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 In that case, the plaintiff registered a pile of works as unpublished when it knew that some of them were published.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I have been in workshops where pro photographers have advised “register everything as unpublished because that is cheaper and easier” but, if you aren’t careful to follow the rules, you could not only be wasting your time and money in the registration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.

Doing Your Part

In the very recent past I’ve had more than a couple of photographers contact me about possible infringement situations. That’s great… it’s what I do. My first question, as always, is “Is the image’s copyright registered?” For almost every one of those photographers, the answer has been “no.”

Sigh. That is so frustrating. It just kills me to have to tell someone that they are unlikely to be able to get much of anything if they go after the infringer; but, if the image’s copyright isn’t registered, that’s the likely scenario.

At the most basic level, your demand letter (assuming you start there) isn’t going to have as much punch if there is no registration. Why? Because you can’t get statutory damages for the infringement, nor can you get attorneys’ fees or costs, so the demand letter will be weaker because it will lack those sticks.

Also, the power of citing the registration number is a helpful factor in your opening position, before negotiations get under way. Without it, you have a very weak negotiation starting point which, combined with the unlikeliness of a good size settlement, isn’t going to help you. Frankly, it’s not likely you’re going to find an attorney willing to bother with your case unless you are willing to pay the lawyer’s time. A time-based arrangement with an attorney will probably eat up any money you might get from the infringement pretty quickly so you’re not going to want to take that path.

Also, if you ever want to file a case, well, you’re going to have to register the copyright before you can do that anyway. No registration at all means the door to the courthouse is essentially locked for you. While there are related claims that may get you in (and I am not going to try to start explaining that in this post), the infringement won’t do it unless you register the copyright before filing your complaint. You just have to do it–that’s your part in this.

Look, every attorney goes through at least 4 years of undergrad plus 3 years of law school plus taking at least one excruciating Bar exam. Some of us have a lot more education than that, plus experience (for example, I’ve been working in commercial photography since the last century and I did PhD coursework). There is also the constant learning on top of that to keep up with the Law. We (lawyers in general) do our part to try and be the best prepared advocates for our clients. In the case of those of us who do copyright-related work, especially for artists and not the big corporations, we’re in it for the love of art, artists, and the Law and we want to help. But we need your help to help you.

If you do nothing else, please register the copyrights to all your work. Start today and do it for everything you make going forward. Over time, you can register your older work, but at least add registration to your workflow today. Infringements happen all the time and for us to be able to really help you, you have to do your part. Register.