The all important copyright registration process

The NPPA (National Press Photographers Association) has a great tag line they used to use with many of their promotions that goes “Our Images Are Our Legacy.” I believe that same idea applies to all kinds of photographers, not just photojournalists belonging to the NPPA. (I would argue that this idea is true for any creative practitioner who wants their work to be their legacy.)

There are many ways that photographers can make sure their images are in fact their legacy, varying from creating a foundation to promote their work to donating that work to an academic institution (and then hoping it is well treated.) For the rest us, there is an easier, more accessible and more economically rewarding route to take, which is registering work with Library of Congress.

Registering a set of photographs with the Library of Congress does two very important things. First, the work becomes part of “…the world’s most comprehensive record of human creativity and knowledge…” which is at the core of the Library of Congress. Their mission is “ …to acquire, organize, preserve, secure and sustain for the present and future use of Congress and the nation, a comprehensive record of American history and creativity and a universal collection of human knowledge…. to make its collections maximally accessible to Congress, the government and the public….”

Second, the same registration gives you an enormously powerful legal tool to go after people who use your photographs without your permission. With your work properly registered, any lawsuit you might file against an infringer could win you the use fee for the image they should have paid you, your lawyer’s fees and very substantial punitive damages (possibly up to $150,000 in some cases.) Without your images being registered, you are only eligible for the use fee for the image they should have paid you and nothing more.

The Copyright office at the Library of Congress basically makes a deal with all creative practitioners. They ask for a copy of our creative work for their library and in return they give us this powerful legal tool to protect our work. The amazing thing about this “deal” is how few photographers take advantage of it.

Keep in mind that I am not a lawyer (nor do I play one on TV) and what I am about to tell you should not be interpreted as legal advice of any kind. Most photographers I know may quibble with my phrasing, but I am sure I am broadly outlining the law and the copyright registration process in an accurate way. After you read this you should read a lot more on the subject (and maybe even consult a lawyer. Make sure the lawyer is knowledgeable in terms of intellectual property.)

It is true that when any creator fixes their expression/interpretation of an idea, that fixed expression is copyrighted and it belongs only to the creator. The “creation” may be a photo, a piece of music, a sculpture, etc. The ideas themselves cannot be copyrighted. The fixed, tangible expression of those ideas is the only thing that can be copyrighted. Keep in mind that under American law, the copyright exists from the moment of creation. While registering work with Library of Congress offers the creator other important legal protections, when the work is created, it is copyrighted.

Remember that I am discussing American copyright law, as compared to the law of other countries. Collectively, a number of countries have been working for a while to align copyright laws between nations. The process is nowhere near finished, but the current international agreement that is at the core of the process is called the Berne Convention for the Protection of Literary and Artistic Works. (As an aside, you can register work with the Library of Congress whether or not you are a U.S. Citizen or resident.)

As the creator of a work, you have exclusive rights over your copyrighted work. For those fixed expressions/interpretations of your idea(s) (which in our case are our photographs,) you control their reproduction, distribution, public performance and modification (also known as having the right to create derivatives.) This right runs for your lifetime PLUS seventy years, meaning that after I die, my family, and especially my imaginary grandchildren will receive the economic benefits of my creativity.

The most widely known aspect of copyright is probably the idea of marking your images with the proper copyright notice, which is the copyright symbol, followed by the year followed by the author’s name. Use of the copyright notice was mandatory until March 1, 1989, when it became optional, though its use is still encouraged. For works published on or after that date, if the work doesn’t have a copyright notice, it still is protected by copyright.

Another big change in the copyright law occurred in 2001. Before that, you could only register one image at a time for one fee. As of 2001, the law was changed to allow for bulk registration, which simply means that you can register all the images you want at one time (within one calendar year) for one fee. Each registration can only have either published or unpublished work but you cannot mix them in one registration. Since I am continually sending new work out (and often having it published) I cannot wait and save all my work to register one year at a time as unpublished. So, I register my work about once a month, saving all my work up to submit at one time. Thus, I register 400, 700, or over a 1,000 images (or more) at one time.

The three parts of any registration are the application form, the actual images and the payment.

The application can be done with a “paper” form, which you can download, complete and send back, which costs $45 per registration. You can also complete the same form, but on-line, at a cost of $35 per submission. The Library of Congress is incentivizing you to go on-line, which is what I do. The interface of the Electronic Copyright Office at https://eco.copyright.gov/ is a bit weird (it strikes me as a typical Windows interface) but it works. You will need to create an account, sign in and follow the process to file a registration. The best thing about the system is that once you create an account, it saves your all of your information, so the next time you complete a registration, most of your information is filled in, greatly speeding up the process.

Next comes the “deposit copies.” These are the actual images that become the core of the record of your work. You can submit them in many forms, such as images on a DVD or CD, as electronic copies of the images or as actual photographic prints/images. You can also make a video of the still images but a single frame must be on the screen for 5 seconds, so this seems rather tedious. Since the idea is that the registration I am creating is supposed to be my legacy years in the future, DVDs seem unreliable, as those disks will likely fail in 50 years or less (assuming DVD readers even exist then.) What are the chances that the electronic copies of your images will be found in 50 years (or more?) That is why I send actual images, in the form of 4” x 6 “ proof sheets. You can send any kinds of actual images including B + W proof sheets, color photocopies of proof sheets in either B+W or color, etc. The actual images are supposed to be about postage stamp size or bigger, which is why I only get 12 images on each 4 x 6 proof sheet. I use 4 x 6 proof sheets only because they are the least expensive print available. For me it is much cheaper to make the prints through an online service like Shutterfly, Snapfish or oFoto as compared to printing them myself. Also, if you are smart you will make a duplicate set of prints for your records (and to have handy in case you either end up in litigation or have to correct some kind of mistake in the registration that was made by the Library of Congress.) The file name, ideally using your established naming convention for each image file, should be under each image on the proof sheet (or with each image if sent electronically.)

The final component is the payment, which can be done through a bank account that you set up with the Library of Congress (huge hassle) or via a credit card (very easy.) Once the payment is made, you have to decide how to actually send the “deposit copies.” You can upload them electronically or send them as hard copies, in the form of actual photos or images on DVD(s.) Here is one area of divergence among people who register their images regularly. Some people swear by the electronic upload system and many swear at it. I have had mixed luck, but I will say that if you follow the instructions in terms of web browsers to use/avoid, image file size, etc., the system generally works. Like anything involving a lot of bandwidth, it is usually better to send your work at night or early in the morning when the web has less traffic.

Be careful about getting too close to midnight when the Library of Congress system may cut off your upload. The biggest issues seem to involve timing out, on the part of the Library of Congress site or on the part of the computer of each individual person submitting, either of which, interrupts the image upload. The Electronic Deposit Upload window has a 60-minute limit so you may have to upload multiple deposit files in more than one session. The actual images you upload electronically can be one of many formats, varying from AutoCAD Drawing to Targa Graphic plus of course, TFF, JPG and PDF.

As I have noted, I am an outlier since I send actual 4 x 6 proof sheets with images per page. At the top of each proof sheet is my name, address phone number, URL and e-mail address, which can be put on via an action in Photoshop, Lightroom, etc.

I send those proof sheets, which can easily be dozens or as many as a hundred prints (times 12 images on each sheet,) via Fed Ex. Since the Anthrax scare of 2001, the Library of Congress has had all incoming packages irradiated. Sending my prints via the Post Office puts them at the back of the line to be irradiated and forwarded to the Library of Congress.

Also, pack the submissions loosely because packing any submission too tightly, such as DVDs in thin jewel cases, is a recipe for disaster. Sending them by Fed Ex gives me a tracking number AND it gives the authorities in Washington a way to know who sent the same package. Having that tracking number has been important a few times when the registration certificate from the Library of Congress ended up with the wrong date. In those FEW cases I sent them my Fed Ex proof of delivery and they rectified the error.

There are a few “issues” to keep in mind when actually registering a set of images. If the work is UNPUBLISHED, all you need to submit is the actual registration, the fee and one set of deposit copies. If the work is PUBLISHED, you need to submit the same registration, the same fee, TWO sets of deposit copies, and a list of the dates of when the individual images were published. Since the requirements are so much more complex for the published images, I submit all my work as unpublished. Once the work is registered as unpublished it is also covered if and when it is published in the future. Do NOT mix published and unpublished work in the same submission. That will invalidate the registration for all the work in that submission.

Registering work once it is published is a great deal more complicated (and merits an article of its own.) One of the key issues in the registration of published work is the 90-day window after first publication that you have to register your work. In terms of published work, you can “back register” previously published work but the added copyright protections that come with registration only come into effect after the registration is filed.

Again, the benefits of registering your work with Library of Congress are two fold. Your work becomes part of the largest library collection in the country. You also get very powerful tools, which you can use to pursue infringers who use your work without your permission. That legal “hammer,” like your place in the collective history of our culture is ONLY assured if you actually register the work.

I have been diligently registering every image I have made since 2001. I do not pull selects and register just those. I register everything, just in case some “odd” image becomes the key to a lawsuit. (But I am an aggressive editor who can shoot 10,000 photos in a month on the road and get that down to 1,000 or less by the time I get home.)

Over ten years ago I had a pretty economically rewarding lawsuit involving a set of lost original slides. The reason we prevailed in that case was that I had a “perfect paper trail.” I am creating that exact same kind of perfect paper trail in case I need to litigate another such lawsuit, but this time one based on violation of my copyright.

Before you dismiss this as a lot of trouble, think about how often you hear or read about the release of once “lost” work newly “discovered” in the Library of Congress. Also think about the various successful high-dollar figure lawsuits involving copyright that photographers win regularly. The copyright system is not perfect. In a perfect world, simply being the author of the work would be enough make sure our work is appreciated artistically, historically and financially. But we do not live in a perfect world. We live in a world where adding just a few extra steps to your workflow in order to register your work is the fastest, easiest and most likely way to get the artistic, historical and financial reward your work deserves.

Resources:

Electronic Copyright Office: http://www.copyright.gov/eco/

NPPA (National Press Photographers Association) http://www.nppa.org/professional_development/self-training_resources/legacy_report/

Library of Congress http://www.loc.gov/about/faqs.html

Berne Convention http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html

ASMP Copyright resource: http://asmp.org/tutorials/copyright-overview.html

Editorial Photographers Copyright resource: http://www.editorialphoto.com/copyright/