This post is brought to you by all those photographers that found out too late, if you want something done right, you gotta do it yourself.
We write, consult and lecture daily that photographers ought file their own registrations and never pay any service to do this. Any photographer or illustrator can and must do it themselves as part of their regular routine. There are a multitude of reasons but most importantly, this assures that everything gets registered. To risk not being able to bring a possibly highly profitable copyright case because some service charging 29$ has screwed up would be hard to endure – yet sadly it has happened to people we know.
Our book, The Photographer’s Survival Manual (a shameless, yet useful plug) donates plenty of space to all the steps involved to ease the filing one’s own application.
DVDs done by us are sold by Kelby Training and can be streamed from the web with simple step by step instructions on how to file. After reading or viewing the information we’ve done, we have very, very few people asking us for assistance or having difficulty even though they can reach either of us for instant help.
At the upcoming PhotoShop World (PSW) in Las Vegas on Sept. 7 – 9th (as we have done several times previously) we will do a copyright seminar on how to register your work. It is easily understandable as are – believe it or not – the instructions on the government’s own site. We will take questions at PSW for hours after our lectures. Most questions are easily disposed of and frankly are non-legal concerning file sizes and such. When we lecture in Vegas we ask for a show of hands “How many of you have signed up for a Player’s Club Card” – when not in Vegas we substitute, “How many of you have a super market discount card” – we then go on to say that copyright registration is about as difficult a process.
In our monthly column in PhotoShop User Magazine we have given the step by step instructions on how to register. We emphasize that anybody, even a child can do it. In fact the children of several of Ed’s clients do the registrations for their parent photographer as a “family activity”. Some of our clients with studio managers or full time assistants who they supervise have them do it. Our clients with archives, especially shooters who have not registered anything in decades can get a student intern from a college at no cost to make the registrations.
We have had many cases where services (long since out of business), publishers (some of the biggest) and media companies have screwed up or forgot to make correct copyright filings resulting in clients being S.O.L. In one case a top ten book publisher for decades fell on hard times, was sold, the acquiring company was dissolved via bankruptcy and no one had any paper proof of whether it had filed dozens of registrations. Our examination of government records in DC revealed that the employee(s) responsible was/were asleep at the switch and many, many big time books were unbeknownst even to the publisher, never registered. My client was S.O.L.
We sell books, DVDs, appear for lectures and scream until we’re blue in the face, to always do this yourself! These registration services (or stock agents) attempt to obtain the right to pursue your infringement(s) cases because that’s where the money is. They are typically (not always) attempting to do what Getty wants to do – prosecute a claim belonging to the photographer on its behalf. Ed has been retained by companies in the past to consult in connection with their intention of setting up a registration service. The Copyright Office’s eCO (electronic Copyright Office) system renders such services as not financially viable solely as registration services. Just think if 50% of all photographers using the service asked just one question in connection with a registration that needed legal input or the participation of a supervisor, the profit margin evaporates.
Finally – just who is registering these precious and valuable copyrights? What are their qualifications? Is the service going to issue a guaranty in the event it botches a filing? Will it post a bond if the service goes out of business and the copyright filing was screwed up leaving the photographer with no remedy?
Mom always knew best- “If you want something done right, do it yourself”.
#1 by Cluby on July 19, 2011 - 12:06 am
“They are typically (not always) attempting to do what Getty wants to do – prosecute a claim belonging to the photographer on its behalf. ”
Getty doesn’t bring claims belonging to the photographer on its behalf. That would fail, as you know, because the right to sue is not a separate section 106 right that can be assigned. As Righthaven has recently learned. Getty generally enters into exclusive license agreements. As a consequence, Getty is the owner of the copyright to the extent of its exclusive license. And as a copyright owner (not agent or assignee) it has standing.
Incidentally, I was pointed to this “copyright notice” or “agreement” or whatever the heck it is at Jack’s site:
http://www.reznicki.com/copyright.shtml
Jack may have a “mean” lawyer but not a very good one if she wrote that mess. It’s certainly not an agreement. And the “where you will be subject to a fine of US $150,000 statutory damages ” is the flip side to the everything should be free and/or it’s “fair use” crowd. Subject to a fine of $150K. Really ? The absolute upper end of the intentional infringement amount that the court can award. Sounds like a done deal the way you word it instead of a fantasy of your lawyer. It’s not a fine. Though I’m sure some defense counsel might argue it as such and, hence, unconstitutional. And you forgot to mention the $750 lower end of the scale. The entire “copyright information” I think you called it. No, wait, it’s an agreement. No it’s a warning. A threat maybe ? The thing as I will refer to it should be rewritten. It doesn’t make your lawyer sound mean it makes her sound like she can’t draft.
By the way, so long as you are questioning peoples qualifications. What are Jack’s qualification to be dolling out any legal advice whatsoever ?
#2 by Rich on July 19, 2011 - 4:21 pm
Jack,
Have you seen that The US Copyright Office is recommending a change to registering a group of unpublished photos . The Copyright Office is recommending providing a title for the group of photos and providing a title for each photo in the group. They also want a titles page.
I recently received a letter from the Copyright office stating this recommendation and that they might make it a requirement soon.
#3 by Jack and Ed on July 19, 2011 - 5:32 pm
No, sorry to have to tell you that you are confused and incorrect. This is a classic example of why interpreting complicated legal matters must be left to lawyers, judges and law professors. Anyone by contract can assign his/her rights to pursue a copyright claim to their agent who represents the image for licensing. It is unfortunately, done thousands of times a month. The Righhaven case has nothing whatever to do with a creator’s decision to contract his/her rights to make decisions as to whether, how or when to pursue a claim in infringement in a signed writing. Corbis, Getty and countless other agents have that right and use it (or not) everyday.
Getty (and others) as agent has sought (quite legally) and obtained the legal rights to determine how and whether the creator/author’s right will be pursued, to select lawyers and determine whether or not to settle and at what amount(s). In some contracts the photographer has some say in this process while in others it is solely up to the agent. Getty is not alone in this and specifically by contract does not acquire any rights in the copyright itself. That’s the way photographers get tricked. They think they still own they copyrights…and they do. BUT it is the agent who often has the sole right to sue to enforce them. Every contract is different. Suffice for now to say that your interpretation is incorrect and this type of complicated issue is why Jack and I write these pieces and lecture on this point incessantly.
The second part of your post concerning statutory damages is frankly, very confusing. If you wish to clarify what you are trying to say, we will be happy to respond. Most respectfully, we can’t figure out what your question or comment is.
Jack & Ed
#4 by Jack and Ed on July 19, 2011 - 6:26 pm
PS from just Jack- Usually I don’t answer anonymous emails that are casting aspersions, but in this case I will, with a question to you at the end. As far as my credentials, working in New York in the industry for 35 years, writing 3 books on the industry, being a past president and sitting on the board of two photography trade associations, PPA and APA (and initiating a half million copyright action against K-Mart while at PPA), doing copyright lobbying in Congress, teaching a graduate level course at SVA on the business of photography, meeting with officials at the Copyright office, winning several copyright infringement actions, talking to Ed several times a week on various issues, giving legal depositions in cases as an expert, and some other stuff, well sorta, kinda, make me what’s known in legal circles as an “industry expert”. Lawyers sorta have a hard time questioning my creds. In fact, they don’t.
Now with that explained, and with you questioning my creds, my question to you- what is your name, background, and expertise? Or do you want to stay hidden behind the curtain, casting aspersions?
Just Jack