This article is by Daniel Foster, founder of Pixsy

from the Pixsy Blog. Pixsy is an Industry Partner

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TEN Things You Didn’t Know About
Copyright Registration daniel07.2014

Do you register your work with the US Copyright Office? Though the
idea of copyright registration sounds quite antiquated in the Internet age,
there are some very good reasons why you should register. There’s also
a lot of misinformation running around about how registration works,
who can register, and if you need to even register at all. Here’s why
every artist– including non-US photographers– absolutely, positively
should register their work.

1. Registration provides prima facie evidence of your

copyright
Prima facie is a Latin term that literally means “at first sight” or “on its
face.” Copyright registration has a presumed validity in a copyright
infringement claim unless challenged by the defendant. This shifts the
burden of proof substantially in your favor. Instead of having to
prove you shot a photo and own the rights, the defendant has to provide
evidence to the contrary if she disputes these facts.
The Ninth Circuit Court of Appeals reaffirmed this presumed validity
in United Fabrics Int’l, Inc. v. C&J Wear, Inc:
As the copyright claimant, United is presumed to own a valid
copyright, . . . and the facts stated therein, including the
chain of title in the source artwork, are entitled to the
presumption of truth. . . .  By failing to point to any evidence
indicating that the copyright was invalid, . . . Macy’s has
failed to rebut the presumption.
Let’s save he-said-she-said arguments for  the school yard. Register
early and register often (more on this later) to easily validate your rights.

2. There is no such thing as a poor man’s copyright

Photo: dcjohn (CC BY 2.0)
We’ve heard the suggestion many times that instead of formally
registering  a work, you can use a “poor man’s copyright” or “mailbox
copyright.” This involves sealing the work in an envelope (it could be a
blog post, poetry, or photos on a CD) and mailing it to yourself. The
theory is that once the sealed envelope is stamped with a postmark and
mailed back, you’ll have indisputable third-party evidence that you’re
the creator of a work. Who could argue with the U.S. Postal Service?
There are a number of reasons why a poor man’s copyright won’t help a
starving artist:
1 It’s not difficult to tamper with an envelope and reseal it.
2 You still won’t be eligible for statutory damages (see below)
3 A poor man’s copyright isn’t a public record
Very often artists assume that copyright disputes resolve around who
actually created a work. Copyright infringement isn’t the same thing as
plagiarism. Ownership of a work generally isn’t a major issue of
contention in copyright disputes. The amount owed, however, often is
and a poor man’s copyright won’t help you with this. A registration with
the U.S. Copyright Office will.

3. Registration = $750- $30,000 in statutory damages

Under 17 U.S. Code § 504, owners of a timely copyright registration
may elect to receive $750 – $30,000 in statutory damages. There is also
the possibility of receiving attorneys’ fees. Without a registration, you
bear the burden of proving actual damages or lost profits and generally
don’t have the chance of recovering legal fees. Statutory damages are
intended to serve as an incentive for registration and to relieve copyright
holders from the burden of calculating damages, especially in situations
where determining the precise harm done is difficult. In cases of wilful
infringement, the court may award up to $150,000 at its discretion (this
is very rare).

4. You can register up to 750 photos at once and save money

The $55 copyright registration fee ain’t cheap, but you can spread it out
among multiple photos. The Copyright Office lets you submit up to 750
photos in one registration. From their website:
 A group of published photographs can be
registered on a single form with a single fee if (a)
all the photographs are by the same
photographer (if an employer for hire is named
as author, only one photographer’s work can be
included); (b) all the photographs are published
in the same calendar year; and (c) all the
photographs have the same copyright claimant.
Note again that all photographs should be from the same year. The rules
and consequences surrounding group registration are different for non-
photographic works, so any poets and painters reading this should do
their own research.
5. Statutory damages are only available per registered work,
not per photo
Photo: Jeffrey Zeldman (CC BY 2.0)
Photographers are big fans of 17 U.S. Code § 504 because it provides
statutory damages for registered works, but only per registered work. In
this case, 750 photos in one registration count as one registered work. So
if a particular zealous infringer were to publish all 750 of your photos
from one registration without permission, you’d still be looking at the
same statutory damages as one photo use.
This is particularly relevant to projects involving the same subject
matter. Brandon Stanton’s famous Humans of New York project is a
great example. Last year, Stanton accused DKNY of publishing up to
300 of his photos without permission after he refused to license them for
use in its stores. Had Mr. Stanton possessed a timely copyright
registration (he didn’t) and decided to go to court, damages would have
been limited to a single work. In the end DKNY opted to donate $25,000
to a local YMCA on Stanton’s behalf, a great outcome for everyone.
If you are especially concerned about infringement and want to be
proactive about your rights, it might make sense to split up important
projects into multiple registrations. Mr. Stanton could have registered
his individual photographs in three sets of 100, for instance. While more
expensive up-front, it gives you a much better seat at the negotiating
table if a company decides to help themselves to the cupboard and the
pantry.

6. You can register your copyright online

Copyright registration is a lot easier than a trip to the DMV. Even
though it looks like something out of the late 1990s, the eCO system is
much preferable to mailing your registration and deposit. It’s cheaper
and faster, too. The eCO system lets you register, submit a deposit and
pay online.

7. Foreign photographers can register, too

Photo: Joe deSousa (CC BY 2.0)

It’s a common misconception that only Americans are eligible to

register with the US Copyright Office. Any citizen who lives in
a country that has signed an international copyright treaty with the US
may register. This even includes China and Cuba. Only citizens of a
select few nations, including Iran and North Korea, are ineligible and
even there are excpeptions (see Circular 38a for a list of status by
country).  The Copyright Office will gladly mail your certificate of
registration anywhere in the world at no additional fee.
Registration is particularly important for foreign photographers, who
may be perceived as less able to protect their rights.
8. You should always register within 3 months of publication
You must register your works within three months of publication
or within one month of learning of an infringement (source) to be
eligible for the statutory damages outlined above. If your registration is
late, the judge is very likely to say, “Nice try but no cigar.” However,
you may register at any time and receive statutory damages for
infringements that started after the effective date of registration.
NB: In the case of ongoing publication, the registration must be made
before the very first use. Suppose that from 2008- 2012 a Fortune 500
company uses your photo in a PowerPoint template. You learn of the
infringement in 2011 and register the work. The usage in 2012 would
likely not be eligible for statutory damages. Questions on the timeliness
of a registration are very complicated– talk to an attorney before
making a conclusion if the situation is unclear.
The three-month window lets you very easily make registration part of
your everyday workflow. Make four registrations a year– each at the end
of March, June, September, and December– and you’ll be good to go.

9. You can’t go to court without a registration

Lawsuits are never fun and certainly should be avoided. Court isn’t
nearly as exciting as on TV. Should a lawsuit be necessary, however,
you must have a copyright registration before filing your claim. This is
the case even if the infringement occurred well after your registration
and you aren’t eligible for statutory damages. This makes
sense considering that registrations are prima facie evidence. Courts
want to spend their time resolving disputes about damages, not
ownership.
10. You don’t need to display a copyright notice
There is no requirement to display a copyright notice, watermark or
other text to indicate your works’ copyright status. Many photographers
find that such notices distract from the aesthetics and artistic impact of a
photo, and there’s no guarantee that they won’t be removed later (this
has its own legal implications). It’s up to you to decide when, where,
and how you wish to display a copyright notice, if at all.
Note: This article is not intended to serve as legal advice and nothing
contained herein should be construed as a substitute for legal advice.
Always consult an attorney if you have questions about copyright or the
law.