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Published verses Unpublished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 For starters, the copyright office distinguishes images that are “published” verses those that are “unpublished.”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.
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!