This information is based on US Copyright. Copyright laws
in other countries will differ.
Registering your images in the US – Why Register and How-To
Updated 2/3/2007
Something that a lot of photographers are failing to do here in the US, is
register their images with the Copyright Office. They think because their
images are automatically copyrighted as soon as the image is created, that they
are protected. I found out the hard way a couple of years ago that this isn't
totally true. Yes, our images are copyrighted and fall under the U.S. Federal
copyright laws. But, as I found out, being protected AND being able to
use that protection isn't always possible. Below are some reasons why I
register my images and why I try to encourage others to register as well.
I found out just how little the copyright protected me when I had one of my
images taken and used without my permission. A woman used one of my images for
a commercial ad in a major magazine. I saw the image on the first issue and
sent her a letter asking for the standard market value for using the image. She
refused. And claimed the image was hers. I could have taken her to court and
though both IP lawyers (Intellectual Property) said my case looked pretty clear
cut, the cost of doing this might run up to $50k if she wanted to be really
stubborn. I found out later that she was worth several million dollars, owned a
number of businesses, including an art studio and had at least one IP lawyer
available... which is why she probably did decide to be stubborn and see how
far I was willing to go. Well, I was ready to go all the way, until I hit a few
brick walls.
Even if it never went to court, just the cost of starting the proceedings was
going to run a few hundred to several thousand out of pocket. Several thousand
that I didn't really have to throw away if I didn't get at least my costs back.
And I didn't want to start it if I couldn't finish it. I did get her to pull
the picture from the magazine, although it still appeared in two issues out of
the 12 issues she had taken the ad out for, but that was about all. She never
admitted the image was not hers nor did she pay me.
Even though it was a bitter pill to swallow that I really couldn't do anything,
this did turn out to be a learning experience and a wake up call to me. During
this time period I was taking 10's of thousands of pictures a year, with most
of those being on my web site and viewed by a lot of people. I had always
thought I was covered by my copyright. What this first incident taught me was
though I am protected, to really be able to take advantage of that protection I
need to have my images registered. This is the key to everything having to do
with your copyright, and which you will see why it's so imporant a bit further
down this message. There are a number of Special benefits to being
registered.
To register your images you have to fill out a short form, put the images you
want to register on a CD and send them into the Copyright Office along with
$45. While it can be a little daunting the first time, it really is as easy as
it sounds.
There are some caveats though. You have to have registered your images BEFORE
an image is infringed upon to be able to get the special protection
registration gives you. If you publish your images (which is basically selling,
renting, leasing, etc. It doesn't mean showing them to the public, having them
on your web site or even having them published in a publication as long as you
weren't paid for it) you have 90 days after they were published to register.
After 90 days you can still register (and you should as you will have to
register them in any event to sue someone for infringement) you don't get the
special protection. If they have never been published, you can register them
anytime after creating them. If you do get infringed on and don't have your
image registered, but want to sue anyway, you have to register it before you
can sue, you just won't get the special benefits.
So what is the special benefit? It's worth all the trouble and effort it takes
to register (not that it's that much trouble). If your images are not
registered and you sue, you pay your legal fees and court costs. As I said
above, this expense can go pretty high in Federal Court. The IP lawyers
(Intellectual Property) don't come cheap and there is no small claim's in
Federal Court. Even if you win, there are no assurances that you will get a
judgment that will cover your costs. You might win and even get no judgment at
all. So your pride will be satisfied, but your pockets will be very empty...
unless you have deep pockets.
Now if the same thing happens and you have that image registered? Big
difference. The number one benefit is that if you sue and win, regardless of if
you get a judgment or not, the infringing party gets to pay ALL court costs and
legal fees for both of you. And this is paid to the court and lawyers,
which have their own way of making sure they get the money owed them. Also, if
your images are registered and it's found to be willful infringement, you don't
even have to prove damages to receive a judgement of between $750 and $30,000.
If someone infringes on your copyright and they find out the image is
registered, the chances are that they will agree to pay you what you want, just
to keep it out of court. I know this works too, because the 2nd time I was
infringed on for commercial use, that image was registered. I charged her 3
times the commercial rate of the image if it had been used legally (this is one
of the recommendations of a IP lawyer). I told her to check with an IP lawyer
on what the consequences were if I took her to court. I gave her information on
where she could pull up my copyright info on the Copyright Office website
database and gave her a deadline. Within the deadline I received a very nice
check for the amount I stipulated (3 times the standard commercial rate), plus
the deletion of the image from her web site.
When I was infringed on the 3rd time it worked the same way and I got paid. On
the 4th occasion, the woman decided to put her head in the sand and ignore me.
She had used several of my images over 70 times on her commercial web site,
making changes to them. There was no doubt that they were my images though. She
wouldn't respond to my e-mails nor did she respond to my registered letter. So
I went the next step. The DMCA letter to her hosting site.
Another tool available to copyright holders was created thinks to the internet
and the digital world. It was the creation of the Digital Millennium Copyright
Act of 1998. This was aimed at hosting sites and ISPs. In short, what it
does is provide an avenue for copyright holders to convince a hosting site or
ISP to block or take down those sites that are displaying copyrighted images
without permission. It also provides a way for those hosting sites and ISPs to
protect themselves from being sued for having copyrighted material on their
sites without their knowledge. If a copyright holder or their representative
(i.e. lawyer) sends a letter to the agent of the hosting site or ISP and tells
them that one of their web sites is infringing on their copyright, that site
has to either block or remove those images within a reasonable time or they
might also be held responsible in any infringement law suit that follows. What
they usually do is block or remove the images and notify the owner of the web
site. The owner has 10 days to respond and say that no, those images are not
infringing on a copyright. They say this under perjury of law (which means if
they lie, they have legally perjured themselves). The hosting site will then
put the images back up and tell the two parties that it's up to them to take it
to court and fight it out. It will take a court order to have them removed
after that.
In this latest case, since she would not take my images down from her web site
or even talk to me, I followed the outline provided by the DMCA information and
sent her hosting site (Earthlink in this case) a letter. I had to also declare
that under perjury of law that my statements were true and I was the copyright
holder of those images. After about 10 days, they took her whole web site down.
Then she answered my e-mail. She was still pretending she didn't know what I
was talking about though and even pretended that she took her web site down
herself until she had time to deal with it. She then refused to pay what I
required of her and wouldn't answer any of my mail again. So I took it the next
step.
I contacted my lawyer and turned it over to him. His first course of action was
to send a letter outlining the complaint, possible legal actions that could be
taken against her and recommended that she seek legal council on the matter.
Basically everything that I had told her in my letter, but now it came from an
IP lawyer. He also gave her a deadline to respond or we would file in Federal
Court. Half way to the deadline (I assume after she had consulted with a
lawyer) she contacted my lawyer and said she would pay my requested amount to
settle. A week later, I had a nice very big check from her. And another
copyright incident closed.
I don't lose any sleep over the occasional use of my images by teenagers (there
are a number of teenagers on MySpace that have my flower pictures linked as
backgrounds) and grandmothers and people that just think the images are cute
and want to use them for a screen saver or a background on their computer. This
kind of usage will never stop and is next to impossible to prevent anyway. I do
try to educate them if I find out people are doing this... even if it's not one
of my images. But when someone takes one of my images and uses it for profit or
for other commercial use, then I go after them with everything I can. I found
the biggest bullet I can have for this battle is having my images registered.
Any image that sees the light of day on your web site or in any Internet
message forum should be registered. Even if you think that your images are so
bad that no one would ever use them, you should register them. Every one of the
images of mine that were used without my permission were mostly poor quality
test shots I did when I was practicing or taking test shots. They were small,
low-resolution images. A couple had even been scanned from film. Maybe they
thought that there was less chance of anyone noticing or my finding them. But
I've yet to catch anyone using one of what I consider my good work.
You might never have a need to use the protection you get from being
registered, but the first time you do, you will be very glad you did. I know
I've made more from registering my images than I have playing the lottery. And
even more than I make from selling my images. A lot more.
Here is some information on registering your images.
The web site to go to is: http://www.copyright.gov/
The areas you want to look at are "About Copyright" and "How to
Register Your Work" in the "Visual Arts" section. Photos and
digital images fall under Visual Arts.
Under "Publications" and "Forms" you will find the VA form
that you need to fill out. If all of your images are the same category, either
all published images or all un-published images, you can use the VA Short form.
That is a single page. You can print it out from the "Forms" area and
fill it out in about 10 minutes. I have a full version of Acrobat so I can type
my information into the form on my computer first and then print it out. This
makes it easier for me. But it doesn't take long to fill out with a pen either.
There are several good references in the "Circulars and Brochures"
under "Publications" also.
Basically, what you want to do is put all of the images you want to register on
a CD. Put them as jpegs that are at least 800 pixels or so on the long side and
about 35k or so in size. If you only have a few images, you can make them
bigger if you want. The key is to have them big enough that if you have to
compare them with the image in question, there is no doubt that they are the
same. A LOT of images will fit on a CD.
Put a label on the CD with your name and address and the same title you gave
the collection of images on the VA Form.
You can put the images in folders on the CD if you want. I do this if I have
several different categories, like Scenic, Dog Show, Indoors, etc. If your
images are published, send two CDs. If they are not published, you only have to
send one CD. Make sure your CD is protected. I had one get broke and it slowed
down the certificate of registration by about 3 months because I had to send
another CD and though the original day it was received counted as the
registration, it still went to the back of the line for processing.
Fill out the form. Write a $45 check (the price went up in 2006). Send it all
to the Copyright Office. Use Delivery Confirmation. With Delivery Confirmation
you can look up on the USPS web site and see when your package was delivered.
When the info is posted that it was delivered, I print the screen off and put
it in my files with a copy of the form and one CD. The day they are shown as
delivered is the day your registration takes affect. In about 3 months you will
get a certificate of registration. A couple of months or so after that, you can
find your registration in the Copyright Office website database.
That's about all there is to it. I send in a CD about every 3 to 6 months,
depending on how many images I've shot. If I do a big event or one that has
images on it that I think might be very popular, I'll send in what I have up to
that point and register them.
Also, I want to point out that I'm not a lawyer of any kind. I've done a lot of
reading and talked to a couple of IP lawyers about this. But I might have
something wrong, or it could have changed or I might have missed something. In
fact, there is a good chance that all of the above is true although I try to be
as accurate as I can. If you have really important images, or want to make real
sure it's all done right and legally, there are lots of IP lawyers that will do
this as a service. I'm sure they will be glad to help you.
Some other links of interest:
Bert P. Krages, IP Lawyer and author of several books. Also the lawyer I used.
He has some information on his web site.
http://www.krages.com/copy1.htm
The DeBoff Law Group. Author of more books about copyright and information on
their web site. My lawyer, Bert Krages, shares building space with the DeBoff
Law Group. http://www.dubofflaw.com/
US Code Title 17,512, relating to limitation to online images:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html
Frequently Asked Questions (and Answers) about DMCA Safe Harbor Provisions:
http://www.chillingeffects.org/dmca512/faq.cgi
This link goes to a page that gives guidence, tools and more resoruces on filing a DMCA and what to do if you receive a DMCA yourself.
http://wiht.link/dmca-generator
The 7 Deadly Myths of Internet Copyright: http://www.glamourmodels.com/resources/articles/070903.html
And there are a bunch more out there if you do searches on the Internet.
I hope this is of help and also encourages a lot of people to get their images
registered. Even if you never make any money from it, just having the clout it
gives you to tell someone to take your images off their web site or to quit
using them really feels good. Especially when it's someone that normally gets
away with using other's images.
Mike