Larry Zerner (www.zernerlaw.com), who holds a B.A. in Theater and a law degree from Loyola Law School in Los Angeles, has been earning a reputation as a top Los Angeles entertainment attorney. After graduating from law school in 1991, Larry spent nine years working for and learning from his mentors — top publishing and intellectual property attorney, author and columnist Jonathan Kirsch and top litigator Dennis Mitchell — before going out on his own. Larry is a regular speaker on legal issues at entertainment conferences such as Creative Screenwriter Expo, Final Draft’s Screenwriter Showcase and Belma Johnson’s Dreamnet Workshop. Recently, Larry was interviewed by the CBC (Canadian Broadcasting Company) Today Show on legal issues relating to the 2007-2008 writers’ strike. Larry has allowed Pictureline to republish some of his content that is specific to photographers: recognizing the excuses of not registering images with the US Copyright Office and what can be the result. [Special thanks to Matt Kuhns (www.matthewkuhnsphotography.com), also from the Los Angeles area for the use of his images for this article.]
Larry Zerner: "As a copyright lawyer for the past 20 years, I’ve spoken to a lot of photographers whose work has been infringed. And because I’m a copyright lawyer, I’m always encouraging photographers to register their photographs with the U.S. Copyright Office. Yet so often when speaking to photographers, I hear a litany of excuses over why they can’t register the photographs with the copyright office.
"It’s too expensive." "It’s too difficult." "Copyright protection exists upon creation, so I can wait until after the infringement to register the photo."
"All of these excuses are not only wrong, but they are potentially costing the photographer tens of thousands of dollars. This article will explain why registering your photos with the Copyright Office has never been easier. And how a registration could mean the difference between getting rich, or getting ripped-off.
EXCUSE #1 "IT'S TOO EXPENSIVE"
"Many photographers are under the mistaken impression that every photograph has to be registered separately. At $35 a pop, that would add up really quickly. But that is just not true. Using Form GR/PPH/CON, a photographer can register up to 750 published photographs for the $35 fee. The requirements are that (a) all the photographs are by the same photographer (if an employer for hire is named as author, only one photographer’s work can be included); (b) all the photographs are published in the same calendar year; and (c) all the photographs have the same copyright claimant. If you would like to register more than 750 photographs, you can still do so with a single filing fee using Form VA if you identify the date of publication for each photograph on the images deposited with the application.
EXCUSE #2 "IT'S TOO DIFFICULT"
"Anyone who says that registration is too difficult simply hasn’t done it. It can be time consuming at times, but if you know your name, address, citizenship, and the year of creation of the photos, you have the intelligence to register your photos with the copyright office. The Copyright Office has a number of circulars that explain how to fill out the form, including a few specifically addressed to photographers. And the Copyright Office is currently allowing, on a trial basis, electronic registration of groups of published photographs. To be eligible for this trial, call the Visual Arts Division at (202) 707-8202.
"One thing you should be aware of. The Copyright Office makes a distinction between "published" and "unpublished works." A work is considered "published" not only if it was distributed to the public, but also if the photographer distributed copies to a group of people for purposes of further distribution or public display. This is important for paparazzi photographers who might immediately send out a group of photos to various magazines or websites for purchase. Even if all of them are not used, they can all be considered "published."
EXCUSE #3 – "I CAN WAIT UNTIL AFTER THE INFRINGEMENT TO REGISTER THE PHOTO."
"It is true that the photographer owns the copyright immediately upon creation. But as a practical matter, registration is imperative if you want to be able to sue someone for infringing your work. That is because the Copyright Act gives the photographer different forms of relief, depending on whether the photo was registered at the time of the infringement (or within 90 days of the photo’s publication).
"If a registered work is infringed, the photographer can claim statutory damages of up to $30,000, and up to $150,000 if willful infringement is proved. The photographer can also recover his attorney’s fees, which easily add up to tens of thousands of dollars.
"But if the photographer did not register the photo before the infringement (or within 90 days of publication), then he can only recover his actual damages, plus any profits of the Defendant attributable to the infringement.
Let’s take a hypothetical case and see how that plays out.
"Mary, an aspiring nature photographer, posts photographs of her trip to the Grand Canyon on her blog. One of her photos is taken by an unscrupulous ad agency, and used in the background for a series of travel brochures.
SCENARIO #1 – MARY DID NOT REGISTER THE PHOTOGRAPH
"If Mary wants to sue, all she could get would be her actual damages Because Mary is not yet an established photographer, her best sale to date was for $1,000. So, if she sued, the most she could get would be $1,000 (or possibly some small multiple of that). But because her attorney wants $10,000 to file the case, it doesn’t make economic sense for her to file the lawsuit. It will cost her more than she would ever recover.
"Although, in theory Mary could also obtain the profits of the infringer related to use of the photograph, the reality is that proving those profits would be very expensive, and would almost certainly cost more in expert’s fees and attorney’s fees, then she would ever recover. As a result, Mary does not file a lawsuit and end up recovering nothing.
SCENARIO #2 – MARY DID REGISTER THE PHOTOGRAPH
"In this case, Mary can now seek statutory damages for willful infringement. And she can obtain attorney’s fees in the lawsuit. She hires a lawyer (who is now willing to work on a contingency fee basis). The lawyer writes a letter to the advertising agency. A little back and forth and the matter is settled for $20,000 a few weeks later. Not a fortune, but a nice payday for the use of one photograph.
"Now obviously, this scenario is just an example and the results will change depending on a number of factors. But, as a general rule, the $35 spent on registering your photos with the Copyright Office will be the best money you ever spent."
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