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Copyright
Procedures A Tutorial, © 2002 Peter Krogh www.peterkrogh.com Disclaimer: We are providing information on how photographers may copyright their work. Although we believe it to be accurate, we are not responsible for any errors or omissions. It is best to consult a lawyer or the US Copyright office to make sure that you are following proper procedures. That having been said, here's some information: Registration is Protection: Although all work is copyrighted at the moment of creation, not all work is protected equally. If a registered work is later infringed, the creator can recover actual damages (the fee that would normally have been paid for the use), as well as Statutory (Punitive) Damages and legal fees. A work that is infringed and has not been registered, can only generate the Actual Damages. This means that, in most cases, the cost of the suit far exceeds the recoverable moneys. The one exception to the above is work that has been infringed within 90 days of first publication. In this case, it is still possible to register and have access to Statutory Damages and Legal Fees. If you are in this position, you need to register immediately. How to Register: The procedure for submitting work to the copyright office varies according to several factors. Unpublished work is the easiest to register, and affords the most bulletproof registration. Work that has been published must be submitted in a format determined by the date of its publication, which is roughly divided into four categories. The first is work that has been published within the last 90 days: the second is work published after 1989, third, work published between 1978 and 1989, and finally, work published prior to 1978. Each of these categories has a set of rules governing the format of submission, or "Deposit". They are outlined below. Contact the Copyright Office: The United States Copyright Office is there to help you. The phone number for public assistance in preparation of copyright submissions is 202-707-3000 Work Published within the past 90 Days Work Published After 1989, and prior to 90 days ago Work Published Between 1978 and 1989 Formats for Registration Deposits Caveats:
To simplify, unpublished work refers to work that has never appeared in public. This means, in the broadest interpretation, that it has never appeared in print, on the web, in a gallery show, or on television. Registration of this unpublished work offers a nearly ironclad copyright protection, one that cannot easily be challenged in court. In order to register the work, you must prepare a "Deposit" or submission to the Copyright Office, within the Library of Congress. This deposit will serve as a permanent record of your claim to ownership of the image. The deposit must be a clearly recognizable copy of the image, so that upon infringement, you could demonstrate that an image in question is yours. Additionally, the deposit should be made in such a medium that it will still be viewable during the term of the copyright, which, for independent creators, extends to 70 years after the author's death. Of course, the Copyright office outlines the formats it will accept for copyright deposits. Those can be found in in the instruction portion of the Group Photo Registration Form. Group Registration: You can register as many Unpublished images as you wish in one submission. We strongly suggest that each photographer make it as his goal to register EVERY unpublished image in his files. Deposit
Formats:
Print Film Copies: One of the easiest ways to register work is to copy images in bulk with standard color print film. For Slide Pages, this can be done on a standard light table, shooting a page of slides at a time. You can also shoot an entire contact sheet with print film. Once you have shot the copy images, have double prints made, and submit one set, and keep the other one in your file, so that you can see exactly what registration and print is in.
Digital Camera/Scanner: Like the Print Film protocol above, you can simply shoot copies of your slide pages or contact sheets. You can then either submit them on CD ROM, print the copy photos out, or both. If you submit on CD-ROM, we STRONGLY suggest that you include a laser copy or Xerox of the deposit because CD-ROM longevity is unknown. It is almost certain that the CD will not be readable for the entire term of the copyright, and that might result is the loss of copyright protection at some time inch future. In either Case: For slide pages or contact sheets that include one or more previously published images, we suggest that you cover the published image with a post-it note before rephotographing it. Workflow: Since Registration of Unpublished work affords the most protection, it is the most desirable. Our suggestion is that you photograph every job before it goes out the door, preferable on some permanent copystand setup. You can wait to submit until the first of that work is about to be published. If you work on projects that have a long lead time, this may mean biweekly or monthly submissions. If your work gets published more often than that, you may want to work the procedure below into your workflow. Forms to Use: Examples: Here is an example of a job that was shot rush, copied with a coolpix 990 and registered unpublished before the ads came out. Here is an example of a shoot where some of the images had been published recently, but the bulk remained unpublished. This is how I split up the submission.
Work Published within the past 90 Days For work that has been published within the past 90 days, Copyright law provides an important special provision. It affords full protection to the work retroactively from the date of first publication. Group Registration: New regulations have actually made it easier to register a group of photographs than an individual photo. Additionally, it obviously drives the unit cost of registration down. We strongly suggest that all published registrations be group registrations. Workflow: If you do the kind of work that is published on short turnaround times, such as newspaper work, or if you have neglected to register work before it has been published, then the 90 day window is for you. You can send in tearsheets, copies of tearsheets, or good samples of the photographs to the Copyright Office. We suggest the following formats: Deposit Formats: Print Film Copies: Shoot copies of the work in print and submit those photos. Tearsheets: You can simply send in tearsheets. Make sure that you indicate which photos you are registering, if other photographer's work appears on those pages. Copies of Tearsheets: You can photocopy the tearsheets. Be sure to do a color photocopy if the original usage was in color. Make sure it gets to the Library of Congress before the 90 days are up. This date is calculated from the date of the earliest publication in the group. Forms: We suggest the Short Form VA for this, in conjunction with the Group Registration of Photographs Form. Here is an example of how it should look. Examples: To see an example of how to register your recently published material, click here. To see how to handle a shoot that has both published and unpublished material, click here.
Work Published After February 28th, 1989, and prior to 90 days ago If the 90 day window has gone by, but the work was published after 1989, then the new Group Registration rules have made it much easier to to register up to an entire calendar year's worth of work. Group Registration: The new regulations permit the registration of up to one calendar year's worth of published work to be registered at one time, for one $30 fee. Additionally, the format for such deposits has been loosened considerably. You no longer need to show how he work was used in print, but may now simply submit a good example of the original photograph. This is a major change in the registration procedure that ASMP has helped to bring about. Deposit Formats: For most of us, there are a relatively small number of images to register from prior years, compared to the volume of unpublished work from the same period. Therefore, we recommend the following protocols: Print Film Copies: If you have copies of the work used in print, then the easiest form of deposit may be to shoot print film copies of it, and submit those. Digital Camera/Scanner: You can also use a digital camera or scanner to scan the original image or the printed piece, and use that as a submission. Is either of these cases, we suggest that you accompany any CD-ROM submission with a hard copy print out, in case the CD-ROM were to become unreadable during the life of the copyright. Tearsheets: Send in the tearsheets. 'nuff said. Copies of Tearsheets: Make sure that you send in color photocopies if the work originally appeared in color. Forms: We suggest the Short Form VA for this, in conjunction with the Group Registration of Photographs Form. Here is an example of how it should look. Examples: Here are several examples, including Images published in a Stock Catalog and several Magazine Photographs.
Work Published between January 1, 1978 and February 28th, 1989 This is like the Work Published After February 28th, 1989 above, with one important exception. In order for the copyright office to accept the Deposit, a proper copyright notice must have been placed somewhere in the original publication. The notice MUST include the following: Copyright (or ©, or Copr.) Year, and Name. If the notice does not appear anywhere in the publication, no registration can be made. The Deposit must show the photograph as it actually appeared in firs publication.
If the notice is present somewhere in the publication, you can make a group or individual registration of the work. The submission guidelines are like the the one described above, except that you must also provide the proof of copyright notice, and the Deposit must show the photograph as it was first published. Example:
Work Published Prior to January 1, 1978 This is very similar to the Work Published Between 1978 and 1989, with the following exceptions. The copyright notice only has to read Copyright (or ©, or Copr.) Name of Copyright Holder, and did not have to have a year date. Additionally, the Copyright notice needed to be adjacent to the photograph, or specifically enumerated somewhere in the publication.
Caveats:
Until June 30th, the cost for any submission, whether group or individual, is $30. You can add the cost of preparation of the deposit to this, as well as the cost of delivery. For an active photographer, this could be several thousand dollars a year. We believe that this is a very small price to pay, considering the value that Copyright Registration brings. Copyright Registration provides benefits for at least the next 70 years. And registration protects you against more than a sneaky third party using your image surreptitiously. If a client refuses to pay for images that they have used, a proper registration is perhaps your most important tool to enforce compliance with your contractual terms. Remember, the Bettman Archive, which sold for millions of dollars to Corbis, was made up of images that were fished out of dumpsters behind publishing houses. It is very hard to predict what images will have value 50 years from now.
Just because a work is accepted by the Library of Congress, it does not mean that the copyright registration cannot be challenged in court. In fact, if a significant amount of money is on the line, expect there to be a challenge. Any falsification or factual error in the registration could potentially invalidate the registration. You must expect that the defendant in a copyright case will look hard at all information on the form, including the publication dates. Make sure that you are registering the earliest possible publication of the photo. The LOC is the Library of Congress, and those of you who live in the Capitol Region have an edge here. Copyright Protection does not begin until the Copyright Office receives your submission and approves it. In the case of short-turn-around time publications like newspapers or weeklies, a matter of days can make the difference between a work being unpublished or being published. This difference could invalidate a copyright registration. The recent anthrax scare has delayed the delivery of mail to Federal Buildings. We strongly suggest that you send your submission in via the following methods: Messenger, assistant, Private Carrier (Fedex, UPS, Airborne, etc.) Submissions should be addressed to: US Copyright Office Library of Congress Hand Caries should be taken to Library Madison Room 401 Credits and Errata This tutorial was prepared by Peter Krogh with the help of the good people of the United States Copyright Office. This is not intended as legal advise, and no legal claims are made as to its accuracy. If you think you have found a mistake, or would like to add information to any part of it, please contact Peter Krogh at Kroghphoto@aol.com. If you found this page helpful, please link to it from your site: this will help other photographers figure out how to copyright their work. |
