 Mark Feldstein |
Copyright for the Disinterested Over the past several months, I've noticed an increasing number of people expressing concerns about copyright registration in the U.S., what registration entails, and whether they need to do anything else to protect their right. So, for the copyright disinterested or interested, here's a short version of what you need to know. Copyrights and patents are federally protected rights set forth in Article I Section 8, Clause 8 of the U.S. Constitution. They protect the rights of inventors and artists AND provide a benefit to the public viewing those types of works. Since it's a federally created and protected right, federal jurisdiction over copyright infringement stems from the Copyright Act itself, 17 U.S.C. Section 101, and related sections. Yes, the work is protected when it's created or "fixed in any tangible, reproducible means of expression". BUT if you ever intend to seek damages for infringement, then the work must be REGISTERED for a number of reasons. To file an infringement action in the U.S. District Court, the copyright MUST be registered 28 U.S.C., Sec. 1338 because the copyright law 17 U.S.C. Sec. 411(b)(2) and Sec. 412 requires a valid registration to allow enforcement in court. Federal trial courts (e.g. the U.S. District Court) are the only courts with subject matter jurisdiction to hear copyright claims. 28 U.S.C. Sec. 1338. At the time of filing an infringement action, you must file a copy of the registration or the court will not have subject matter jurisdiction and the case may be dismissed for that reason alone. There are a few exceptions to that rule, such as registration is pending, but not many exceptions. Best be safe than sorry. Registration also creates a rebuttable presumption in favor of the validity of the registered copyright, 17 U.S.C. Section 410. That in turn leaves it up to defendants in infringement actions to rebut if they choose to do so, although in many instances, such rebuttals are often perceived by courts as frivolous. And, timely registration must be sought from the copyright office within 3 months of creating the image, 17 U.S.C. Sec. 411(b)(2) and Sec. 412(2). Registration can be in batches, (see form VA at copyright.gov, and registration may be pending (received by the copyright office but not processed yet) for a case to be allowed to proceed in district court, but at some point (which is up to the district judge assigned the case) if you don't show the registration you get booted out. And, BTW, if a registration is somehow defective, that doesn't necessarily undermine your rights to protect your images or cause you to be legally prejudiced. See Universal City Studios Productions, LLLP v. Hogan, Case No 06 CV-545 W (WMC) Slip Op at Page 3-4, (Southern District of California 2006) and Urantia Found v. Maaherra, 114 F.3d 955, 963 (9th Cir. 1997) as cited in Hogan, above. Okie dokie? Take it light. Mark
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Sharon Day |
Hi Mark, thanks for the explanation. While we're on the subject how large a file is required when you register your photos? Thanks again :).
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Mark Feldstein |
Hi Sharon: Good question. According to the recent Copyright office regulations, images should be as follows: Size: Photographic transparencies must be at least 35mm in size and, if 3 × 3" or less, must be fixed in cardboard, plastic, or similar mounts; transparencies larger than 3 × 3" should be mounted. All types of identifying material other than photographic transparencies must be not less than 3 × 3" and not more than 9 × 12", but preferably 8 × 10". The image of the work should show clearly the entire copyrightable content of the work. As far as submitting work on CD's, while that type of "deposit" for published or unpublished works is considered ok, I honestly don't know what the requirements are and what type of files they need to be in. So for the answer to that I defer to the copyright office staff. They're glad to answer questions and they can be reached at (202) 707-3000. If you call them, please let us know what the answer is.
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Sharon Day |
Thanks, Mark! I'm glad I don't want to register hard copies. Looks like a pain not to mention expensive! I'll try to call within the next few days. If the image of the work should show clearly the entire copyrightable content of the work then my guess would be you would need to submit full size digital files.
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Mark Feldstein |
The rules used to include words to the effect that no machine should be required to view the image. I suppose that included projects, light tables and computers to read CDs although that seems to have changed. Since I don't do digital, I don't know. I would think that while full size images are correct, how big the files are themselves, I don't know. Seems there should be a circular on that issue but if you call, Sharon, then ask them about that too.
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Sharon Day |
Mark, I found some info at the Copyright Office's web site. It did not say what size the photo or the file had to be. It did state what kinds of files you should send such as JPEG or TIFF. Here's the link. I used to write. I'm not sure how much good it will do to call. When I had questions regarding copyright in relation to registering writings their people answering the phones never seemed to know anything. The best I could get out of them was they would send me publications on the subjects. I'll give them a try though.
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Mark Feldstein |
Sorry Sharon, but I read the entire page of that link you provided and didn't see anything about file types or CDs. Was there another link to follow on that page, like to form VA and the continuation form? M<
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Sharon Day |
Yes, there was a link to another form called GR/PPh/CON where it gave what file types to use. Here's that link as well. >a href="http://www.copyright.gov/forms/formgr_pph_con.pdf">Form GR/PPh/CON
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Sharon Day |
oops
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- Gregory LaGrange Contact Gregory LaGrange Gregory LaGrange's Gallery |
Reading from Micheal Grecco, for digital files you provide a copy of the file(cd, dvd...) plus a print out. You can provide images as a group, so that allows you to have several on a cd, plus a print out in contact sheet type form. And of course, this is coming from memory, and from what somebody has said they do when they get their work copyrighted. And yes, duly noted that information coming directly from the copyright offices is considered the most accurate and reliable.
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Sharon Day |
Thanks, Gregory!
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James B. Hewin |
Mark... You say "the work is protected when it's created or 'fixed in any tangible, reproducible means of expression'", yet you explain that it needs to be registered to bring any court action. In what way is it protected if it's not registered? James Hewin
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Mark Feldstein |
James: The easiest way to explain what you're asking is that at the instant you create the image, then assuming you're also a U.S. citizen, you are entitled to actually claim the right to copyright. That's one form of protection. At that point and continuing unless you transfer your right (in writing) to someone else, then you also have the right to send cease and desist letters and claim damages for infringement. To be able to avail yourself of judicial remedies in court (judicial enforcement of the right is another level of protection) and to be able to sue for statutory damages which can be quite high for deliberate or willful infringement, then you need to have applied for registration within 3 months of when the work was created. The copyright office takes approx. 4 months to get you a registration certificate assuming all your paperwork is correct. If you want to claim statutory damages (another level of protection) before actually receiving the certificate of registration and commence a civil action for enforcement of your copyright, you may do so, including requesting an immediate injunction (an additional protective measure) to prevent further infringement but to do that you'll have to demonstrate (usually by certified mail receipt and/or declaration made under penalty of perjury) that the registration is being processed by the CR office and pending. Take it light.
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- Terry L. Ellis Contact Terry L. Ellis Terry L. Ellis's Gallery |
In the March 2007 issue of "Outdoor Photographer," there is an interview with an attorney/photographer, Carolyn Wright. She has a new book titled, "Photographer's Legal Guide," and a web site at www.photoattorney.com. Her book is very enlightening with regards to copyright and model release information. The book sells for $19.99, or $9.99 for the ebook that you can download. Hope this helps. This is not an endorsement, but I ordered the book based on the article.
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Mark Feldstein |
I'll tell ya Terry, if I had the time, I'd do a book too and at least include the registration information, unlike Carolyn who left it off someone's blog last week and often omits it at Editorial Photo, where we're both members ;>). Have a great weekend gang !!! Mark
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Carolyn E. Wright |
The U.S. Copyright Office does not state a file size requirement for digital photos but of my photographer clients use 100-200 pixels on the long side. Bert Krages has a great batch program for Photoshop to make an easy "dump" of images here: http://www.krages.com/actions.htm I have a free tutorial on the steps to register your photographs available from a link on my home page that takes you here: http://www.naturescapes.net/102005/cw1005.htm The ASMP also has a lot a free great info on registering your copyrights here: http://www.asmp.org/commerce/legal/copyright/ Best,
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Mark Feldstein |
Just to be clear, I haven't seen Carolyn's book so I don't know whether it refers to registration or not. I did however, see a somewhat lengthy post she did on the subject of copyright at Online Photographer that didn't refer to the registration process. :>) Mark
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Debby A. Tabb |
Thank you Carolyn, One for taking the time to join here and comment. 2nd for the Quality information you have shared through this writting. I for one will be recommending your work to all those who email me to ask such sensitive questions. To those following, this book is a easy down load and quality info from a Atty. who also enjoys your intrests.
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Raymond H. Kemp |
I too echo Debby's thoughts. I have been involved with numerous privacy issues here at BP and have found Carolyn's site and book most authoritative and informative and I feel very comfortable referring issues to her site. Thank you Carolyn for joining and commenting. Ray
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Carolyn E. Wright |
Thanks, Raymond and Debby. I'm glad that you have found my book and blog to be helpful! fyi - Mike of "The Online Photographer" asked me to specifically comment on the "plagiarism"/derivative works issue for his blog. I have many posts on my blog at www.photoattorney.com on copyright registration. I look forward to being part of this group! Best,
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Mark Feldstein |
Yep. By all means Carolyn, welcome to the party !! BTW, what do you charge these days for a cease and desist letter? Mark Mark Feldstein, Esq. Photojournalist
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Carolyn E. Wright |
Thanks, Mark. fyi - I take some cases on contingency, some on a split contingency/fee basis, and some on a fee only basis depending on the facts of the case. Best,
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Sharon Day |
Mark, here's a sample "cease and desist" letter on this thread if you need one ;)!
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Mark Feldstein |
Thanks very much Sharon, but I know what they look like and how to draft one as I've done it many times. I wanted to know what Carolyn is charging her clients for them these days. :>) Mark
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Sharon Day |
Mark, I laughed and laughed when I read that. I loved, "Dear Airhead." I'm easily entertained...what can I say??
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Mark Feldstein |
My own preference Sharon is "Dear Bonehead"... :>) Hope you're doing well. M.
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Sharon Day |
Hey Mark, did you ever click on the link? You like "airhead" too ;).
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Mark Feldstein |
What a GREAT cease and desist letter !!! ROFLMAO !!!! Thanks for sharing Sharon. :>)) M.
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Sharon Day |
You're welcome ;)! I thought it was a great letter too :D.
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