Photos taken decades ago, infringed say two years ago BUT never registered CAN be registered now and the creator, estate, widow/widower etc can sue and collect money damages and put an end to the infringing uses. NEVER assume that it is too late to do anything without first speaking with an experience Copyright litigator.

By far the most commonly asked question Ed’s office gets concerns photos created years ago but never copyright registered. The calls are generally spawned by an infringement, death of the creator or dispute over ownership of the images.  This article will be the first of several and will not address the issue of Statute of Limitations which may serve to restrict the amount of time one has within which to sue upon learning of a copyright infringement.  That will be the subject of a later articles.

Callers to Ed’s office are typically Estate attorneys,  spouses of deceased or disabled photographers, photographers well into retirement, or those long engaged in another business unrelated to photography.  A  substantial infringement is discovered and the creator knows that he/she NEVER registered the work but remembers with crystal clarity shooting the job for Blockbuster Video in 1990 on a Tuesday. Now, 32 years later it is being used by a company that opened in 2020 and sells socks.  Its owner was born after Blockbuster died.  What to do?

Here are the United States Copyright Office (USCO) Rules for previously published photos:

A group of published photographs may be registered with the U.S. Copyright Office with one application and one filing fee, provided that the following conditions have been met:
* All the works in the group must be photographs.
* All the photographs must be published in the same calendar year.
* The group must include no more than 750 photographs.
* All the photographs must be created by the same author.
* The copyright claimant for each photograph must be the same person or organization.
* The applicant must provide a title for the group.
* The applicant must provide a sequentially numbered list containing a title, file name, and month/year of publication for each photograph in the group.

The Copyright Office has developed a template that may be used to create the above mentioned list. Your photo titles need to be grouped by month within the year you are registering. Use their Excel template. Don’t get creative. But if you are using Apple’s  Numbers program, it’s not going to like it. If using the Numbers program, you need to then use their form and make it a PDF.

Photographs that do not satisfy all of these requirements cannot be registered using this group registration option and are very likely to be rejected.

Applicants may use this option to register a group of photographs and only photographs. Can’t mix photos and paintings and videos. This option cannot be used to register any other type of work. For example, the Copyright Office will not accept an application that combines photographs with text, artwork, illustrations, or any other type of work. Don’t try to beat the system. Photos only, period.

All the photographs in the group must be published, and they must be published within the same calendar year and grouped my month. Applicants cannot use this option to register a group of unpublished photographs. This option cannot be used to register a group that includes both published and unpublished photographs. Likewise, this option cannot be used to register photographs that were published in different calendar years.  If the author or his/her legally designated assignee./heir/estate/executor can attest or prove that all of the images come from the shoot for XYZ in 1980, no problem.

The author of a photograph is generally the person who “shoots” or “takes” the photo. Can’t mix different authors in one registration unless all of the images inclusive of copyright were legally assigned by sale, inherited or gifted by the author to a museum, company, person or persons formally with the correct legal paperwork.

If the author is an individual photographer, all of the photos in the group must be created by that individual. If each photo was created as a “work made for hire,” the employer should be named as the author, even if the photos were taken by different photographers.

The copyright claimant for each photograph in the group must be the same person, estate or organization.  The claimant must be the author of all the photographs in the group, or the person or organization that owns all of the exclusive rights in those photographs by virtue of legal proceedings performed with formalities strictly adhered to.

Applicants may submit up to 750 photographs – recent rule – with each application. When completing the application, applicants must provide the total number of photographs that are included in the group. The limit is 750. Don’t get cute and try to go over that number. Your application will get rejected. You might have to file two applications if you are filing say 1,000 images.

Applicants must submit a digital copy of each photograph that is included in each group. The photographs must be in one of the following formats: JPEG, GIF, or TIFF. In addition, you must submit a list containing the title, file name, and month/year of publication for each photo being registered. The file name for each photograph should match the corresponding file names provided in your title list. If the file names do not match each other, the Office may ask you to exclude that photo from the claim or may refuse registration.

Them’s the rules.Follow them. Assume there is no wiggle room.

The Copyright Office strongly encourages you to combine the photos and the title list in a .zip file containing all the photos, and upload that file to the electronic registration system. The file size for the upload must not exceed 500 megabytes. The photos may be compressed to comply with this requirement.

Alternatively, you may place the photos and the title list on a physical storage device, such as a flash drive, CD-R, or DVD-R and deliver the device to the Office, but this will significantly delay the examination of your claim. To submit a physical copy of your photos after completing the application, print a shipping slip form the “Submit Your Work” screen and send it with the storage device to the address on the shipping slip.

In our next “chapter” we will get to the additional issues regarding the “mechanical steps” of registration of published works.  The take away for now, is that photos taken decades ago CAN be registered now.