{"id":1735,"date":"2017-06-05T15:15:00","date_gmt":"2017-06-05T19:15:00","guid":{"rendered":"https:\/\/thecopyrightzone.com\/?p=1735"},"modified":"2017-06-05T15:15:00","modified_gmt":"2017-06-05T19:15:00","slug":"a-tale-of-factoid-and-consequences","status":"publish","type":"post","link":"https:\/\/thecopyrightzone.com\/?p=1735","title":{"rendered":"A Tale of Factoid and Consequences"},"content":{"rendered":"

We are “blue in the face” in large measure because we keep cajoling, pleading, begging and even yelling (we\u00a0are both New Yorkers ya’ know)<\/em>\u00a0that everyone ought register their copyrights with the US Copyright Office all of the time, always, no exceptions.\u00a0As with all rules, along comes the apparent real life exception to our rule. It arises from legal advice that was given to a photographer from a photographer who wants to be a lawyer. The trouble with getting information from Internet experts, rather than lawyers, is they may posses what we call a \u201cfactoid\u201d. Something that has a grain of truth so it sounds right, but is off the mark enough to not only be wrong, but off enough to cause you great distress (and loss of money).<\/p>\n

Here is the slightly altered, but still real life scenario:<\/p>\n

Photographer resides in, let\u2019s say for example, the UK.\u00a0She creates a photo that is licensed for use on a product, for a service, or even in a magazine as an editorial. Doesn\u2019t matter which one. The important part is that she is paid in full and published in the UK\/EU in strict accordance with the license she issued to her client. Shot is not registered in the USA because her \u201cphotographer\/wannabe legal expert\u201d tells her that there is no need to register in the US because it\u2019s published in the UK\/EU.\u00a0She believes him because he authors a blog in which he discusses copyright!<\/p>\n

A year later the image appears in the USA via a willful\u00a0infringement by a US company which alters the embedded metadata and removes her watermark to boot.\u00a0The use is for something not remotely contemplated by the photographer nor did she ever know of or hear of the infringer.<\/p>\n

She naturally calls her “expert” who says, “No worries. You can still sue in the US even though you haven’t registered it there”.\u00a0 Well the “expert\u2019s” factoid is not\u00a0entirely<\/em>\u00a0wrong, but rather just off the mark enough to cost the photographer lots of American greenbacks.<\/p>\n

Here’s the legalease which we recite here not to bore you but to demonstrate how following the advice of something with a little knowledge<\/em> can be a dangerous to your wallet. The Copyright Law is called Title 17 of the U.S. Code (or USC Title 17) and at Section 411(a) it states:<\/p>\n

“Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b),<\/em>[1<\/em><\/a>]<\/em>\u00a0no civil action for infringement of the copyright in any\u00a0United States work<\/strong>\u00a0shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title”.\u00a0<\/em><\/p>\n

Plain English\u00a0translation:<\/p>\n

For over a hundred years, the United States resisted joining the Berne Union, in part because of the desire to maintain the formalities U.S. law required – one must register to sue. In order to be eligible to join the Berne Union, Congress had to amend the Copyright Act to dispose of the many formalities the Act required.<\/p>\n

Therefore, while the United States Copyright Act\u00a0can<\/strong>\u00a0impose a requirement that the owner of a United States work\u00a0must<\/strong>\u00a0register the copyright with the Copyright Office before filing an infringement suit in federal court, BUT it\u00a0cannot<\/em>\u00a0impose that same obligation on\u00a0foreign nationals.\u00a0<\/strong><\/p>\n

The Berne convention does not require registration to file a suit (outside the USA) especially if the photo was previously and properly published in say, the EU. The U.S. finally joined the Berne Convention more than a century after it was drafted. The U.S. Congress, however, explicitly made the Berne Convention “non-executing” (hang on, exiting the “legal weeds” soon) which means that the Berne Convention has no legal effect in the courts of the U.S.; only the laws passed by Congress to\u00a0conform U.S. law to the Berne Convention carry any weight.<\/em><\/p>\n

Bottom Line: The U.S. Congress passed a law that\u00a0eliminated\u00a0the previous requirement that a\u00a0foreign copyright holder<\/em><\/strong>\u00a0had to register its work with the Copyright Office before being able to file a lawsuit in the USA.\u00a0Thus, under the \u201cBerne Implementation Act\u201d a foreign rights holder\u00a0(unlike a US citizen) does not need a formal registration to file a lawsuit in the U.S.. Sounds like an advantage if you are not a citizen. But the devil is in the details. \u00a0<\/strong>But (and it\u2019s a big but) to\u00a0obtain all the benefits of U.S. copyright laws, formal registration is still required.<\/u><\/em><\/p>\n

Or as we say here on this side of the pond, \u201cYikes\u201d.<\/p>\n

So while the UK photographer can file her case for copyright infringement in the Federal Courts in the US of A, she\u00a0can not<\/strong>\u00a0seek statutory damages, attorneys fees nor is she the presumptive owner\/creator of the image.\u00a0 All of those remedies (especially the claims for statutory damages and attorneys fees) are now not<\/em> available to her thanks to the advice of her online “expert”.\u00a0 She\u00a0can<\/em>\u00a0recover actual damages only if she files and wins her case in Federal Court.<\/p>\n

While technically correct in that she\u00a0could file her case in the USA without a registration,<\/em>\u00a0the potential monetary value of the case in our experience was reduced by only about $125,000 give or take a few bucks.\u00a0On the bright side, her expert’s advice did spare her the then $35 registration fee that she would have paid to register her entire assignment shoot of about 100 images. \u00a0(She is now busy registering those works, some of which have been published, some not, necessitating multiple applications and at the increased filing fee of $55 now in effect).<\/p>\n

And what of her \u201cphotographer\/wannabe legal expert”, the source of copyright infringement wisdom?\u00a0Did he go on to law school? Did his photo career take off? Nope. It seems that he has something to do with the wholesale distribution of food products in one of the smaller EU nations and no longer blogs nor creates photos.<\/p>\n

So once again let us raise our voices to chant in unison, “Register everything, all of the time, no exceptions”.<\/p>\n","protected":false},"excerpt":{"rendered":"

We are “blue in the face” in large measure because we keep cajoling, pleading, begging and even yelling (we\u00a0are both New Yorkers ya’ know)\u00a0that everyone ought register their copyrights with the US Copyright Office all of the time, always, no exceptions.\u00a0As with all rules, along comes the apparent real life exception to our rule. It […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[151,3,613,15,20],"tags":[141,183,643,644],"class_list":["post-1735","post","type-post","status-publish","format-standard","hentry","category-be-aware","category-copyright-registration","category-lawyers","category-legal","category-stuff-you-should-know","tag-copyright-registration-2","tag-factoids","tag-foreign-nationals","tag-wannabe-legal-expert"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1735","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1735"}],"version-history":[{"count":2,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1735\/revisions"}],"predecessor-version":[{"id":1737,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1735\/revisions\/1737"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1735"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1735"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1735"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}