DPP Home Business What Do You Really Know About Copyright Law?

Tuesday, February 23, 2010

What Do You Really Know About Copyright Law?

Legal issues about your photography can be confusing, but becoming knowledgeable in the area is part of being a professional in the 21st century

Finally, these rights have tremendous longevity. The current term of copyright protection under the U.S. copyright law is 70 years after the author’s death. For works made for hire, the current term is the shorter of 120 years from the date of creation or 95 years from first publication. Given the length of time that copyrights exist—well beyond our lifetime—it’s easy to understand why it’s so important to register and perfect those rights so that we, and our heirs, can enjoy the benefits of those rights.

Registration Is Essential
One of the few concepts that many photographers in the U.S. understand about copyright law is the importance of registration, in part because of yeoman efforts by various photographic organizations to educate their membership as to the importance and value of copyrights. However, there’s still some confusion about precisely why registration is important.

For starters, registration is a prerequisite if you want to enforce your copyrights. Under the Copyright Act, a copyright owner must obtain a registration before an infringement action may be maintained in the courts. Some federal courts—which are the only place where copyright infringement actions may be maintained—have even explained this as a jurisdictional prerequisite. Even some lawyers have ignored this requirement, only to find their clients’ infringement actions dismissed.

In an effort to encourage artists and authors to timely register their copyrights, Congress included something of an incentive in the Copyright Act: Owners whose works are timely registered will be entitled to recover statu-tory damages and attorney’s fees. In many cases, it can be difficult, if not impossible, to determine the actual damages associated with infringement of a photograph. The difficulty associated with ascertaining actual damages may even result in courts awarding what amounts to a reasonable royalty for infringement. Recognizing the difficulty associated with proving actual damages for copyright infringement, the Copyright Act authorizes courts to award statutory damages ranging from $750 to $30,000 per work infringed, and where the owner proves that infringement was willful, the award of statutory damages may be increased up to a maximum of $150,000 per work. The award of attorney’s fees may also help defray the costs associated with the enforcement action.

However, given the way in which Congress drafted the relevant portion of the Copyright Act, the incentive appears as a disincentive. In other words, owners whose works aren’t registered before infringement won’t be able to recover statutory damages or attorney’s fees.

The source of the confusion, beyond the negative language used in this particular aspect of the Copyright Act, is the existence of a grace period for instances of infringement after first publication, provided that registration is made within three months of first publication. The problem, however, is that more than a few photographers have misinterpreted the grace period to mean that statutory damages and attorney’s fees will be available, provided registration is made within three months of infringement, rather than first publication. Both the language of the statute and the meaning of the term “publication” (which, according to some courts, means publication with the owner’s consent) tend to negate the possibility that infringement could qualify as the first publication.

While some photographers will, as a matter of habit, burn images to disc and register those images every three months, the better approach is to register as soon as possible after completing an assignment or project. Doing so will help ensure that any infringement takes place after registration.

Deciphering The Online “Publication” Enigma
As long as we’re talking about publication, we also should take a moment to consider what publication means under the Copyright Act, at least in the context of the online world. As shown here, whether an image is considered published or unpublished has a tremendous impact on what a photographer stands to recover when enforcing his or her copyrights.


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