Overcoming 
Obstacles
 to 
Copyright
 Registration

by Jim Cavanaugh, Cavanaugh Photography

Summary
Copyright registration is critical in order for photographers to have full protection of their works and resolve or litigate copyright claims which may arise. With prospective orphan works legislation on the horizon as well as other emerging trends such as the dramatic growth of the electronic transmission of images, registration has, in essence, become a necessity for the photography profession.

Recognizing the importance of this issue, ASMP recommends four key areas of improvement to the current registration process. First, the registration process should be modernized with software providers encouraged to offer menu items to link their applications directly to the Copyright Office’s electronic filing system. Second, the Copyright Act needs to be amended and the registration process streamlined by eliminating the distinction between images that are “published” and images that are “unpublished.” Third, an annual registration fee for each individual creator should be offered. Finally, a federal small claims resolution system is recommended to adjudicate the large number of smaller copyright infringement cases.

Background
In most cases, photographers recognize that it is in their best interest to ensure that they alone have the exclusive rights to control the copying, distribution and adaptation of their works. In order to do so, many photographers routinely submit their works to the United States Copyright Office. The number of copyright registrations by photographers is increasing and yet, ASMP has found many members and others have not taken this important step to protect their works. This is in spite of efforts by ASMP and other trade groups to educate photographers about the need to register images for full protection under the current copyright laws and about the procedures required to submit registrations. There are several key reasons for the disappointing registration numbers. These are:

  1. Assembling materials for registration is complicated and is a labor intensive, manual process. Currently, there is neither software nor a simple, published workflow available to streamline this process.
  2. The Copyright Act complicates the registration process by distinguishing between “published” and “unpublished” works.
  3. The costs to register small groups or collections of images are onerous.
  4. There is no system in place to resolve minor copyright infringement cases.

Registration Process
The majority of photographers rarely assemble multiple images for group registrations. Merely collecting images for submission on a regular basis can be time consuming and the manual processes used today can be overwhelming. Determining which images are unpublished and which may have been published, along with a separate process for each, presents additional obstacles. This is especially true since not even the Copyright Office can provide clear definitions for, or guidance on, the distinction.

However, there is an electronic solution. Widely used software providers like Adobe Photoshop, Adobe Lightroom, Expressions Media, Apple Aperture and others should be encouraged to incorporate a special registration menu item or utility. This would allow the photographer to submit a single image or collection of images via the Copyright Office’s electronic registration system. Furthermore, the same automated action that prepares a copyright registration could simultaneously send the images to an Orphan Works Registry.

This would streamline the process, incorporate easily into every photographer’s workflow (collecting, organizing and processing of work), provide for more timely copyright and Orphan Works registrations, and increase efficiency (for the photographer and the Copyright Office) by accommodating large numbers of image registrations.

Published vs Unpublished Works
Registration is made complex because there are different procedures in place for submitting published work and unpublished work to the Copyright Office. To complicate matters further, published work must be submitted in a format determined by the date of its publication.

The photographer’s work process and how clients use images create a unique set of problems and make the distinction between published and unpublished works difficult and, in some cases, impossible to determine. This is because photographers may create thousands of images on a single assignment and as many as hundreds of thousands in a year. While they may have some idea of the more current uses of their images by clients (through the rights granted in their licenses), they are often unable to determine exactly how, or if, clients are using their images in the future. Clients rarely report back when an image they have provided has been published.

This problem is further compounded by the dramatic growth of the number of electronic image transmissions via the internet and elsewhere. Yet, the U.S. copyright law does not specifically address the definition of “publication” in online transmissions which begs the question ‐ in what cases are electronically published images considered published?’ Removing the distinction between published and unpublished photographs would be an excellent first step in simplifying the registration process and procedures. However, if registration could be accomplished immediately and automatically as part of the photographer’s workflow, images could be registered as unpublished, thereby eliminating the problems created by the distinction.

Annual Subscription Fee
The Electronic Copyright Office (eCO) offers registration of single items or groups of items at a cost of $35 per submission. Thus, if a photographer were to complete 100 projects in a year and file each project separately, the cost on an annual basis would be $3,500. Or, for efficiency and to save money, a photographer could register work once a month resulting in an annual cost of only $420 (12 X $35).

The choice for photographers is to register frequently (on a project by project basis) and pay more to ensure the protection of their work, or to save money by registering periodically (monthly, for example) and, in doing so, increase the risk that their work might be unprotected for a period of time.

To accommodate the needs of both groups, ASMP recommends an additional fee option to be offered by eCo ‐ an annual fee. Photographers who chose to register frequently would be able to do so economically and those who chose to register less frequently could continue to use the per time registration of $35.

The provision of a reasonable annual fee would remove a financial obstacle and burden for concerned photographers who wish to register as images are created. It may also benefit the Copyright Office by increasing fee revenue due to the associated increase in the number of photographers using the registration system.

Small Claims Resolution
Seeking legal resolution to copyright disputes in federal court can present an expensive and time consuming process for all concerned. The majority of infringements are modest in economic value, yet the plaintiff costs associated with bringing a case to court can be prohibitive and may even exceed the costs of damages. While these high costs can be an effective tool in bringing settlement before a case comes to court, the high legal costs and unknown outcome of a case often prevent rights holders from seeking remedy.

ASMP recommends the establishment of a small claims resolution process. This would offer several benefits to the plaintiff, the defendant and the court. It would provide simple and effective resolution for infringement claims for smaller cases, greatly reduce the time and costs required to seek resolution, and free up valuable federal court time.

Next Steps
In order to encourage photographers to register their works, ASMP’s recent efforts have included Registration ©ounts (an ASMP initiative to create awareness of copyright issues, to encourage all photographers to register their work, and to provide the tools and information needed for registration) as well as educational registration workshops (most recently in 25 cities throughout the country) and an online copyright tutorial ASMP’s web site.

ASMP plans to continue to provide leadership on this critical issue by communicating the importance of registration, joining with other trade groups and organizations to address registration issues, and offering thoughts and ideas to regulatory agencies for making the registration process more efficient and effective for all.

This paper served as background for Mr. Cavanaugh’s participation in the Public Knowledge event, Toward a Copyright Office for the 21st Century, held on March 7, 2011 in Washington D.C. He is First Vice President of ASMP, the premier trade association for the world’s most respected photographers.

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