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The PRO-Files: Get Ready For New Copyright Rules

When a photograph is created, it’s copyrighted. Photographers do not need to officially register their copyrights with the United States Copyright Office in order to claim ownership of an image, or to exercise their right to control how that image is published. But by registering works with the Copyright Office prior to an infringement, however, photographers (and creators of all kinds) have strong evidence to show infringers in an effort to collect licensing fees without legal action, and more importantly the ability to recoup legal fees and collect statutory damages up to the maximum of $150,000 per willful infringement. If an infringed image was unregistered, the best outcome in court is limited to collecting actual damages alone. This distinction is critical and can represent an exponential difference in the actual money a photographer is able to collect. All this adds up to one thing: it is imperative for photographers to register their copyrights if they ever hope to pursue legal action against an infringer.

In an effort to modernize the registration process and make registering groups of images more efficient, the U.S. Copyright Office just announced changes to the rules for photographers registering groups of photographs after February 20, 2018. The changes boil down to two different types of photographs: those that have been published and those as yet unpublished. The good news is that many of the rules are the same whether images are published or not—even though U.S. Copyright Law still requires keeping the two types of images separate in a registration. (A pilot program for registering entire databases remains in place, although this is less pertinent to individual photographers.) 

The two categories of images are designated GRPPH (for “group of published photographs”) and GRUPH (for “group of unpublished photographs”). There is a baseline set of rules that apply to each category, with published photos having a few extra particulars of their own. 

The new shared rules require a payment of $55 for any group registration, which must occur online and is limited to no more than 750 images in JPEG, GIF or TIF file types—preferably compressed in a zip file no larger than 500MB. The filing must also include a spreadsheet or PDF that lists the photographs in a specific way. All photos in the group must be credited to the same photographer (or “author,” in the case of works made for hire in which the employer owns the copyright) and the group of images must be titled. Individual images must also be titled, but file names are acceptable (as long as they only include letters, numbers and spaces).

Leslie Burns, an attorney specializing in issues of interest to photographers and visual artists, says that the new limit to the quantity of images included in a filing may give some photographers pause but it shouldn’t.

“I do have concerns that photographers will balk at the 750 image limit,” Burns says, “but really, the math really works in a photographer's favor. The minimum statutory damages available for an infringement is $750. For $750 you can register 13 groups of 750 images (9,750 images) and have money left over. If you get one minimum-damage award in a settlement, you have just recouped your cost for ‘insuring’ 9,750 images. The fact is, with statutory damages available, any settlement or award is probably going to be significantly better than $750. Keep in mind, the maximum is not likely (depending on circumstance), but if you could net, for example, just $2,000 for every $55 ‘invested’ in registering 750 images, why wouldn’t you?” It’s important to note that Burns isn’t offering specific legal advice here, and she advises that you consult with your own attorney.

Regarding that list of photographs, it has some peculiarities but nothing that should be too cumbersome once photographers get the hang of it. The list must be named with the title of the group of photographs being registered, along with the case number the copyright office’s online registration system assigns to the group—but the case number is only assigned after the online registration is begun, so the application must be started before the file can be fully named. The list should include sequentially numbered images and titles, as well as the file name—even if the title and file name are the same. (For instance, a JPEG named “JohnSmith.jpg” should also note a title, which can be “John Smith.jpg” as well.)

According to the Copyright Office, this document and its specific construction are intended to solve a problem with the previous system whereby infringers would argue in court that images from a group registration were only part of a whole, and therefore of less consequence when the group registration was considered as a whole.

“I think that this new system is better,” Burns says. “In the previous pilot program for Group Published Photographs registrations, photographers had to list the title of each work and that information appeared on the certificate. If an infringer tried to say ‘that work wasn’t in that registration,’ as they often try, the photographer could show the certificate that said, for example, ‘Smith Building Exterior 1’ and, if the photo at issue was of the Smith Building, then the infringer usually gives up that lame defense. Now, with the new Group Unpublished Photographs registration that requires that same list of titles, those image titles will appear on the certificate as well, and so we’ll have that same weapon. The key is to use good descriptive titles for your photographs. While not absolutely necessary, it will be helpful.”

“Also,” she adds, “for unregistered collections (the previous method of registering lots of unpublished photographs), the case law was a bit murky so defendants would often try to argue that a photographer could only get one award of statutory damages, no matter how many images in the collection were infringed, or that the award should be small since only a part of the whole collection was infringed. The other side of that is they would also try to say it was fair use when they used only one or a couple of images since that was a teeny part of the 1,000 images in that one registration! These new rules make it clear that each image is fully and individually covered. That’s a huge win for photographers.”

For published images, the registration document should also outline the date of first publication of an image. Published images registered in a group (GRPPH) must all share the same year of first publication—meaning a single group registration cannot include images that were originally published in 2017 and in 2018. These two groups must be registered separately. However, images in the same group may have been first published in different countries, which is a positive change from the previous system. 

Upon completing the online registration, the Copyright Office will issue an official certificate of registration listing all of the images included in the registration, and at the moment that turnaround time is approximately six to eight months. The effective date of registration will be the date the online registration was submitted. 

For more information on copyright registration, visit the U.S. Copyright Office’s website at www.copyright.gov.  To learn more about Leslie Burns and her legal practice, and to read her insightful blog, visit her website at www.burnstheattorney.com.

About the author:


William Sawalich made his first darkroom print at age ten. He earned a Master's Degree from The Brooks Institute of Photography in Santa Barbara, California. Along with portraiture, still life and assignment photography, Sawalich is an avid writer. He has written hundreds of equipment reviews, how-to articles and profiles of world-class photographers. He heads up the photo department at Barlow Productions in St. Louis.

 

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