Song, Dance, Seltzer in the Pants?

What do I have to do to get you people to register your copyrights?!?! Look, I love you creative types, but I’m getting a dent in my head from the repeated headdesking caused by cases that would be as close to perfect as you can get, except that the work was not timely registered and thus are essentially worth nothing.

We want to be able to help you and our firm (photoattorney.com) will take smaller cases than many other firms, but we can’t take cases on a contingency fee basis where actual damages are the only option and those are the lost license fee for social media which you’ve licensed for $200 to other clients. If the work is timely registered then we have a much larger stick to wield on your behalf: statutory damages of between $750 and $30,000 (for non-willful infringement) plus a good shot at attorneys’ fees if the matter is litigated.

Timely registration isn’t that complicated. A registration is timely only when one of the following is true:

  1. the effective date of the registration is before the infringement starts; or
  2. the effective date of the registration is within three calendar months of the first publication of the work, and that could very likely be the date you provided the work to your client rather than the date when your client used the work.

That’s it. That’s all. Those are the law’s only options. You’ve got to register your work and the registration has to fit either #1 or #2 for you to be able to have access to awards of statutory damages and the potential for winning attorneys’ fees and costs in litigation.

So how can you make those rules work for you? First, for any new work that is likely going to be published in the sense the Copyright Act uses the term (and how I mean it throughout this post, which includes work you’re going to provide to your client for their consideration and possible use as well as work you offer for license on your own website or elsewhere) either register it as unpublished before doing anything with it or register your work as published within that three-calendar-month window.

I prefer the second option for a bunch of reasons, some of which are very nit-picky technical legal ones that I’m not going to bore you with here (like it may be that if you know the work is going to be published on a certain date then you really have to register it as published rather than unpublished even if that date hasn’t happened yet). Mostly, I prefer the “register as published” option because these days almost everything is published. So, I suggest a photographer should just register everything shot the month before on the last day of that month and that way you don’t have to worry about missing the three-month window*. For best protection be sure to remove any images you know weren’t published and register those separately as unpublished at any time before you publish them. Mixing published and unpublished is like crossing the streams in Ghostbusters, that is, bad.

Anyway, you can do group published photo registrations online for one fee ($55) so for a year that would be 12 x $55 or $660. Group published photo registrations are slightly more complicated to do but after you have done it once, you’ll see it isn’t that bad and, best part for now, is that your first time you will be supervised by the Copyright Office itself as a part of its pilot program, so they’ll help you through it.

Now, before you start whining about that cost, let me point out, again, that the minimum statutory damages award for a single infringement is $750. The math is totally in your favor.

So please, register your work. I beg you. I’ll do anything to get you folks to register your work. Someone get me a seltzer bottle and I’ll prove it.

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(The subject line of this post is a reference to Chuckles the Clown‘s philosophy)

*It also helps you avoid another rule that for a group published photo registration the work must be published within the same calendar year so, if you do it on the last day of each month, you won’t screw that up.

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