No excuses! Why all photographers need to copyright their work
As a copyright lawyer for the past 20 years, I’ve spoken to a lot of photographers whose work has been infringed. And because I’m a copyright lawyer, I’m always encouraging photographers to register their photographs with the U.S. Copyright Office. Yet so often when speaking to photographers, I hear a litany of excuses for why they can’t register the photographs with the copyright office:
• “It’s too expensive.”
• “It’s too difficult.”
• “Copyright protection exists upon creation, so I can wait until after the infringement to register the photo.”All of these excuses are not only wrong, but they are also potentially costing the photographer tens of thousands of dollars. This article will explain why registering your photos with the Copyright Office has never been easier–and how a registration could mean the difference between getting rich or getting ripped-off.
Excuse #1–”It’s too expensive”
Many photographers are under the mistaken impression that every photograph has to be registered separately. At $35 a pop, that would add up really quickly. But that is just not true. Using Form GR/PPH/CON, a photographer can register up to 750 published photographs for the $35 fee. The requirements are that:
• all the photographs are by the same photographer (if an employer for hire is named as author, only one photographer’s work can be included),
• all the photographs are published in the same calendar year, and
• all the photographs have the same copyright claimant.If you would like to register more than 750 photographs, you can still do so with a single filing fee using Form VA if you identify the date of publication for each photograph on the images deposited with the application.
Excuse #2–”It’s too difficult”
Anyone who says that registration is too difficult simply hasn’t done it. It is sometimes time consuming, but if you know your name, address, citizenship, and the year of creation of the photos, you have the intelligence to register your photos with the copyright office. The Copyright Office has a number of circulars that explain how to fill out the form, including a few specifically addressed to photographers. And the Copyright Office is currently allowing, on a trial basis, electronic registration of groups of published photographs. To be eligible for this trial, call the Visual Arts Division at (202) 707-8202.
One thing you should be aware of: The Copyright Office makes a distinction between “published” and “unpublished works.” A work is considered “published” not only if it was distributed to the public, but also if the photographer distributed copies to a group of people for purposes of further distribution or public display. This is important for paparazzi photographers who might immediately send out a group of photos to various magazines or websites for purchase. Even if all of them are not used, they can all be considered “published.”
Excuse #3–”I can wait until after the infringement to register the photo.”
It is true that the photographer owns the copyright immediately upon creation. But as a practical matter, registration is imperative if you want to be able to sue someone for infringing your work. That is because the Copyright Act gives the photographer different forms of relief, depending on whether the photo was registered at the time of the infringement (or within 90 days of the photo’s publication).
If a registered work is infringed, the photographer can claim statutory damages of up to $30,000 and of up to $150,000 if willful infringement is proved. The photographer can also recover his attorney’s fees, which easily add up to tens of thousands of dollars.
But if the photographer did not register the photo before the infringement (or within 90 days of publication), then he can recover only his actual damages, plus any profits of the defendant attributable to the infringement.
Let’s take a hypothetical case and see how that plays out.
Mary, an aspiring nature photographer, posts photographs of her trip to the Grand Canyon on her blog. One of her photos is taken by an unscrupulous ad agency and used in the background for a series of travel brochures.
Scenario #1–Mary Did Not Register the Photograph
If Mary wants to sue, all she could get would be her actual damages. Because Mary is not yet an established photographer, her best sale to date was for $1,000. So, if she sued, the most she could get would be $1,000 (or possibly some small multiple of that). But because her attorney wants $10,000 to file the case, it doesn’t make economic sense for her to file the lawsuit. It will cost her more than she would ever recover.
Although, in theory, Mary could also obtain the infringer’s profits related to use of the photograph, the reality is that proving those profits would be very expensive. The process would almost certainly cost more in expert’s fees and attorney’s fees than she would ever recover. As a result, Mary does not file a lawsuit and ends up recovering nothing.
Scenario #2–Mary Did Register the Photograph
In this case, Mary can seek statutory damages for willful infringement. And she can obtain attorney’s fees in the lawsuit. She hires a lawyer (who is now willing to work on a contingency-fee basis). The lawyer writes a letter to the advertising agency. A little back and forth, and the matter is settled for $20,000 a few weeks later. Not a fortune, but a nice payday for the use of one photograph.
Now, obviously, this scenario is just an example, and the results will change depending on a number of factors. But as a general rule, the $35 spent on registering your photos with the Copyright Office will be the best money you ever spent.
DISCLAIMER: Legal information is not the same as legal advice. Information of a legal nature posted or made available on this website is not intended as legal advice. It is intended for general informational purposes only and you should not rely on it. It is not a substitute for consultation with an attorney licensed to practice in your jurisdiction.
Larry Zerner is an entertainment lawyer in Los Angeles representing actors, writers, directors, producers and others in the entertainment field. More information can be found at www.zernerlaw.com.