A 2005 change in the Copyright Office’s Regulations allows the preregistration of certain photographs made for use in advertising and marketing. This regulation was created to help protect certain kinds of works that are susceptible to infringement before they have been put into final form, such as movies. The regulation allows for a simple, on-line “preregistration” of these works, to be followed by complete registration.
Preregistration can be useful in a few, very specific circumstances where there is a risk of infringement before there is an opportunity to register. For most routine situations, however, it is an expensive and unnecessary process. In addition, it has certain risks.
No substitute for registration. You need to understand that if you choose to preregister, you must complete a regular application for registration promptly. To be fully protected following a preregistration, the regulation requires that you file a regular copyright registration within one month of discovering an infringement and, in any event, no later than three months after first publication. If you do not follow a preregistration with a regular registration within that time period, you will be permanently and irrevocably barred from eligibility for statutory damages and attorney’s fees in any infringement action relating to the photos that you prepregistered. That is true even if you subsequently register the photos before they are infringed.
We have read discussions that claim a photographer can preregister and then wait a long period of time until discovering an infringement, at which point the photographer supposedly has one month to register the photo to be eligible to ask the court for statutory damages and counsel fees. That information is simply incorrect. If you preregister any photos and then fail to file a regular copyright registration for them within three months after first publication, you will lose your right to ask for statutory damages and counsel fees for infringements of those photos forever. This result has been discussed and confirmed with senior Copyright Office staff, including the Copyright Office’s General Counsel.
There are other risks that go along with preregistration if full registration is not made within the required time schedule, but the above is the one that has been the subject of misinformation.
The bottom line is that it is crucial that you understand that, if you preregister any of your photographs, you must complete a full copyright registration of those photographs either within three months of first publication or within one month of discovering an infringement, whichever comes first, or you will permanently lose important copyright protections.