussion with a well-known photographer in my genre, whom I respect very much but disagreed with his assertion that I am somehow dramatically overcomplicating the process and that the pilot program I mentioned isn’t even a real thing. He mentioned just having his assistant upload many small JPEGs to eCO without regard to publication dates or the “contents title” requirements, which seems to perfectly describe the process for registering a collection of **unpublished** photographs, so while his registrations may be approved by the USCO, I fear they may be challenged in court, particularly if information such as publication dates would have a material effect on either the validity of the registration or more specifically the case being heard. I am so glad that you and Ed speak out so passionately against the various unsubstantiated, detrimental over-generalizations and complete myths that are so often passed around on discussion forums.
In my case, I sometimes have multiple photo shoots per day, and delivery on each shoot is generally expected within 24-72 hours. Even fully booked, I cannot justify $55 for every workday ($1,100 per month given 20 workdays in a month), so registration of groups of published photographs is the only feasible option (and I hope they lift that stupid 750 image limit soon as well).
With respect to the pilot program, you are correct—the examiner did mention that they would “prefer” I limit my first submission to 250 images, but didn’t specify it as a hard limit or condition of my first submission being accepted. I suspect they will let it go through because I was so careful to follow every requirement they mentioned. That said, as I have not found a reliable tutorial online that even begins to cover the technical underpinnings of efficiently tracking publication dates in Lightroom and exporting/manipulating the necessary data in a meaningful and efficient way for participants of the eCO group registration pilot program. I believe I have found a solution using a couple “donationware” Lightroom plugins. It still requires some manual work, but saved me many hours. I begged the examiner to let me simply export all this info in an outer border applied to the images in the deposit copy, but they were insistent that the COTI fields be completed in the 325-character segments (really the biggest hitch in the whole process).
#6 by Derek G on July 29, 2017 - 10:31 pm
Hi Ed and Jack,
My question on registration centers on registering using a pen or fictitious name. I searched your site for previous coverage of this issue, but did not find anything. If comments regarding this subject exist in previous posts please be so kind as to direct me to them. Otherwise, here is my question:
For the purpose of separating my Fine Art work from my more Commercial work that I hope to sell at a lower price but in greater quantity, I am considering using a fictitious or pen name for the commercial work. Can this be done as easily as registering it under one’s real name? If I were to register all my images under my real name (which I plan to use for the Fine Art work anyway) would this cover work I later publish under a pseudonym in order to try to sell commercially, or do I need to carefully determine up front what images will be sold under my real name and which under my pseudonym? And only then register them under the respective names they will be sold under? In perusing the copyright office’s terms, I noticed that they said that copyright registrations can, under certain circumstances, be done with a pseudonym, but they did not specify what those circumstances are or how to do so. Ultimately, does registering under a pseudonym (if even possible) ultimately put your copyright at risk I any way? Thanks in advance. Derek
#7 by James on May 7, 2019 - 3:11 am
Hi Ed and Jack,
You say above in point 7, “An image that is enhanced by processing is a derivative of your image and you’re still covered, even after you HDR’d it.” Does that work in reverse as well?
By that I mean, if I am more likely to want to use/publish the B&W or Sepia derivative of my original color image, can I copyright the B&W/sepia version and have it still cover other derivatives of the image including the color original and any color derivatives?
I realize you might say, well why not just copyright the original color version. But I am less likely to use the color version and feel better protected copyrighting the version that is closer to what I intend to publish. I just don’t know if doing so will limit protection for other derivatives I might come up with later.
Thanks much. Great site. You guys to a great service to the photography community.
James
#8 by Jack and Ed on May 9, 2019 - 2:01 pm
Hi James,
These are hard to answer without seeing the specific images in question (we’ve been surprised at times when seeing specific images related to a question).
So, with that said, a generic, non-legal answer is that yes, you should be protected as they are all derivatives of your image.
As King Diarmait mac Cerbhiall, the High King of Ireland, stated in the 6th century regarding a case of a copied bible, “To every cow belongs it’s calf”.
So in my opinion, they’re related, the cow, the calf, your B&W and your color images. You should be fine.
Jack
#9 by James on May 10, 2019 - 3:09 am
Thanks, Jack. Much appreciated!