As we all know far too well, our copyright system does not work well for photographers, especially high volume photographers. Determining what work to register and when to do so is confusing. The registration process is archaic, costly and time-consuming. Determining whether and when work has been published as required by copyright law can be incredibly difficult and getting the determination wrong can result in the invalidation of a registration in a subsequent infringement action. As a result of these and other problems, few photographers register their works. And failure to register one’s photographs with the Copyright Office is a barrier to enjoying the legal protections in the copyright law when a photographer’s works are infringed.
ASMP is diligently working to fix current problems in our copyright system while also taking steps to help create a “next generation” system that works for all visual artists.
Some of the necessary changes to the current system can be achieved by the Copyright Office exercising its current powers; other changes require Congress passing amendments to the copyright law. Securing these essential regulatory and statutory changes is not a simple task. Today, ASMP is advocating on multiple fronts at once:
- ASMP is urging the Copyright Office to exercise its regulatory authority to help photographers with immediate changes to their current registration policies and procedures. We recently won a huge victory when the Copyright Office accepted our arguments that raising fees for group registration of photographs from $55 to $100 was unjustified.
- ASMP is also working with Congress to draft legislation to address those issues that require changes to the copyright law. ASMP had a seat at the table in drafting the Copyright Office Modernization Act of 2020 and lobbied for inclusion of needed statutory reforms to both fix current issues and prepare the law for future modernization. If passed, the Act would address many of our specific needs–including, for example, allowing us to file group registrations containing published and unpublished works. We expect it to be introduced by Senator Thom Tillis this spring, and will work to further amend and improve the legislation.
- Looking to the future, the Copyright Office is in a multi-year process of modernizing its registration system and effectively rebuilding it from scratch. ASMP has made it clear to the Copyright Office exactly what photographers want in such a “next generation” copyright registration system. Such a system would include, for example, an option for photographers to simply pay a yearly subscription fee and the ability to quickly upload and register images with the push of a button from within the software they use every day, such as Lightroom or Capture One.
- ASMP also educates both the Copyright Office and Congress on the “real workflow” issues facing photographers working in today’s on-demand digital world. In a recent Comment on Online Publication, ASMP explained to the Copyright Office why current statutory requirements that photographers list the date and nation of first “publication” of every work they register is extremely burdensome to photographers, and what the Copyright Office should do to fix the problem (from clarifying the definition to making the listing of publication optional).
- Finally, ASMP continues its longstanding effort to pass the CASE Act, which would give photographers an easier, low-cost alternative process for enforcing their copyright against infringements.
ASMP has taken a lead role on these issues, both on its own and working with the Coalition of Visual Artists (an informal alliance of photography associations and graphic artist groups). Credit is due to ASMP executive director Tom Kennedy, ASMP member Sean Fitzgerald, and ASMP advocacy counsel Mike Klipper who are leading these aforementioned efforts on behalf of all ASMP members. Sean, who was a lawyer before switching to photography, deserves a special nod for both his frequent trips to Washington to participate in the previously mentioned roundtable discussions conducted by the Senate Judiciary Committee regarding the Copyright Office Modernization Act and for authoring key submissions to the Copyright Office, including most recently the filing made by ASMP and other members of the Visual Artists Coalition dealing with online publication issues in which Sean described the myriad “publication problems” facing visual artists, as well as possible regulatory and statutory fixes to those problems.