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Copyright law in the United States grants copyright to the creator (photographer, illustrator, writer, artist, etc.) at the moment of creation. Under the Copyright law’s intent, full legal protection is also granted at that moment. However, the law’s intent and the realities of the legal system leave creators without any real protection unless they take the additional step of registering their work with the United States Copyright Office Unless a work is registered before a copyright infringement takes place OR within ninety (90) days of first publication, damage awards are limited to “actual damages.” This is often the fee a creator would have been paid for the work had it been licensed properly. The problem comes from the fact that copyright law is a federal law and copyright claims must be prosecuted in Federal court. This can be very expensive. Just filing the claim and initial briefs can cost in excess of $10,000! In fact, a protracted copyright case can cost hundreds of thousands of dollars in legal and court costs! If your actual damages are only a few hundred dollars, say for an infringement of photograph in a quarter page ad in a local newspaper, you need to be really motivated or independently wealthy to bring the case to court. However, if your images are registered, you are eligible for actual damages as well as up to $200,000 in punitive damages per infringement. And, the courts may (and frequently do) force the infringer to pay all legal and court costs. I have found that the fear of the legal bill is often the leverage that motivates an infringer to settle a claim long before it moves to court. Registration clearly is the “big stick” for independent creators. With this in mind, you would assume that creators would avail themselves of this protection. Sadly this is not the case. The Professional Photographers of America recently completed a survey of professional photographers concerning copyright. What they found was astonishing. Less than one percent (1%) of professional photographers register at least half of their work. Worse yet, ninety-seven percent (97%) of photographers have never registered any of their work! The main reason photographers gave for not registering was the time and complexity to prepare the submissions. Navigating copyright regulations can create the impression that the process is difficult when, in reality, it is quite easy and straightforward for most. Recent changes in copyright registration procedures, including bulk registration, have greatly simplified the process. Bulk registration of photographs allows photographers to register an almost unlimited number of images at one time using a simple form (Short Form VA) and for a single registration fee of $30.00. That is the good news. The bad news is with this simple registration option; the copyright office only receives about 800 bulk registrations from photographers per year. This is out of 600,000 to 800,000 total registrations annually. The reason for this seems simply to be that photographers are not aware of how easy the procedure to register has become. The procedure is especially easy for photographers who create their images digitally. A note on the future of the Copyright Office is important. The Copyright Office is moving to an all-digital environment over the next two years. The physical offices will be fully revamped and over 500 employees retrained in fiscal years 2005 and 2006 to accommodate this change. However, even now, the preferred method of registration by the copyright office for photography is j-peg files on CD-ROM. Here is the simple procedure I use to register all of my work. Keep in mind that you need to register every two months for full protection. Images must be registered before an infringement takes place OR within 90 days of first publication. Registering your current work every two months will keep you within that legal time frame. You will bulk register all of your images
as unpublished images using short form VA. Download that form
here:
That’s all there is to it. Now, lets look a little more in-depth at a few items. When you set up your desktop folder, you want to make sure that you place images in the folder as part of your regular workflow on each assignment. This makes sure it is done on an ongoing basis. It also prevents you from having to go back every two months and gather all of the images for the registration. The j-pegs only need to be large enough to view on a computer monitor. I use 5x7 images at 72ppi and use high compression to save space. All you need on the CD-ROM are the j-peg (or tiff or giff) files. You no longer need to include software to open the images. Make sure to fill out Short Form VA completely and make sure to sign the document. Any blank areas will result in your submission being returned. For the title use something like I do: “Assignment and Personal Photographs of James Cavanaugh from 11-1-04 through 12-31-04” Items sent to the copyright office must go through a series of security checks to protect against possible terrorist threats like anthrax. This includes irradiating all envelopes with a very high dose of radiation. This can cause damage to the paperwork (It burns!) and the CD-ROM (They melt!). Send your submission in a box. The boxes are hand opened off-site and are scanned for threats but not irradiated. I use the small FedEx box. Now, if you do not shoot with digital cameras there are other deposit forms you can use instead of the CD-ROM. You can include proof sheets or photocopies of the images. It is important if the images are in color that the proofs or color copies be in color. If you use primarily transparency film, you can make 35mm slide copies of up to 30 images on a single slide and use that. For more information visit http://www.copyright.gov. Now this procedure deals with registering new images as you are creating them. What about images that are older that you want to register? You can bulk register any old unpublished work on a single form as outlined above. The images do not have to be from the same calendar year and you can go back as far as 1989. For images that have already been published, you may now also bulk register. However, the images must be from the same calendar year and you must use the regular (long) Form VA. In this case, there are specific image deposit requirements that must be followed. For more information on bulk registering published work, visit: http://www.copyright.gov/circs/circ40.html#special and look at the requirements for bulk registration of published work. You may also register individual images using form VA and you must include two copies of the image “as published.” This is the procedure you will be required to use in the case of a copyright claim if the image was not previously registered. You may also use this method for important individual images that have been published. Keep in mind that the registration fee in these cases is $30.00 per image! By registering all of your new work as unpublished every two months, you will fall in the 90-day regulation of first publication and gain the full legal protection of the copyright laws. By registering every two months, your cost will be $180.00 in registration fees each year. This is the best and cheapest insurance you can buy. If you set up your systems so that new work is put in your copyright registration folder as you complete each assignment, copyright registration should take you thirty minutes or less every other month. It is time well spent.
James Cavanaugh graduated from the New England School of Photography in 1975 and established his first studio In Buffalo, NY. In 1986, Jim redirected his business and focused his marketing and creative efforts exclusively on architectural, interior and aerial photography. Today, he is recognized as a leading specialist in these areas. His clients include architects, engineers, interior designers, contractors, real estate developers, architectural product manufacturers and government agencies. His Images have been seen in many national and regional publications. Jim teaches "Professional Business Practices in Photography" at Villa Maria College in Buffalo and is also a frequent guest lecturer at the Rochester Institute of Technology. Jim is a member of the American Society of Media Photographers (ASMP). He is a former National Director and Vice-President of the association. He is the former Chairman of the Business Practices Committee of ASMP’s Architectural Photographers Specialty Group. He is also Past President of the Western New York Chapter of ASMP. Jim is an Allied member of the Buffalo/WNY Chapter of the American Institute of Architects. Jim is well known as a strong advocate of copyright issues and ethical business practices in photography. He has lectured nationwide on Copyright, Digital Photography and Business Practices. Email: jim@cavphoto.com
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