Copyright Registration in the United States

Copyright Registration and Protection of Artistic Work in the U.S.

Copyright laws are very complex, and they are different all over the world. This post is directly relevant only to my artist friends (photographers, painters, etc.) in the U.S. The internet has made protection of one’s work difficult the world over, although it has, at the same time, made work much more accessible, a benefit for artists.

(Disclaimer: I am a photographer very interested in protecting the rights in my work. These are some of the things I have learned and some of the things I do. For legal advice, always consult an attorney well versed in copyright law. It is complex and is in the process of changing.)

In the United States, copyright is guaranteed in the Constitution itself. It is not in an amendment; it is in the Constitution itself! This leads to a couple of interesting facts. Copyright laws are written and revised by Congress (so don’t expect changes to occur at breakneck speed these days). Perhaps more importantly, depending on your point of view, copyright cases are heard in Federal (not State!) courts (have you ever heard the expression, “don’t make a federal case out of it?” There are reasons for that expression! Federal lawsuits are very expensive and time consuming!)

I’m always a little surprised when I realize that the only people I actually know personally who have registered their copyrights in their art are the instructor (an attorney/photographer) I had for a class, “Legal Issues in the Digital Arts” and I. In the U.S., an artist owns the copyright in his/her art from the moment a work is created (unless it was a “work made for hire” or for some reason the artist transferred the copyright). In the U.S., however, an unregistered copyright is pretty meaningless in cases of infringement.

Here is the U.S. Copyright Office Circular with which every artist in the U.S. should be familiar:

Copyright Basics

Among these advantages [of registration] are the following:

• Registration establishes a public record of the copyright claim.

• Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.

• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.

• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.

The short and the long of it is, if you are an artist who wishes to protect his/her works against infringement, the works need to be registered in the Copyright Office. And, for full relief in infringement cases, including statutory damages and attorney’s fees, the registration needs to be done within three months of publication (consult an attorney about how the Copyright Office interprets “publication,” if in doubt) or prior to infringement.

“It is expensive” and “it is too time-consuming” are two of the reasons I hear over and over from fellow artists who do not register their copyrights.

An artist can register an unlimited number of copyrights using the Copyright Office’s eCO system for $35.00. If you are a photographer, that is not $35.00 per image. That is $35.00 for as many images as you care to register at one time. (Note: “published” and “unpublished” images must be registered separately). I have registered copyrights in over 1000 images at one time, meaning each image registered cost less than $0.035! I don’t think I have ever registered fewer than 100 at a time, bringing the cost all the way up to $0.35 per image registered. Given that most copyrights in the U.S. currently last for 70 years from the death of the artist, and the rights pass on to heirs, that seems to me to be a pretty small investment for the protection that registration provides to you and your estate.

“Too time consuming” is also a false argument. My photographic workflow always begins in Lightroom. As soon as images from a day’s session are uploaded, the first thing I do is export all into a folder containing only images to be sent for copyright registration, all resized to 600 pixels on the longest side, and at a resolution of 72 ppi. These are unedited: jpgs straight from the camera. The entire process takes less than 15 minutes.

Of note, the Copyright Office does not make recommendations for file sizes. So, after you look around the internet for various recommendations, you’ll probably want to speak with your copyright attorney. A book I have really enjoyed is Greenberg and Reznicki, Photographer’s Survival Manual: A Legal Guide for Artists in the Digital Age. This is what they say on page 69:

You really don’t want to send in hi-res files unless they are needed for some specific reason. We recommend images at resolutions of no more than 800 pixels on the longest side, at 72 ppi, with a compression of 5 or 6. The records at the Copyright Office are public information – anyone can go in and look around. Now, you’d have to be a pretty stupid criminal to steal a copyrighted, registered image from the Copyright Office; but if you read the papers at all, you know there is no shortage of stupid criminals. Why tempt fate? Your image file has to be just big enough to be reproduced in court if you have an infringement case.

The American Society of Media Photographers has wonderful and detailed instructions for all phases of the registration process, and I highly recommend their tutorial. The recommendation of the ASMP is generally 600 pixels on the longest side.

So, you might ask, how long does it take to fill out the forms and upload the images when you are ready to register the copyrights of the images you have saved in a file? The first time took me a couple of hours. Now that I know the process, filling out the forms takes less than 15 minutes. The upload of images depends upon how many images I am registering that day. If the upload takes awhile, I can be doing other things while that is happening. Once again, ASMP walks you through the entire process.

So, you are saying, “yeah, yeah, yeah, registration isn’t so expensive and it isn’t so time consuming, but I would never go to Federal Court so why bother?” I’m going to give you just a few reasons why it is in your best interest to bother to register your copyrights.

1. You say you don’t want to go to Federal Court to try an infringement case? Well, neither do I, really. So, imagine that you are someone who has willfully infringed your registered work. Do you think that person wants to go to Federal Court and possibly end up paying statutory damages (up to $150,000 per infringement) plus your attorney’s fees, to say nothing of his/her own attorney’s fees, etc.? Probably not. Going to court is always a crap shoot for either side, but an infringer potentially has the most to lose; sometimes a lot! That means there is a good chance a case will be settled out of court. Think about that.

2. Because Federal Court cases can be so expensive and time consuming, the Copyright Office has been looking into the possibility of establishing something akin to a “Small Claims Court” for copyright issues. Read the Background statement, and then the comments and notes on the sidebar of the Background page. Almost all – though not entirely all – recommend that registration remain a requirement for works being tried in such a court. I strongly suspect that if a “small claims” route is ever established, registration will remain a requirement, because it establishes the facts of copyright ownership. Registering your copyrights is just a good habit to establish.

3. ‘Orphan Works.’ The issue of works without a known copyright holder or even whether or not a work has entered the public domain is a major deterrent to use of works in research, etc. This is an issue not only in the U.S., but around the world. The U.S. Copyright Office’s Background Statement, along with the sidebar information, is well worth reading. In my mind, there is no question that usage rules will be loosened and penalties for “good faith” users markedly decreased or eliminated altogether. But, remember that registration establishes the facts of the copyright, and if your ownership and contact data should be lost from the image itself (I’ll discuss the many ways that can happen at another time), you can use the registration to assert your rights in the image, although damages may be markedly reduced or totally unavailable in the case of “good faith” use. This is a rapidly evolving area of copyright around the entire world, so we all need to be paying attention and doing everything possible to protect our work.

Enough on this topic for today. I suspect very few readers have read all the way to this end. At some point in the future I’ll tackle the user agreements in Facebook and other social network sites; stripping of embedded metadata in your images by sites such as Facebook and others; why the taboo on watermarks, left over from the film age, is outdated in the digital age; why photography websites and competitions that request hi-res files should send up all kinds of red flags in your mind; and many others.

In the meantime, I strongly encourage visual artists in the U.S. to register their copyrights. It says you care about protecting your work, and it is the professional thing to do. It is taking care of business.