Home | Copyright | Photographers: New Copyright Registration Laws Are Going into Effect
Business Copyright Featured

Photographers: New Copyright Registration Laws Are Going into Effect

The U.S. Copyright Office has announced changes to the way it will accept applications for registration of photographs. Effective February 20, 2018, these changes are intended to streamline the registration process for photographers, as well as the Copyright Office staff who review them. Although the new requirements are not especially onerous, they are different and will require some getting used to. As of February 20, 2018 the Office will reject applications filed under the old rules (and because application fees are nonrefundable, an incorrect filing could prove to be a costly mistake).

copyright law
You have copyright on your images the moment they are created, but that isn’t that helpful until the copyrights are registered.

A Quick Primer on Copyright Registration

Recall that although copyright protection is automatic upon the creation of an eligible work, in the United States, copyright registration affords additional benefits, such as the ability to collect statutory damages and attorney’s fees. Most importantly, a copyright registration (or in some cases, merely an application on file with the Copyright Office) is required to bring a copyright infringement lawsuit. Thus, while you have copyright protection in your images from the moment they are created, as a practical matter, it isn’t all that helpful until the copyrights are registered. Because fighting copyright infringement is already an uphill battle, it has become axiomatic that photographers should register their works.

You can read more about the benefits of copyright registration in Steve Schlackman’s article Why Is Copyright Registration Important? Ask Urban Outfitters.

copyright registration
Under the new unpublished group option, there is a limit of 750 images per application.

What’s Changed: The Basics

Under the old system, the Copyright Office offered three ways to register photographs: as a single image (which would be either published or unpublished), a collection of unpublished photographs, and a group of published photographs. Although applications for single image registrations and unpublished collections could be filed online, groups of published works still had to be registered on paper forms, that often took much longer to process than applications filed electronically (there was a pilot program that allowed some electronic applications for published groups, but that program is now obsolete given the new rules).

The new rules both giveth and taketh away. The unpublished collection option has been eliminated and replaced with an unpublished group option, and the applications for published groups must now be filed online — paper applications will no longer be accepted.

So, everything is online now, so that’s good. But, here’s the rub: the old unpublished collection had no limit to the number of images you could submit on one application. Under the new unpublished group option, there is a limit of 750 images per application (the same limit that has long applied to published groups). That means that for some photographers, the cost of copyright registration will go up because what used to be able to go in as a single application will now have to be split into batches of 750, which each application requiring a separate fee.

copyright registration
the Copyright Office now requires a more detailed explanation of images included in an unpublished group.

The Rules: Unpublished Photographs

Many of the rules for registering unpublished photographs as a group (the new way) are the same as they were for unpublished collections (the old way).

All of the works in the group must be unpublished photographs, they must have been created by the same author, and the copyright claimant for each image must be the same person or organization. There must also be a title for the group as a whole, which can be simple but should be sufficiently descriptive that it properly identifies the works in the registration, something like “Chris Reed Photography (Fourth Quarter 2018)” or “Chris Reed Photography (London 2017).”

As noted above, the new unpublished group registration option is limited to 750 images per application. The other big change is that the Copyright Office now requires a more detailed explanation of the images included in the group, something that has long been required for published works, but has now been applied to unpublished works as well. The Copyright Office now requires a “sequentially numbered list containing a title and file name for each photograph in the group.”

Fortunately, the Office has prepared a template (XLS file) to help guide photographers through the process of compiling the list. Although the list is fairly straightforward, some may balk at the requirement that each image be assigned a title. If you have given your images individual titles, then by all means, use them; but if you haven’t, no need to panic. It is sufficient to use the filename that your camera automatically assigns to each image. I use the filename established for each image during the import phase of my workflow, where I instruct Lightroom to append a description of the subject to the camera’s native filename. For instance, an image from a recent trip to Oregon was called 20170811-Oregon2017-1693.CR2, which is also the “title” of the image for copyright registration purposes.

Finally, the Copyright Office now requires that deposit copies be submitted electronically — either online (ideally as a single ZIP file, though that file cannot exceed 500 megabytes) or on physical media such as a DVD or flash drive. The images must be in JPEG, GIF, or TIFF format, and must be accompanied by a list of file names that link them to the title list (thus, the easiest way to go about creating that list is to use the same template).

copyright registration
Published photographs follow similar guidelines as unpublished, except that they must have been published in the same year.

The Rules: Published Photographs

The copyright registration rules for filing applications for a group of published photographs are more or less the same as described above, except that the works must have been published in the same calendar year, and the applicant must provide the date of first publication for each image in the group, neither of which are new requirements. The only difference now is that such applications must be filed online, whereas before they could only be filed on paper forms.

As with the unpublished groups, the published group application also requires that the applicant submit a title list that is essentially the same as the unpublished group title list, except it contains an additional column on which to include the month and year of publication. Again, the Office has prepared a template to help guide copyright owners through the new process.

copyright law
With these changes, what hasn’t changed is the struggle of what is published vs unpublished.

The Gift that Keeps on Giving: Defining Published versus Unpublished

One thing that hasn’t changed under the new rules is the familiar problem of having to decide what is published and what is unpublished. The distinction has long been the bane of photographers everywhere, because the definition of “publication” in the Copyright Act is not particularly helpful, especially in the internet age.

As I wrote in my 2014 book:

Although there are various views throughout the copyright community, one dominant school of thought, and the one I follow personally, is that if you post an image to the internet and encourage or allow users to make copies of the image—either electronically or by purchasing prints or products bearing the image, or something like that—the image is published. If, however, you make it explicit that making copies is prohibited (through copyright notices or terms of use that expressly limit the user’s rights) and/or take technical steps to prevent people from making copies (through technical measures such as disabling the right-click function), then the images may be unpublished.

Doing away with the distinction has been an on-again-off-again focus for many of the photographer advocacy organizations, but as I also wrote in my 2014 book, I don’t think that’s a great idea:

Although the concept of “publication” might seem arcane, the distinction is important for more than just determining which form to file with the Copyright Office. In fact, it comes up in several places throughout copyright law. For example, whether a work is published or unpublished is a consideration in some fair use cases, and certain limitations on the copyright owner’s exclusive rights apply only to published works. For works made for hire, the length of copyright protection is determined by the publication date, and publication status also governs the type of deposit materials that a copyright owner is required to submit along with his or her registration (although for most photographers the rules on deposit are generally the same regardless of whether the work is published or unpublished).

 

About the author

Chris Reed

Chris Reed is a Los Angeles-based photographer and lawyer. He practices copyright law in the  media and entertainment industries and is the author of Copyright Workflow for Photographers: Protecting, Managing, and Sharing Digital Images from Peachpit Press.

Add Comment

Click here to post a comment

The Latest From Artrepreneur

  • Immigrant Artist Jan Sawka, Global Icon

    Jan Sawka is an immigrant artist who migrated to the United States from Poland in the 1970s. Here Hanna Sawka discusses her father's work.The post Immigrant Artist Jan Sawka, Global Icon appeared first on Artrepreneur. […]

  • Artist Bang Geul Han on Feminist Art

    Artist Bang Geul Han discusses Electronic Integrated Art, major influences and the trouble with being an interdisciplinary artist.The post Artist Bang Geul Han on Feminist Art appeared first on Artrepreneur. […]

  • An Interview with Debi Cornwall

    Photographer Debi Cornwall talks about being a civil rights attorney, CFEVA, and how she got started with photography.The post An Interview with Debi Cornwall appeared first on Artrepreneur. […]

  • We’re Still Feeling These Three Clio-Winning Ad Campaigns

    In preparation for the 2018 Clio Awards, we take a look back at the winning ad campaigns of the last three years and what made them so successful.The post We’re Still Feeling These Three Clio-Winning Ad Campaigns appeared first on Artrepreneur. […]

  • How Artists Have Responded to the Me Too Movement

    The Me Too movement has had profound effects across all forms of media and has inspired countless male and female artists.The post How Artists Have Responded to the Me Too Movement appeared first on Artrepreneur. […]

  • An Interview With Syd Carpenter

    Sculptor Syd Carpenter on working as an ornamental gardener, Fellowship programs and the challenges of being a Philadelphia artist.The post An Interview With Syd Carpenter appeared first on Artrepreneur. […]

  • Mastering Your Pitch Presentation

    Your best ideas are only as good as how well you can sell them, and mastering the art of the pitch presentation takes time, research, and devotion.The post Mastering Your Pitch Presentation appeared first on Artrepreneur. […]

  • How to Land Top Freelance Gigs

    From cementing your personal branding to building a digital portfolio highlighting your best work, here's how you land the top freelance gigs available.The post How to Land Top Freelance Gigs appeared first on Artrepreneur. […]

  • Bill Carroll: Career Advice from the Artist, Professor & EFA Studios Director

    Pratt Institute professor and EFA director Bill Carroll talks about his career trajectory, lessons from the art market, and the fundamental shifts he's made in the pursuit of his art.The post Bill Carroll: Career Advice from the Artist, Professor […]

  • Develop an Art Catalog, Sell More Work

    From keeping an art archive to keep your studio organized to developing a sleek art catalog for sales, artists should incorporate an organizational routine if they're looking to grow their business.The post Develop an Art Catalog, Sell More Work […]

  • How to Create the Perfect Pitch Deck

    When preparing to present your services to a potential client, what should go into your pitch deck? From services offered to payment schedules, here's how to create a deck that lands the gig.The post How to Create the Perfect Pitch Deck appeared […]

  • How Museum Hotels Like 21c Serve Art to Their Local Communities

    Museum hotels like 21c are finding new ways to engage with their local art communities. Here's how artists can work collaboratively with this innovative new concept.The post How Museum Hotels Like 21c Serve Art to Their Local Communities appeared […]

  • How to Host a Meetup for Local Artists

    Organizing an art meetup is an excellent way to build community. We sit down with the founders of successful initiatives like the Portland Artist Network and the Rural America Contemporary Art Group.The post How to Host a Meetup for Local Artists […]

  • AR as Visual Narrative: In Conversation with Todd Berreth

    NC State University professor Todd Berreth discusses his evolution as an artist and technologist, with a focus on exploring visual narrative within an AR framework.The post AR as Visual Narrative: In Conversation with Todd Berreth appeared first on […]

  • How This New Startup is Elevating AR Creatives

    As the prevalence of augmented reality technology continues to rise, more creatives look to incorporate it into their practice. Companies like Poplar are looking to support AR creatives.The post How This New Startup is Elevating AR Creatives […]

  • Ahol Sniffs Glue on Retail Partnerships and Never Selling Out

    Artist Ahol Sniffs Glue shares insights on managing your brand, taking on retail partnerships and embracing the hustle.The post Ahol Sniffs Glue on Retail Partnerships and Never Selling Out appeared first on Artrepreneur. […]

  • What is Participatory Design in the Arts?

    Introducing principles of participatory design and participatory art into your work can create a more personal experience for your audience, while also promoting repeated viewings for new experiences.The post What is Participatory Design in the […]

  • Let’s Get Virtual! VR Innovations Bridge Fine Arts & Technology

    How is VR and AR affecting the fine arts sector? In a conversation with [email protected] radio, Grace Cho and Todd Berreth discuss emerging trends in VR art.The post Let’s Get Virtual! VR Innovations Bridge Fine Arts & Technology appeared first on […]

  • Mi-Kyoung Lee on Developing a Practice Far From Home

    Born in South Korea, Philadelphia-based artist Mi-Kyoung Lee weaves fiber and plastic to create ethereal sculptures that meditate on labor and domesticity.The post Mi-Kyoung Lee on Developing a Practice Far From Home appeared first on Artrepreneur. […]

  • How an Artist and Musician Collab Can Help Double Your Audience

    From album cover art to costumes and set designs, pairing an artist and musician for an ongoing collaboration is a wonderful way to expand both their networks.The post How an Artist and Musician Collab Can Help Double Your Audience appeared first on […]