Only a small percentage of photographers register their images with the Copyright Office. ASMP is working to change this, but ultimately it is up to you, as the creator of your work, to take action and register. Our power defending copyright law for the independent working artist is increased with each copyright registration you file.
Unless you have signed a work-made-for-hire agreement or executed a transfer of copyright, you own the copyrights to your work whether you register the images with the copyright office or not. However, as an independent businessperson, ASMP strongly recommends you take this additional step to protect your work and your livelihood.
What does registration do for you?
- You have the full weight of the law on your side if you are infringed.
- You can file an infringement suit.
- You can more easily secure an attorney to take your infringement case.
- If you register your work prior to infringement (or within three months of first publication), you can ask for statutory damages and attorney fees if you win an infringement case.
- You can use your registration as leverage to get paid by defaulting clients.
- You have added protection against anyone claiming your work is an “orphaned” work.
- You are adding value to the services you provide your clients by protecting the investment they have made.
Published or unpublished?
The Copyright Office requires that published and unpublished work be registered separately. For photographers, this is difficult. We complete a project, a handful of selects are published by our client in a brochure, on a website, or in a magazine. We often do not know if or when the selects are actually published. The outtakes are not published. The safest and easiest work around is to register each project before you deliver the work to the client and register the images as “unpublished.”
When it comes to photographs you create as self assignments, personal projects or portfolio pieces, make sure you register these works prior to putting the images on your web site or doing anything else that might constitute publication.
Read this chapter for more details on published vs. unpublished.
What can I do about my unregistered legacy archives?
When you first start registering your work, it is easy to get overwhelmed with your legacy images. Many photographers do not know what to do with a ten- or twenty-year archive of unregistered images. They get overwhelmed and then do nothing. Do not let this keep you from getting started. Start today with a process for registering all of your new work. Then when you have time, go back and start registering the older work you deem the most important. Remember that published photographs are much more likely to be infringed than unpublished ones and probably need protection because of that. Read this chapter for details on registering published images.
A common misconception about the three-month window
The Copyright Office gives you a three-month window from the date of first publication to register any “published” images and still receive the full benefit of copyright law.
A common misinterpretation of this rule is registering all images produced in a three month time period, whether published or unpublished, as one “unpublished” collection. This is not a legal registration and should be avoided. You cannot knowingly register images that are published as unpublished.
The three-month window allows you to register “published” images up to three months after the date of first publication (not the date of creation) and receive the full benefits of copyright law. Those published images, however, must be registered as “published.” Images that are “unpublished” must be registered in a separate registration, and the critical time factor is that they must be registered before the infringement takes place in order to be eligible for an award of statutory damages and attorneys fees.
Remember, the general rule is that, to be eligible for the full benefits of copyright law, you must register before an infringement. The only exception is if you register published images within three months after the date of first publication. It is safer, and it is ASMP’s recommendation, to register as soon as possible after creation and before publication.