Month: November 2025

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Timeliness

I recently had a client bring me a lovely case with multiple images infringed. Nice and clean with registered copyrights and everything. An almost perfect case…

…until I looked at the Effective Date of the registration and the source code of the online use. Sadly, the use started mere days before the Effective Date and so the registration was not timely. While the client could still get actual damages (and infringer’s profits if any), that would be a low number based on the client’s provable license fee rate; so it made the case not something I could take on a contingency-fee basis. Bummer!

Registration is wonderful for protecting your work and adding to your recovery for an infringement, but its timeliness is a big, hard line to those benefits. Sadly, lots of people misunderstand timeliness. I hope this post helps clear up some of the misconceptions.

When you register a copyright (or a group), the registration will be issued with an Effective Date[1]. That date is the magic number—the key. For any infringement that actually starts after that date, you can get statutory damages and (maybe) attorney’s fees. These are called “enhanced remedies,” by the way. Statutory damages go from $750 to $30,000 for non-willful infringement, and up to $150,000 for willful. That’s a lot of room to negotiate a decent pre-suit settlement or, if you have to litigate, to get a valuable award. 

But that date is, like I said, a hard line. There is no wiggle room, outside of one exception I’ll explain in a second. So, if your Effective Date is July 1, 2024 and the infringement actually started on July 2, 2024, cool! But if the infringement actually started on June 30, 2024, the registration is not timely and you can’t get those enhanced remedies. 

Why do I keep saying actually, in italics? Because the date at issue is not when you find the infringement but rather the date the infringer began violating your rights—copying, displaying, etc., whether you knew it or not yet. If your Effective Date is July 1, 2024 and you found the infringement on December 1, 2024, that doesn’t make the registration timely; you need to find out when the infringement started to know if your registration is timely.

Now, about that one exception I mentioned earlier, this is something people screw up often so, pay attention. If you register your copyright in a work within three calendar months from the date of that work’s first publication, the law works some magic and you can get enhanced remedies for any infringement that started after that first publication date. Congress did this to try to fix the hole where a work is made and quickly published and quickly ripped off, before you get it registered. It’s a solid fix, IF you register your work in time. 

First publication is a technical, legal thing, for added crazy here. Publication has a nebulous definition in copyright law—it doesn’t always match with what any normal human would think of as publication. If you offer the work for sale or licensing, it is published on the date you do that, even if the work doesn’t get seen by anyone until later! So, for example, if you shoot for a client, the date of first publication will be the date your deliver the work to the client (digitally, hard copies, whatever) even if they don’t run the work until later. If you shoot for yourself, then a month later post the work on your website and offer it for stock licensing, the date you post it will be its first publication. BUT, if you make a work and post it on, say, your blog without explicitly offering it for licensing, then it is (likely) NOT published. 

I know, crazy, right? The easy fix is to always include a line about your work being available for licensing, even on your blog or Instagram or whatever. Then, boom, it’s published and you have a date for that. 

To best protect your work, do a group published[2] photographs registration every year on March 31 (for works first published from Jan 1–Mar 31), June 30 (Apr 1 – June 30), September 30 (Jul 1 – Sept 30), December 31 (Oct 1–Dec 31) of each year. That way, ALL your published photos for the year will be timely registered, no matter what. Any infringement of those photos will be eligible for enhanced remedies. Yay!

Then, when you contact any copyright lawyer (like me) with a potential infringement matter, we will be much more likely to be able to help you on a contingency fee (meaning you pay no fees unless we recover something for you).

[1] This date is usually the date you submit the application online, by the way. Even if you don’t get the certificate until much later, the Effective Date will almost always be the application date.

[2] Group Published Photographs registrations require that the works be first published within the same calendar year—this schedule takes that into consideration. See https://copyright.gov/circs/circ42.pdf.

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Holding Our Breaths

A lot of businesses are finding things slow lately. This isn’t surprising, considering the political situation. When you have a democracy crumbling with a cognitively challenged tyrant at its reins, it’s pretty understandable that business would slow.

We humans generally crave stability and security…or at least the illusion of them. When we don’t feel those conditions, many of us hold our breaths hoping to force them into being. It’s as if somehow controlling our breath will help us to control our surroundings. 

Emotionally, I get it, but it’s not very logical. Think about it: when you hold your breath, literally, what can you do? Not much and not for very long. So, when we hold our breaths, either literally or metaphorically, we don’t do anything else—including buying things or marketing our businesses or creating, etc.

When things feel overwhelming, as they do these days, many people hold their breaths and, essentially, shut down. It’s super normal. 

Pema Chodron, the brilliant Buddhist nun, has written extensively on leaning into uncomfortable feelings, of sitting with them, and of the illusion of control. Control, particularly of outside things, is an illusion. We actually do better by letting go of trying to control things over which we have no control; especially things like other people, or the political situation[1].

Part of letting go is feeling the scary feelings—of letting yourself know it’s okay to feel scared, or worried, or unsure. But, and here’s trick number 1, try to do that with a little separation: instead of saying “I’m scared” say “There is some fear arising in me.” Change “I’m angry” to “Anger is arising.” Using the passive voice may piss off English teachers and legal writing professors, but it’s a great way to be less overwhelmed by whatever is going on inside you at any moment. 

It also encourages curiosity about whatever is going on. “Pain is arising” can lead to “Is it sharp or dull? Where does it seem to be originating? Is it constant or does it kind of come and go?” The more we ask questions about whatever is sucking in the moment, the less of an onerous bugaboo it is. 

Most of us who have been in business for a bit will likely recognize that things have been slow before. It happens. Sometimes we can do everything right, and it’s slow. Sometimes a pandemic hits, or an Orange Monster gets power, and it’s like everything work-wise stops. Scary? Infuriating? Frustrating? Sure! But also impermanent. Whatever is going on with your business will change, even if you do nothing.

We can, in all of that, let go of trying to control the uncontrollable and, instead, simply do our work. Make art. Market your business. Make connections with other humans. Rinse. Repeat. In doing the mundane work, and especially by breathing through it all, we become more fearless. And, before you know it, without holding our breath, things will change. 

[1] Okay, before you get all in my grill about that last bit, we can only control what we do in regards to the political situation. We can’t make fascists stop being fascists, for example, but we can refuse to enable them by not shopping at stores that support the fascists and by voting.

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