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You have tens of thousands of images taken for your photography business and you want to make sure your work is protected. Do you have to register every one with the U.S. Copyright Office for protection? How do you register your work? Is there a difference if you have published the work or not?
Let’s take a look at how copyright works with your photography, the difference from a trademark, the process and the advantages you can gain!
To start, let’s go over the basics about copyright. According to the U.S. Copyright Office a copyright is, “A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work.”
What does that mean for you and your photos? It means that you, as the creator, are the original copyright owner of the photo and can control any future use of the photo. The exception being if you are “work-for-hire”, where the photo will belong to another depending on the situation. Some examples are if you are working for a newspaper as a photojournalist or if you have contracted your right to another.
Since in most cases your rights attach the moment the photo is created, registering the photo is not a requirement for a copyright. The copyright is immediate upon the release of the shutter. However, registration may give you additional benefits.
Additional Benefits of Registering with the Copyright Office
If you have not registered the photo before it has been infringed, or within three months of its publication, then you can only be awarded actual damages. Actual damages are paid for your proven loss from the infringement. If the photo was registered then you could be awarded statutory damages, which will be decided by the court in accordance with a range set by statute.
Published vs. Unpublished Work
Both published and unpublished work may be registered with the Copyright Office. The difference is how you register the work.
What is Publication?
Publication of a work is, “the distribution of copies of a work – in this case, a photograph—to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of people for purposes of further distribution or public display also constitutes publication. However, a public display of a photograph does not in itself constitute publication.” This means that publication has occurred when you provide your photo to the client.
Online dissemination of an image is not specifically addressed in the above definition. As such, the Copyright Office asks the photographer to determine whether works are published.
Great, so what does that mean? There have been a handful of cases to address whether internet transmission of a photo counts as publication. It appears many courts have found that publication occurs with distribution. This means that if website users are authorized to make copies of your photos or download them you have “distributed” the photos, and thus they will be considered “published”.
Copyrighting Published Work
One published work, or a package of published works, can be registered by filing a single application and paying one fee. Examples of a package of published works are a set of photos used for a calendar or photos used for a book. Any additional published work will require it’s own application and fee.
If you have unpublished works you also want to register you will have to do so separately.
Copyrighting Unpublished Work
One unpublished work, or a collection of unpublished works, can be registered by filing a single application and paying one fee. According to the Copyright Office, for a collection you must:
- neatly assemble the photographs;
- provide a collection title;
- be the copyright claimant for all the photos; and
- have either created or contributed to all the photos.
How to Register Your Images
- File an application at Copyright.gov
- Pay your fee
- Submit your deposit
In sum, all of your photos are copyrighted, whether you have registered them or not. However, registering with the copyright office may benefit you in an infringement case.
Copyright versus Trademark for Photography Businesses