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Copyright is More than Just a Symbol

As mentioned last week, in much of the world, photographs are copyrighted the moment you take them. You do not give away any of your rights by not plastering a copyright symbol all over them. It can be a good idea to include a copyright notice when publishing them though, even if only on your own website so that others will know that you are aware of your rights. Registering with the Copyright Office can also be a good idea — a better one than most photographers realize in fact. While your photographs are copyrighted even without registering them, doing so affords you a much greater degree of protection should you end up needing it.

DISCLAIMER: Copyright is a legal concept, and I am not a lawyer. The information presented here is accurate to the best of my knowledge at the time this article was published. But I am by no means an expert and laws do change — two good reasons to consult the wealth of information on copyright matters available from the source at the Copyright Office's own website. Also, I live in the United States and while general copyright concepts are similar in much of the world, I make no pretense at knowing the details elsewhere.

The first thing you need to determine is whether you can register the copyright. This may seem like a given, but in order to register, you must be the photographer and must be a United States citizen. The photos also must not have been previously registered since you can only register them once. The photos must also not have been made as part of your employment by someone else as a photographer, a situation known as a "work for hire." In such situations the images are generally owned by your employer, not you.

It's also important whether your images have been published yet or not. You have a much simpler time registering them if they haven't, but you can do so after publication too with a bit more paperwork. Publication is generally understood to mean that you have distributed copies to the public via sale, rental or other means. Simply displaying an image does not constitute publishing it. As to whether posting an image on the web constitutes publishing, the courts are still working on answering that. In general though, it depends on the context under which they were posted. Your typical photo sharing site does not count as publishing but a site from which people can buy copies of your work probably does. Just where the line between these two ends of the spectrum lies is still an open question. To avoid even needing to wonder about such things, you are better off not doing anything that might involve money at all until you register.

So, assuming you are with me so far and have some images that you shot that have not yet been published and you meet all the other requirements, how do you go about registering? You need three things: the correct form, and a copy of the images in question, and a check payable to the Copyright Office.

The form is known as the Short Form VA and is available as an Adobe Acrobat pdf file on the Copyright Office website at http://www.copyright.gov/forms/formvas.pdf. It's called the short form because there really isn't much to it. You'll need a title for the group of images you are registering. You can use something like "My trip to Africa 2007" or even "Photographs by (insert your name here) taken between April — June 2008." The Copyright Office doesn't care too much what you use but it should be descriptive and relatively specific to avoid confusion. The images should have been taken during the same calendar year which you enter as the "Year of Creation" on the form. For "Type of Authorship," check the box for Photograph, fill in your name and address and sign the form.

Having a copy of your photographs that you can send with the form used to be a major hassle in the pre-digital days. Contact prints and scans both required investments in time. Thankfully this is a thing of the past now, and it doesn't take much effort burn a CD with thumbnail jpegs for a batch of images, even a big batch. The images need to be big enough to clearly see, but even a couple hundred pixels in the long dimension is plenty. You only need a single copy of each image but should probably burn a second CD so you have one to keep yourself. Keep a copy of the form too of course.

The basic filing fee for a copyright submission went up to $45 in July of 2007. You will likely still see references to $30 which is what it was for quite a while, but as with all things, it has gone up. You can submit any number of unregistered images as described above for the same $45 fee, so just send them everything you shot, good and bad. You might think it makes sense to only register your best images, but it's actually far simpler send in everything other than your total rejects. Unless you delete it, register it. The fee is the same, and you never know if you might end up wanting to use an image for something later. You can fit a lot of thumbnails on a CD. By the way, I haven't tried it, but the Copyright Office is currently beta testing an electronic filing system that has only a $35 filing fee. You have request to be approved for the beta program, but even if you don't, this is likely the wave of the future.

Mail the form, your thumbnail CD, and check together to the Library of Congress, Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000 via Certified Mail with proof of delivery. Your copyright registration is effective as soon as they receive your submission. You will eventually get an official form back that you should file with your copy of everything, but that won't happen for at least several months. In the mean time, your proof of delivery from the Post Office will allow you to sleep at night without worry.

If your images have already been published, you'll generally need to fill out the Short Form VA as well as the "Continuation Sheet for Form VA - Group Registration of Photographs Form" (http://www.copyright.gov/forms/formgr_pph_con.pdf) that lists each individual photograph you are registering. As of 2005, you can include no more than 750 images in a batch this way, but listing far fewer than that can be painful. Registering before publication is definitely the way to go. If the images date to 1989 or before, there are even more special requirements. If they were published within the past 90 days though there's a grace period and you still can get away with the group registration method with just the Short Form VA. You'll also need two copies of each image as part of the submission for published images so burn an extra CD. You can't combine published and unpublished images in the same submission.

If you register within three months of publication, and before any infringement occurs, you can generally recover attorney's fees as well as claim statutory and actual damages. Things get harder if you register late and you will only be able to collect actual damages which, unless you sell your work will be hard to prove — and the burden would be on you. Things get really hard if you don't register at all. You will have to pay all attorney fees, if anyone will even take the case. And damages will be even harder to prove.

Your best bet is to get into the habit of batching up your images periodically and registering them together. Depending on how much you shoot, do it monthly, quarterly, or even just annually. Shooting digital makes filing easy, as does filing early. You know you really should, right?


Date posted: June 15, 2008 (updated July 13, 2008)

 

Copyright © 2008 Bob Johnson, Earthbound Light - all rights reserved.
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