Bad Registration Advice

Recently, I was approached by a photographer about an infringement matter. It was a good-looking case, until I checked the registration. The work had been registered as unpublished, but it was admittedly published before being registered; in other words, it was knowingly registered wrongly. That makes a big “No, can’t take this on contingency” from me.

When I explained this to the photographer, the response was surprise if not full-on skepticism. Seems the photographer had been told, allegedly from several sources including at least one major national photographers’ organization, that one could register a work as unpublished if registered within 90 days of publication. 

Yikes. The amount of wrong there is worrisome.

Let me make this perfectly clear: one must never knowingly register a published work as unpublished. Ever. There is no way around it, short of lying, and lying is a very, very bad idea. Full stop. 

Registering under the wrong publication status is bad; but registering work you know was published as unpublished is a fast route to having the registration voided for that work. Now, if you are litigating and you get busted for the “error,” you will quite possibly (I’d say probably) end up paying the other side’s attorneys’ fees when you lose your case. Ouch.

Look, we pretty much all hate the published/unpublished thing—lawyers, artists, everyone. It’s an administrative hoop that is, in my opinion, arguably outdated and unnecessary. But, it is very much still the law. 

When a work is published, one must provide the US Copyright Office with additional information about that work in its registration application (date and place of first publication). That data is included in the certificate and USCO records. Registering the work as unpublished omits this information. That’s why it’s particularly bad.

So, where did this photographer’s misinformation come from? Hard to tell, but I suspect it was started by someone trying to get around certain limitations in order to register more works for less money. See, before the recent-ish changes in registration procedures, one could register a virtually unlimited number of unpublished photos in one “unpublished collection” registration. The limit was one of upload size, not number of works. However, published photos were limited to 750 per group registration (as well as other limiting factors, like the photos must be published in the same calendar year). In other words, it would cost more to register 1500 published photos than unpublished ones. 

This irked photographers. I know, I’ve been asked at talks I’ve given about copyright registration, back when those rules applied, “Can’t I just say the work is unpublished so I can do everything in one registration and save money? Who’s gonna know?” Of course, I pointed out the errors of that line of thinking, but I’m sure some may have errantly given it a try. Thing is, the USCO relies on you being honest so if you do misrepresent the work as unpublished, you will still get your certificate. But that doesn’t mean it will hold up in court. Anyhoo, once someone did it and got his* certificate, the info likely got shared and, boom, bad info gets out to the photo world.

Now, the rules are more equal. There is no more “unpublished collection” for photographs but rather Group Registration of Unpublished Photographs (GRUPH). That registration, like for published photos, is limited to 750. Like it or not. So, the incentive to misrepresent a work’s status is much less now. 

The 90 days thing, though, in the photographer’s response above? Well, that is extra rules-bolluxing. Contrary to popular thought, there is no 90-day anything in copyright registration for photographs. There is, however, the 3-calendar-month safe harbor for registering published photographs. It is NOT 90 days, but many people have wrongly said/written it as such. Remember, three months does not equal 90 days (hello, February) and you can get bitten if you get that wrong. Anyway, I think that safe harbor got mixed into the mess and we end up with this strange idea that there is a way around the publication status-related registration rules. 

You can fix bad registrations, but it is a process and it will cost you both USCO and your own attorney’s fees. Oh, and when the error is like what I’ve been talking about here, you’re almost surely going to get a new effective date, too (that can affect statutory damages for some cases). 

This stuff can be complicated. Remember, while your creative friends may think they know the rules, if you have any questions regarding your registrations, your best bet is to hire a copyright attorney for legal advice.

You Are the Cause of Your Own Suffering

I heard a dharma teacher speak those title words on a podcast this morning. A related Buddhist phrase is “Pain is inevitable; suffering is a choice.” In my spiritual practice, I think about this idea often. It is, roughly speaking, that bad things happen to us all the time and we can never protect ourselves against all of these bad things (not even most of them); however, how we react to the bad things in our lives is directly related to the suffering we feel.

I also think about this idea often in my other practice, my legal one. What does this have to do with the law and, more importantly, your business? Lots! 

For example, when you find an infringement of your copyrights, like your art on someone else’s website, that is painful. The infringer has violated your rights and it seems perfectly reasonable for you to feel angry and upset. Instead, as an attorney, I counsel quiet acceptance of the way things are. This isn’t flakiness, it’s wise legally. I mean, you can’t control the infringer’s behavior and the infringement has happened already: no matter how angry or hurt you get, you won’t change those facts. But if you get angry and strike out, you’ll definitely feel worse, not better. So, take a breath and, gather your thoughts… and your emotions. 

If you strike out at the infringer in anger (even righteous anger), that will make things worse. You might send an email that amounts to legal threats/extortion, or publicly shame someone and later find out you had the wrong “bad guy,” or lose a client because you embarrassed it. But even if none of that bad stuff happens, attacking like that will not make the infringement go away or get you made whole. Instead, you’ll just suffer more because you’ve behaved badly and you haven’t made the pain go away or changed the reality of the infringement. 

Playing the victim won’t help either. It won’t make the infringement stop, it won’t punish the infringer in any way, and it won’t get you paid (if that’s what you want). You’ll just feel worse. There is your suffering, brought on by your own choices.

Now, “quiet acceptance of the way things are” doesn’t mean “do nothing.” Instead, after you take that breath and gather your thoughts, gather evidence. Here’s a post I wrote on that. Even if you decide to do nothing now (one option), you’ll have the evidence if you change your mind (you have three years from when you discovered the infringement, usually, to file suit). After you get the evidence, think about what will make you feel better, feel whole now. Then, take the calm and rational steps to make that happen, like hire a lawyer to get you money, ask the infringer for a credit line and payment yourself, filing a DMCA Takedown, whatever.  

As for protection, you can’t stop determined infringers. You can let go of feeling guilty, like it’s your fault they infringed–it’s not– and feeling guilty is choosing to suffer. However, you can make it easier to get satisfaction after they do their bad deeds if you take the right steps like using watermarks (especially in the form of proper copyright notices), registering your copyrights, using good metadata in your files, and getting good evidence.

Things like infringement are going to happen to you. When they do, there is no reason for you to suffer.

Registration Needed, or Not?

Earlier this year, the Supreme Court clarified that a work’s copyright has to have been registered (or had registration refused, but let’s not go there for now) in order to bring a suit for copyright infringement. [1] No longer would applying for the registration be enough–you had to have that certificate in hand when you file suit. So there will likely be a ton of confusion when people start talking about the ruling that came down in Texas last week [2] in which the court ruled that a failure to register a work didn’t kill a copyright case.

Not to bury the lede: the Texas case was not an infringement case, technically; it was a case with a claim for improper removal of the owner’s copyright management information (CMI) under Section 1202. Hence the different result.

In the ruling, the Texas court points out that, although Section 1202(b) includes language about how the removal must be connected to an infringement, it is not a claim for infringement. The court then explains that the plain language of section 1202 does not indicate that the registration requirement under Section 411 applies and that, furthermore, a claim under 1202 is not an infringement claim but rather a claim for removal or alteration of CMI. While there is an infringement underlying the removal of CMI, the claim under 1202 is about the scienter (a fancy legal word for “knowledge”) of the infringement, not the infringement itself. The court then explains (citing the same SCOTUS opinion mentioned above):

Although a DMCA claim requires the defendant to know of potential infringement, such requirement does not necessitate registration because infringement can occur absent registration. A copyright owner’s exclusive rights vest at the time of the creation of the work, and infringement occurs any time those rights are violated, even if registration has not occurred.

This is going to confuse lots of non-lawyers (and probably more than a few lawyers). Let me try to explain, roughly. Infringement happens whether or not a work is registered. That is, the copyright in a work comes into creation the moment the work is made (“fixed in a tangible medium”). At that moment, the creator (usually) owns the copyright in that work and has the rights in and to that work. When that work is copied illicitly, the copyright is infringed. However, an artist whose copyright is infringed cannot file suit for that infringement unless that work’s copyright is registered before the case is filed. The registration is the key that unlocks the court’s door, so to speak, for an infringement claim. Registration gives an artist standing (legalese for the right to bring a specific claim to court). So, the artist has to register the work, even after the infringement, to get to sue for that infringement[3]. However, since CMI removal (or the addition of false CMI, under subsection a) is not a claim for infringement, the artist does not need to have registered the copyright in the work to have standing for the CMI-related claim.

Now, standing is claim-specific, so just because one has standing for a CMI related claim under 1202, one doesn’t get to throw in an infringement claim. No sneaking around the rules–each claim needs its own key to unlock its own door, to continue the metaphor. If you filed a complaint with a 1202 claim and an infringement claim, without a registration, the infringement claim would get dismissed for lack of standing but the 1202 claim would stay. Got it?

So, the skinny is that you still need a registration to sue for infringement, but you can bring a claim related to your CMI without registration. While the statutory damages are from $2500-$25,000 for each 1202 claim, less than the max $30,000 for non willful or $150,000 for willful infringement (assuming the registration was timely, i.e., before the infringement or within 3 months of the work’s first publication), it still isn’t nothing. Proving a CMI claim is more complicated because of that scienter requirement I mentioned earlier, but it’s worth considering the next time you find your unregistered work infringed. But, as mentioned, that’s only if you have visible CMI on or immediately adjacent to your work in the first place, as I explain here.

This stuff is complicated. Please seek personal legal advice before proceeding on any of these claims, including sending that angry email you may really want to send when you find your work being used without your consent. You can run any infringement/CMI claim by me for free review by using the form here.
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[1] Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).
[2] Diamondback Industries, Inc. v. Repeat Precision, LLC, et al., Case No. 4:18-cv-902A (ND Texas 2019), available at https://www.courtlistener.com/recap/gov.uscourts.txnd.309307/gov.uscourts.txnd.309307.83.0.pdf
[3] Unless you register the work (a) within three months of its first publication anywhere by you, or (b) before the infringement started, you won’t be able to get statutory damages or attorney’s fees, but you will still be able to file suit.

Why Not?

I recently noticed that I have a lot of non-US clients. Canadians, Germans, Scots, Australia… they’re from all over, really. Percentage-wise, it’s a very surprisingly large chunk of my business. While I’m thrilled for the work and that these people are protecting their rights here in the USA, it does make me wonder why I don’t have more American clients. 

All of these non-American clients have registered their copyrights properly here in the USA (some with English not being their first language) and pursue infringers with the assistance of their own personal attorney. They track their own work online and send me cases they find. Despite being overseas (or at least in Canada), I have filed suit for some of them, even. Those clients couldn’t do that without the understanding that at some point in the process they would have to make the trip here to the USA, on their own dime, er, pence/Euro (whatever), to appear in court. For some of these clients, that would be a big hit financially, but they believe in their rights strongly enough to do it and, of course, it has paid off for them.

So, the question I find myself asking is why don’t American artists take the simple steps to register their works regularly and do the same? What is it about the process that compels Americans either to not bother registering at all (and far too many of you fall into that category) or to choose to use a “service” that compels the artists to use the company’s “infringement protection” process where the company will collect a far greater percentage of any settlement than an actual, personal attorney. Oh, and the settlements are often for far less than an attorney will negotiate, for bonus points.  

I know of some very well respected artists who make beautiful work that is ripped off all the time, but who tell me they can’t be bothered with registering much less going after the bastards. At the same time, they complain about how often they find their work being used… all over, by companies large and small. I tell them “Register it now and future infringements will have statutory damages available!”

They nod, say they know they ought to, but then do nothing.

The logic escapes me. 

It Adds Up

One of the big arguments forwarded for the CASE Act (aka “small claims”) is that it will permit copyright owners to pursue small infringements. I’m here to tell you that anyone can do that already, even without that possible new law. Also, those small claims add up. Here’s just one example…

But first, the big disclaimer: past results are not predictive of future outcomes. I mean, each case is its own thing and just because I got $X for a client doesn’t mean I will get the same for you. There are no guarantees. Thank you for playing.

Anyhoo….I have a client I’ll call “Q” because I don’t want any future infringers to use the following against this person. This client doesn’t bring me a ton of cases but there has been a fairly steady stream: 20-something of them since 2017 and all were online uses of Q’s photos. Also, like with any client, not all of Q’s cases settle although many do. To this point, I have not litigated any of Q’s claims. In part, this is because Q is understandably litigation-averse, and that is fine by me. I will never be the kind of lawyer who says “FILE! File everything and often!” As I’ve said before, filing should be a last resort, not an opening move, and sometimes filing isn’t the right choice for all sorts of reasons; so, I’m perfectly okay with Q’s choice not to file every time a settlement isn’t reached.

Recently, Q let me know that we had topped $100,000 in settlements and that it had made a difference in Q’s financial life. I was thrilled! This is exactly why I do what I do–to get artists the money they are, in my opinion, owed.

Now, any of you doing the math at home can ballpark-estimate the average settlement amount, even though you’ll have to guess at precisely how many cases settled. Individually, in fact, most of the settlements were in the mid-ish 4-figures. There were a couple of 5-figure ones here and there, but those were rarer. Together, though, they make a healthy total, even after paying my contingency-based fees. I’m happy to have helped protect Q’s rights and increase Q’s bottom line.

Q’s total was made possible because Q registers the copyrights in Q’s photos. Those timely registrations mean that Q can get statutory damages in court (and possibly attorneys fees) when those copyrights are infringed; infringers know this or learn it from me and, when they accept that reality, they often choose to settle. Since most of these cases were small business website use, the value of each infringement is not huge (no, you almost assuredly will not get $30K, much less $150K, in court for a single small website use of a photo–yes possible but let’s be real…), so the individual settlement numbers are not large, but each is valuable enough for me to do what I can for Q. Moreover, as the title of this post says, they do add up.

Now, for anyone who says this is some sort of tainted money, you’re wrong. Getting paid by someone who has stolen your art, disregarding your right to consent (or not) to its use, is not wrong or dirty. Wrongdoers need to make amends for their actions and, until we outlaw having to pay for things, money is the best way to do that. Guilting the artist who gets money from infringers is like guilting any victim–don’t go there. This is about correcting the wrongs of the infringers–infringers who have seriously damaged so many creative businesses. I have clients who have told me that the money they make from pursuing infringers has made up for all their lost license sales, and more. This is a good thing.

Anyway, like I said in the disclaimer, there are no guarantees; however, copyright registration does open the serious possibility of additional income to any creative professional, without expensive litigation. I know I’m not the only attorney who takes these “small matters” on contingency, particularly as long as the work is timely registered. You can find a good attorney who, like me, cares about her/his/their clients and who wants to help. Don’t wait for the CASE Act to pass when you can register your work now and infringements that start after the effective date will have the possibility of statutory damages; do that and your business will thank you.

SCOTUS Clarifies Two Big Issues

This morning, the US Supreme Court issued two opinions on copyright issues. Shockingly, both were unanimous decisions, too.

First, in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, et al., the court ruled that in order to file suit, the owner of a U.S.-created work must have actually registered the copyright, not just applied for registration. This clarified the rule for everyone since there had been a circuit-split on it before, meaning in some places you could file suit with only an application to register, but not others. So now, if you file suit without an actual registration in hand, not just a case number, your case will be dismissed.

To be accurate, the court also said that a copyright owner whose application to register was refused may also file suit, but there are additional steps in that situation and, frankly, I don’t want to get into that side of things in this post. What is important to know is that, once again, the court has made it clear that the importance of registration can’t be over-emphasized.

The other case was Rimini Street, Inc., et al. v Oracle USA, Inc. et al. At issue in that case was what qualify as costs under the rule that says that “full costs” can be awarded to a prevailing party. Costs are different from “attorneys’ fees” first of all, and those fees weren’t the issue here. Rather, here, it was what specific litigation costs are included under Section 505.

Oracle had been awarded millions of dollars in costs like expert witnesses and e-discovery, and jury consultants. However, those categories of costs aren’t included under a different statute that lists categories of costs recoverable generally (not just for copyright cases). Oracle tried to argue that those costs were legitimately awarded under Section 505, but the court held that the only costs that can be awarded in copyright cases are those in the categories listed in that other statute–basically saying that 505 was limited by that other statute.

This means that when you are considering filing suit, you shouldn’t expect to recover all your costs in litigating that case, no matter how much of a winner your case is. You can recover things like filing fees and costs for copying transcripts, but many of the common costs in litigation today are simply not recoverable under the current statutes. Hopefully congress with make a change to that statute to reflect the realities of litigating in the 21st century, but until that happens, litigating parties will expend more money out of their own pockets.

For both of these cases, the importance of registration still reigns supreme: you can’t get any costs unless your registration is timely and you can’t even get into court unless you have a registration. Since getting a registration takes time (months!), you need to register well before the three year statute of limitations runs out (see FN1 here). Why not register asap after creation to make sure neither issue bites you in the butt?

Showing 2018 the Door

As we show 2018 the door, and just like we did last year, now is the time to take a look at the year that was and think about the year yet to be.

In 2018, many of us were still reasonably pre-occupied by the lunacy in Washington, DC. It’s been a tough year for anyone who respects the law and has any sense of human decency. Still, while we can’t give any of that bad stuff a pass, we also need to focus on our own lives and, crass as it may sound, our businesses.

With that in mind, here is a list of some things to do, to stop doing, and at the very least to consider as you gear up for 2019.

  • Register your copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. As I mentioned last year, while there are services for this, I do not recommend using any of them because they might not be anything more than maybe adequate and quite possibly deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration  is not that hard anyway, particularly for visual artists and even more so for still photographers.
    • Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights.
  • Pursue infringements. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they simply do add up. Let’s say you have small value infringements but a bunch of those– worth $2500 average settlement, just for sake of argument. 10 of those over the year is $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K.  How about 20 cases and more than $32K in your bank? Why not see of they are worth getting a lawyer to pursue (I review cases for free)?
    • Relatedly, consider using this tool instead of some much more costly “service” to find those infringements.
  • Make the time to make art for yourself. Whatever your medium/media, make making your own work, for you, a priority. Yes, you can probably use it later in your portfolio (because work made for yourself usually is your best work, if you let yourself really be free with it) but mostly, you need to give yourself total permission to explore, play, make utter crap, screw up, take risks, and re-find the joy in your work.
    • Relatedly, (re)learn how to fail. It is through failure that we achieve the abilities to be successful.
  • Get off social media, even for (most of) your marketing. The Terms of Use on pretty much all those services really do suck for creative pros, and all they do is make promises they can’t deliver.  And they are a huge time suck. And many of the companies have actively participated in bringing us the political hell we are now in. So stop facilitating their shitty behavior and quit using them. Besides, when it comes to your marketing, it’s virtually impossible to get seen by the right people by using social media, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (make lists of the clients you want to work with!) and get back to the basics in your marketing plan. Back off the electronic crap and consider investing in really good print mailers. Also, try to interact in real life with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
    • Importantly, instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on social media, if you insist on using social media.
  • Use a watermark on visual art. Preferably, it should be in the form of a proper copyright notice (that is © year of first publication Name, for example: ©2018 Leslie Burns) but if not that then the copyright owner’s name (not your URL). For non-visual art, include the notice somehow like in the audio file for a podcast or both on the doc and in its metadata). I’ve already written about the wizbangery that is the CMI-related part of the DMCA–don’t ignore those protections!
    • Also, if you don’t know what metadata is or how to edit it for the digital forms of your works, learn now. Everything digital has metadata and that metadata can be crucial evidence in a lawsuit (it may also be CMI).
  • Make plans, including for death. Life changes, including the ultimate one, will affect your business and assets. That is basic reality. I lost my own father this year and you can trust me, having things properly organized and documented before the fact is a huge help in the grieving process. Take the time to look at where you are and what might happen, and plan accordingly (see my previous article on this, and this one on marriage, too).
  • Most of all, make time to be with those you love. Be fully present, and not just during the holidays. Also give to those who are worse off. Time and caring are things we can’t bank or buy; being present with those whom we love and who love us, and giving to others who are struggling somehow (and there are plenty of those these days) will do more for you than having another thing to own.

Here’s hoping 2019 is a happy, healthy, and prosperous year for us all.

New Rules! (for photo © registrations) UPDATED

Back in December of 2016, the US Copyright Office (USCO) proposed new rules for group photo registrations, including significant changes to registering a pile of unpublished photos. I wrote about the proposed rules then. Now, the final rules are out and they mostly match up with the proposed ones, but not completely.

The new rules make two categories of group photo registrations (leaving out databases, which are a different kettle of fish and most individual artists will not have to address those, so I’m skipping them here). The two categories are GRPPH for Group (of) Published Photographs and GRUPH for Group (of) Unpublished Photographs. Now, most of the rules are the same for both, making life a little easier as you will have to learn, essentially, one system.

First, though, you’ll notice that you still have to keep published and unpublished separated. The USCO looked at the issue and they simply can’t change that as it is not a “rule” but rather part of the law itself. The USCO has the authority to create and modify rules, but it can’t change the underlying law or create rules that conflict with those laws. It does sound like they think the split should be dropped, though, so maybe that will come sometime in the not terribly distant future?

Oh, and about the unpublished photographs… you will no longer be able to do the unlimited number of photos as a collection option. It is GRUPH only from here out.

Anyway, the new rules… first, the commonalities. These are the rules for both groups:

  • must have a title for the whole group
  • must have titles for each photograph in the group (can be just the file names, but with character restrictions)
  • limit of 750 photographs per registration
  • all photos must have the same author[1]
  • must register online–no paper registrations will be accepted
  • must pay the $55 fee
  • must submit digital deposit copies (jpeg, gif, tiff only), preferably in an uploaded .zip file containing all the photographs (that must be <500 megabytes total[2]);[3]
  • must submit a separate document that lists the photos in a very specific manner (more on that below) that should be included in the .zip file.

For published photographs, the pilot program is ending with these new rules. If you’ve been a part of the pilot program, the USCO should be contacting you about the changes. As for the registration differences, published photos have these additional rules: they all must be first published within the same calendar year (i.e., 2015 or 2018, etc.), same as the current rule; but, and this is new, they do not have to have been first published in the same country. Also, you will need the date of first publication for each photograph.

Now, about that list document… this is going to be a bit of extra work, but it really will be helpful in the case of an infringement as all the information about the deposit copies will be easily accessible. For this document, which the USCO says should be either xls (an Excel file) or a pdf, there are nitpicky rules. I suggest making a template and sticking to it.

First, the document itself must be named in a very specific manner: the title of the group plus the case number assigned to the application by the electronic registration system. Yes, that means you can’t name the document until after you have created the application online and get a case number, but you can still prep the document (that will be uploaded with the deposit copies) and have it ready, just add the case number to the title. An example for a group registration of unpublished photos that Photo Betty is making from her trip to Hawaii might be Group Unpublished Hawaii Photographs Case Number 123456789.xls. Or, for published photographs from the same trip, Group Published Hawaii Photographs Case Number 987654321.xls.[4]

The contents of the document need to be, in order:

  • sequential numbering (i.e., 1, 2, 3…)
  • title of the photograph (this may be the same as the file name)
  • file name of the photograph (no characters other than letters, numbers, and spaces).

So, for example, the contents of the document for unpublished photos might look something like[5]:

  1. title: Maui at Dusk 1 file: Maui1.jpg
  2. title: Maui at Dusk 2 file: Maui2.jpg
  3. (etc.)

If the photos are published, then you add the date of first publication. So, the example above, if Betty published them on her stock photo site on January 15, 2018, would be:

  1. title: Maui at Dusk 1 file: Maui1.jpg pub. date: 1/15/2018
  2. title: Maui at Dusk 2 file: Maui2.jpg pub. date: 1/15/2018
  3. (etc.)

That’s it and, really, it’s not that terrible.

More importantly, the rules specifically state that photographs registered as a part of one of these groups will each be individually covered by the registration. That is a very big deal. That eliminates one of the biggest arguments defendants make–that is that any one photograph is only a tiny part of the whole registration and so the damages must be less or, even, that fair use applies. Nope, now it will be clear that each photograph in the group gets the full measure of damages and is fully protected as its own self (not a part of a greater whole). Huge benefit there, especially for unpublished photos where this has been a particular problem.

These new rules go into effect on February 20, 2018. For the detailed information, go here (pdf).

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UPDATE: The USCO has come out with help pages that include links to templates (Excel) for making the lists. Go here for unpublished and here for published.

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[1] “Author” does not necessarily mean “photographer” although it can. If you are an individual photographer then you are the author of your photos. Easy-peasy. However, for studios with multiple photographers and other employers of photographers, the employer is the author of all the work, even if created by multiple photographers.

[2] The photos may be compressed to fit the file size requirement.

[3] You can send flash drives or DVDs or similar instead, but it’s really easier (and much faster to get your certificate) to upload the files.

[4] While the rules do not specifically say you must say “group” in the title, it has been preferred that one do that and I suspect that preference will continue. It won’t hurt to use that format so I suggest sticking to it, at least for now.

[5] The new rules state that the information I note must be included, as I have it here, but it doesn’t say what the preferred format is. This is a best guess for how they want it from the description in the rule. I expect the USCO will clarify in the instructions on their website soon. For example, maybe the Excel sheet can have the words “title” and “file name” (and “pub date”) in the column headers rather than in the text.

Copyright Small Claims: A Bad Solution to a Non-Problem

Many of you may have heard about the small claims copyright system that is being encouraged by several organizations. Many of those groups are artists groups and, while they have very good intentions, the idea of a small claims system for copyright is, in my opinion, a very bad one. It is a fix to a problem that does not exist. And, in exchange, artists are going to lose rights and remedies they should not give up.

Here’s the underlying argument that proponents of a Copyright Small Claims system share, over and over again: litigating a copyright suit costs a plaintiff at least tens of thousands if not over a hundred thousand dollars.

That argument is not correct in so many ways. Its a scare tactic and too many artists groups are buying into it. Allow me to explain the errors.

First, assuming that a case is litigated all the way through trial and judgment is an unfair metric for the average cost. Why? Because according to the Federal Courts own statistics (the most recent ones I found were for a 12-month period ending March 31, 2016), only .07% of all copyright cases filed are terminated (settled or a judgment is entered) during or after trial. To put that into more concrete terms, in that 12 months there were 4836 copyright cases filed in the USA; of those, only 32 were terminated either at trial (settlement after trial started but before judgment entered) or at the end of trial (judgment entered). In the 12 months ending March 31, 2015, it was 26 out of 4253 filed (.06%).

In other words, the chances that a case is fully litigated are incredibly slim! In fact, in the 2016 statistics, 37% of the filed cases are terminated before there is any court action and another 54% are terminated before the pre-trial phase (that is, by the close of discovery). So, 91% of copyright cases get settled by the close of discovery and virtually all the remaining cases settle before trial.

What does this mean? It means the cases that get fully litigated are really hard cases. Parties don’t take a case to trial unless either someone refuses to accept that s/he/it is sitting on a loser (rare) or there is a real question of how the matter might turn out (almost always). When there is a real question especially, then there are lots of experts and more extensive discovery overall and, well, of course the costs are going to be large!

But, going back to my original point, that just doesnt happen hardly at all. Instead, most parties are smart enough (or at least their lawyers are) to settle and to settle pretty early in the process. Usually there have already been pre-litigation settlement negotiations of some sort so when a suit is actually filed, the parties generally know that this is serious now and get their shit together and work it out.

Often, this just happens on its own. In my own experience, I’ve seen it happen over and over–a case gets filed after months of trying to get the defendant to settle, the defendant (finally) gets a lawyer, the lawyer wisely advises Settle, now! and we work it out. And we should, frankly. Most copyright cases are pretty clear cut and most of them should settle before suit is even filed but, if not, then shortly after.

When the parties don’t settle on their own, though, the federal courts have put in mandatory Alternative Dispute Resolution (ADR) procedures into the litigation process. These processes save the court time and money and it saves them both for the parties, too. For example, here in the Southern District of California, we have a Early Neutral Evaluation (ENE) system that means no later than 45 days after the defendant(s) file its answer(s), the parties meet with the Judge Magistrate to look at the case and try to work it out. Often the case will settle at the ENE and, even when it doesn’t, cases usually settle shortly after. This all happens before you get into discovery (or it has barely started in some cases) and so costs are very limited.

The second major error in the scary math is that proponents of Small Claims don’t mention that, overwhelmingly, plaintiffs win copyright suits that go to trial. The latest statistics I saw on that (2009) put it at over 80%. When you win a copyright suit, you may be awarded your attorneys’ fees and costs (assuming you have registered your copyright before the infringement). While that award isn’t guaranteed, courts tend to make that award when it is a smaller plaintiff (like an individual artist) bringing suit, particularly when there is not a really unusual legal question at issue and/or the infringer is a big company that should know better. So, if you go through trial you have a very good shot at winning and, if you do win, you have a shot at having much of the out-of-pocket reimbursed. If your attorney is working on a contingency-fee-basis, you haven’t even been paying her yet anyway (just paying costs, like filing fees, etc.).

Okay, to recap, filing and litigating a copyright suit usually does not cost a terrifying pile of money. It is rare when it does and most of those suits are complex cases (and, by the way, often ones with large corporate plaintiffs like a movie studio). Small artists don’t need a system to reduce those costs because it is unlikely any small artist will get hit with them by filing an action[1].

What do small artists give up if they use the proposed Small Claims system? They give up their right to a jury trial (very bad thing), appeals are very limited, and most disturbingly, the system would limit the amount of money they can win–in fact, the maximum is cut in half (again, assuming the work is properly and timely registered). That depression in awards will affect those who opt out of the Small Claims system, too, even though the rulings of the tribunals would not be precedential. Artists would be giving up way too much for a protection they don’t even need!

The final argument made for a Small Claims system is that attorneys won’t take on small matters on contingency. That is just untrue. Some attorneys might not, but I know plenty who do, including me. In fact, that was a big part of my mission in becoming an attorney: to serve artists. Sure I can’t take every case, but I take a lot of very small ones. If the work is timely registered and the defendant looks solvent, there is a good chance I’ll take the case.

So, rather than give up your rights, use them to your advantage! Register your works, find an attorney who will work with you (it doesnt have to be me–I can recommend others, too), and go after infringers.

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[1] Before you even go to the Monkey Selfie case and the photographer being bankrupted by it: the photographer did NOT file that suit–he has been the defendant in a suit filed by PETA.

Registration? Application? What’s the deal?

Recently, there’s been a lot of discussion amongst us copyright law nerds about a circuit split on the requirement written in the statute that says you have to register the copyright before filing suit. The question is: what does “registration” mean in that statute? Seems obvious but, in law, we’re quite persnickety about word meaning so this is a big deal for us. I bet already some of you are fading out, thinking that this has little to do with you and your creative business. But it does! The good news is, you don’t need to know all the gruesome technical legal details.

Here is what you do need to know: if you want to sue someone for copyright infringement, you have to have registered the copyright before you file the lawsuit and the easiest way to make sure you’ve done that, no matter how they define it, is to register all yourworks as soon as possible after their creation. If you do that, then the complex legal question causing the circuit split won’t apply to you.

If you are one those who simplymustknow the details (and, if not, skip to the last paragraph), here’s the legal question: is applying for registration enough to mean “registered” or do you have to have the certificate in your hot little hands, before filing suit? We lawyer-types often call these two approaches application and registration, respectively. A couple of circuits have said that applying is enough to keep your lawsuit from being dismissed and a couple of others have said that you have to have the certificate.

So what? Well, thedifference means that, for example, if you file suit in California (9th Circuit), the courtswillsayif you’ve applied for your registration, you’re good to go; but, if you file the factuallyidentical* suit in Florida (11th Circuit) they will say you have to have the completed registration or your suit will be dismissed. So, you may be thinking, if you’ve only filed the application, you should just sue in one of the circuits that says that’s enough; but there is another part of the law that limits where you can file your suit, so that won’t work. That’s why I have an asterisk next to identicalabove, because one of the facts would bewhere the defendant is and if the defendant is only in Florida you can’t sue ’em in California.

Anyway, when there is a split like this, where some circuits say X and others say Y about the same statute, it falls on someone to appeal to the Supreme Court to get an answer. This means having a partywilling to do that (it’s not cheap) and then the court agreeing to review the case (which it probably would–SCOTUS likes to resolve circuit splits, usually). In other words, it’s not going to happen tomorrow so, for now, we have to live with the split.

Like I said at the beginning of this post, you can avoid all of this mess if you take the time to register your copyrights in your works as soon as you possibly can, after creation. That way you’ll make it impossible for the other side to bring up the application/registration question at all.