Timing Matters

Today, I learned about two cases which each serves to highlight errors creatives are prone to make when it comes to their registrations.

The first was a case (opinion here, if you want to bother reading it) from Massachusetts, where the plaintiff was granted summary judgement on its claim of copyright infringement but, because it registered the work after the infringement started, it can’t get statutory damages.

The rule about no statutory damages available unless the work’s copyright is registered before the infringement is one of the few clear ones in copyright law. You can’t skirt it and, besides a very limited “safe harbor” period to register published work within three calendar months of its first publication, there are no exceptions. So, register your work as soon as you can, to make statutory damages (and attorneys’ fees) available as soon as possible.

The second case makes me twitchy because I know some photographers (especially) teach this wrongly. In that case, the plaintiff registered a pile of works as unpublished when it knew that some of them were published. Tonya Gisselberg of Seattle Copyright Watch explains it well on her blog and links to the opinion, but the short version is that a defendant may be able to void your registration for any of the knowingly published work (and remember that published in copyright law isn’t published like most people think).

I have been in workshops where pro photographers have advised “register everything as unpublished because that is cheaper and easier” but, if you aren’t careful to follow the rules, you could not only be wasting your time and money in the registration process, it is conceivable that a defendant who successfully breaks your registration could be awarded its attorneys’ fees. Yikes! You definitely do not want that to happen.

The lesson here is much like Star Trek’s matter/anti-matter, rule: do not mix.