Basics of Copyright Registration

If you’re like me, you have several years worth of images that have never been registered with the copyright office. Where do we start? Coming up with the answer hasn’t been easy for me, but in digging around, I’ve figured it out a pretty good system that I hope will save you a lot of time and make the process as easy as cherry pie. Before we can implement it, there’s a few things you’ll need to know.

In a nutshell, registration takes place by filling out the proper form, popping low res copies of your images on a disk and then shipping the package off to the Copyright office. Once the registration has been accepted, you’ll get a certificate back in the mail.

Published verses Unpublished
Before you get to that point, there’s some basics to understand. First thing to know is that you can’t just register all your images at once. That would be nice, but it’s simply not possible. For starters, the copyright office distinguishes images that are “published” verses those that are “unpublished.” You’re not allowed to register the two together on the same form. No how; no way.

That however begs the question: What constitutes publication? There’s no absolute answer here. The law offers little guidance and neither does the copyright office. My definition, backed by online research, is that an image becomes published once it’s distributed to the public. Distribution to a close circle of your family may not be publication, but if you post the photos online for a client’s family and their friends to see, that’s publication. Once money changes hands, as in someone pays you for the photos that you then provide them with, you can be pretty sure that publication has taken place.

For my purposes, anytime I’ve delivered a digital image to the client, I consider the image published. An image is published whenever I post to a web gallery, a blog, Facebook or my website. Obviously, once an image is printed in a magazine or other printed material, it’s published. Anytime the image leaves my control and may be reproduced by others in addition to the actual recipient, it’s published.

Let’s Get Specific
What about the situation where you deliver to the client a disk of images without any other online posting. Is that published? I’ll say yes because a) money has changed hands and b) the purpose of delivering those photos is for the client to make prints and share the images with a wider circle of people.

On the other hand, let’s say you’re a portrait photographer who only does in-studio proofing. If the images don’t leave the studio and the only thing the client receives is whatever finished prints they order, then none of the images from the shoot are likely to be considered published. However, if you subsequently post the images on Facebook, those images would indeed be published.

Three Month Rule
One last piece of information that’s going to come in handy later is that images that are registered within three months of first publication are entitled to the same level of protection as though they had been registered prior to an infringement. So if you post your images online in May and register them by the end of July, you’re covered even if someone swipes your images in June.

This only applies to first publication however. If you publish the image in May but someone swipes the image four months later in August – and then you subsequently register the image, you’re out of luck as far registration is concerned. Any infringement that takes place after that registration is covered, but not the one at issue.

The “When” Matters
The other thing that’s very important to the process of registration is the year the photos were either created, if they’re “unpublished,” or the year they were first published, if they’re considered “published.” For published images, the creation date isn’t as important as the publication date; all published images must be registered by the year they were first published and only may be registered with other images from the same year.

Thus, an image that was shot in 2010 but was posted on a web gallery and delivered on disk to the client in 2011 would be submitted along with your images that were shot and published in 2011.

Now that we know this basic information, we can start to come up with a strategy for registering our images. Let’s begin with all of our images from years past. If you’ve got three years of images to register, you’ll need to do one registration for each year of published images plus an additional registration for all of your unpublished images. Unlike, published images, unpublished images may be combined on one form. In total, you’ll be submitting four forms and four sets of images. Capiche?

It’s very important to properly assign a “published” or “unpublished” status to your images. If you mistakenly register a published image as unpublished (or vice-versa), the registration will likely be invalidated should you go to court. The first thing that defense attorney’s will do in any copyright litigation is attempt to invalidate the registration by picking apart your application and publication status. Don’t get sloppy here!

Ongoing Registration of Images
This is where things get tricky. The safest way to make sure your images are always protected by copyright law is to register them before they leave your studio. That’s not practical in this world of Facebooking images the minute they’re shot. Instead, the more practical option is to register all of your published images every three months – remember that you have three months from the date of first publication to register your images and keep your protection intact.

Think about it, you’re not really worried about unpublished images since they’re not posted on the web where they can be copied and pasted by every Tom Dick and Harry. So instead lets focus our efforts on our published images. The key is to gather all of your published images every three months and submit them en masse to the copyright office. Plan on scheduling April 1st, July 1st, October 1st and January 1st as your copy-to-disk and fill-out-the-form days.

The Disclaimer
Hopefully, this post has cleared up many of your questions on registration. I make everything seem cut and dried, however I can assure that it’s not. Topics such as what constitutes publication and pretty much every other point I’ve raised can be argued and debated by experts (lawyers) with no hope of reaching a clear cut answer – until a judge gets involved. Copyright law is complicated and created as much by judges as by Congress. For more information on all details of registration and copyright, you may download the Basics PDF from the Copyright.gov website. (I can assure you that it will leave you scratching your head.)

In my next post, I’ll show you exactly how I gather my images and fill out the form. I’ve got a little system that I use that makes it pretty simple. I’ll give you a hint: I use Lightroom. I didn’t forget my special offer; it’s coming!

John Mireles

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About johnmireles

Photographer, writer, thinker, climber, outrigger canoeist, bad guitar player and even worse singer.
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8 Responses to Basics of Copyright Registration

  1. Greg says:

    “A public performance or display of a work does not of itself constitute publication.”

    http://www.copyright.gov/circs/circ01.pdf

    The display of your extremely limited grasp of law and legal matters should be tempered.

  2. johnmireles says:

    As I wrote in my post, many of the points that I brought up are not cut and dried and can be debated endlessly. Now, you’re correct to state that a performance or display of work may not constitute publication however when that display of work is displayed in a manner which may then be further distributed or reproduced, then it may be considered published.

    So a display of physical prints in a gallery may not be “published” because there’s no further distribution nor reproduction possible. However, take the same set of images and post them on a web gallery for viewing by a client, then the images are published because the images may be shared among a wider group of people than to whomever the link was first sent. Additionally, once you throw in the exchange of money, it all points to publication.

    I’ve done my homework on this issue. Even the Copyright office in one of its publications on the subject states that it’s up to the creator to decide if an image is published. Finally, here’s the full quote from Copyright law from which you pulled your quote:

    “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.”

    Note how it specifies the word “sale.” That’s the key for us as professionals when it comes to our galleries and disks. Others may choose to differ with my interpretation, however to state that I have an “extremely limited grasp of law and legal matters” is to reveal the true extent of one’s own grasp of such matters.

    John

    • Greg says:

      “to state that I have an “extremely limited grasp of law and legal matters” is to reveal the true extent of one’s own grasp of such matters. ”

      You are 100% correct in this statement. More so than you know.

      • johnmireles says:

        Well, instead of being condescending and withholding, why don’t you enlighten us with your vast knowledge of the copyright process? This blog is about sharing knowledge so if you have some, please share it. Otherwise, there’s plenty of other online venues for picking fights and being rude.

    • Scott Lightner says:

      John – Obviously current copyright law language leaves much margin for interpretation – especially with the shift of culture via new technology.
      Considering a posting to FB or a blog as published may make an assumption that the general public will distribute the images. This may be an assumption the Copyright office has not made:

      A further discussion of the definition of “publication” can be found in the legislative history of the 1976 Copyright Act. The legislative reports define “to the public” as distri­ bution to persons under no explicit or implicit restrictions with respect to disclosure of the contents. The reports state that the definition makes it clear that the sale of phonore­ cords constitutes publication of the underlying work, for example, the musical, dramatic, or literary work embodied in a phonorecord. The reports also state that it is clear that any form of dissemination in which the material object does not change hands, for example, performances or displays on television, is not a publication no matter how many people are exposed to the work. However, when copies or phono­ records are offered for sale or lease to a group of wholesalers, broadcasters, or motion picture theaters, publication does take place if the purpose is further distribution, public per­ formance, or public display.

      http://www.copyright.gov/circs/circ01.pdf#page=3
      (page 4, First paragraph)

      The “public” today can as easily copy a televised broadcast, as download and repost images. Gallery shows and performances can also easily be captured with portable recording devices today.

      The interpretation of the law may change from judge to judge. Is it possible there is already a supreme court case ruling which provides a precedent judgement on what constitutes an act of publishing today with regard to copyright law?

  3. Sunny Jewell says:

    Thanks for this article, John. I do have one question. If I register the published every quarter, is it ok, then, to register the unpublished later, say as a yearly group or at some other time? Or just don’t register the unpublished, then register the ever-how-much-older when they are actually published, but in their own quarterly group?

    Thanks, again, for making this easier,
    sj.

  4. johnmireles says:

    Sunny: My suggestion would be to register your unpublished work at the same time as your published work. That way if it’s later published, it’s covered by registration and you don’t have to keep track of it. You can also do it every six months or year if you prefer. It’s just whatever works best for you. Carolyn Wright, the self-styled “Photo Attorney” addressed the question of whether to reregister published images in her blog: http://www.photoattorney.com/?p=1117 By the way, she also states that photos posted to a website for online ordering are most likely considered published.

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