Song? Dance? Seltzer in the Pants?

What do I have to do to get you people to register your copyrights?!?! Look, I love you creative types, but I’m getting a dent in my head from the repeated headdesking caused by cases that would be as close to perfect as you can get, except that the work was not timely registered and thus are either essentially worth nothing or proving up the damages would be a nightmare.

I want to be able to help you and this firm will take smaller cases than many other firms, but I can’t take cases for a contingency fee where actual damages are the only option and those are the lost license fee for use on social media which you’ve either never actually licensed or you have for almost no money. Proving up the damages, even if possible, won’t be worth the time and effort.

However, if the work is timely registered then I have a much larger stick to wield on your behalf: statutory damages of between $750 and $30,000 (for non-willful infringement) plus a good shot at attorneys’ fees if the matter is litigated.

Timely registration isn’t that complicated. A registration is timely only when one of the following is true:

  1. the effective date of the registration is before the infringement starts; or
  2. for published work only, the effective date of the registration is within three calendar months of the first publication of the work, and that could very likely be the date you provided the work to your client rather than the date when your client used the work.

Thats it. Thats all. Those are the law’s only options. You’ve got to register your work and the registration has to fit either #1 or #2 for you to be able to have access to awards of statutory damages and the potential for winning attorneys’ fees and costs in litigation.

So how can you make those rules work for you? First, for any new work that is likely going to be published in the sense the Copyright Act uses the term (and how I mean it throughout this post, which includes work you’re going to provide to your client for their consideration and possible use, as well as work you offer for license on your own website or elsewhere) either register it as unpublished before doing anything with it, or, provide it to your client or post it on your stock site (etc.) and then register your work as published within that three-calendar-month window.

I prefer the second option for photographers for a bunch of reasons, some of which are very nit-picky technical legal ones that I’m not going to bore you with here. Mostly, I prefer the register-as-published option because, these days, almost everything posted anywhere is published. So, I suggest a photographer should, for everything created AND in any way released to the world in any one month, register it all (as published) on the last day of that month, and that way you don’t have to worry about missing the three-month window*. For best protection be sure to remove any images you know weren’t published and register those separately as unpublished at any time before you publish them. Mixing published and unpublished is like crossing the streams in Ghostbusters, that is, bad.

If you’re a photographer, you can do group published photo registrations online for one fee ($55). Following the once a month plan above, for a year that would be 12 x $55, or $660. Group published photo registrations are slightly more complicated to do but, after you have done it once, youll see it isn’t that bad and, best part for now, is that your first time you will be supervised by the Copyright Office itself as a part of its pilot program, so theyll help you through it.

If you are creating other non-photo works, like illustrations, you should not let the work out into the world at all and, instead, register your pile of works as a “collection of unpublished works” once a month, for the same fee (then you can let the work out). Sadly, there isn’t yet a simple group option for multiple published works as there is for photographs.

Now, before you start whining about that cost, let me point out, again, that the minimum statutory damages award for a single infringement is $750. The math is totally in your favor.

So please, register your work. I beg you. I’ll do anything to get you folks to register your work. Someone get me a new seltzer bottle (mine is an empty antique as you can see above) and I’ll prove it.

(The subject line of this post is a reference to Chuckles the Clown’s philosophy)


*It also helps you avoid another rule that for a group published photo registration the work must be published within the same calendar year so, if you do it on the last day of each month, you won’t screw that up.