Recently, I was approached by a photographer about an infringement matter. It was a good-looking case, until I checked the registration. The work had been registered as unpublished, but it was admittedly published before being registered; in other words, it was knowingly registered wrongly. That makes a big “No, can’t take this on contingency” from me.
When I explained this to the photographer, the response was surprise if not full-on skepticism. Seems the photographer had been told, allegedly from several sources including at least one major national photographers’ organization, that one could register a work as unpublished if registered within 90 days of publication.
Yikes. The amount of wrong there is worrisome.
Let me make this perfectly clear: one must never knowingly register a published work as unpublished. Ever. There is no way around it, short of lying, and lying is a very, very bad idea. Full stop.
Registering under the wrong publication status is bad; but registering work you know was published as unpublished is a fast route to having the registration voided for that work. Now, if you are litigating and you get busted for the “error,” you will quite possibly (I’d say probably) end up paying the other side’s attorneys’ fees when you lose your case. Ouch.
Look, we pretty much all hate the published/unpublished thing—lawyers, artists, everyone. It’s an administrative hoop that is, in my opinion, arguably outdated and unnecessary. But, it is very much still the law.
When a work is published, one must provide the US Copyright Office with additional information about that work in its registration application (date and place of first publication). That data is included in the certificate and USCO records. Registering the work as unpublished omits this information. That’s why it’s particularly bad.
So, where did this photographer’s misinformation come from? Hard to tell, but I suspect it was started by someone trying to get around certain limitations in order to register more works for less money. See, before the recent-ish changes in registration procedures, one could register a virtually unlimited number of unpublished photos in one “unpublished collection” registration. The limit was one of upload size, not number of works. However, published photos were limited to 750 per group registration (as well as other limiting factors, like the photos must be published in the same calendar year). In other words, it would cost more to register 1500 published photos than unpublished ones.
This irked photographers. I know, I’ve been asked at talks I’ve given about copyright registration, back when those rules applied, “Can’t I just say the work is unpublished so I can do everything in one registration and save money? Who’s gonna know?” Of course, I pointed out the errors of that line of thinking, but I’m sure some may have errantly given it a try. Thing is, the USCO relies on you being honest so if you do misrepresent the work as unpublished, you will still get your certificate. But that doesn’t mean it will hold up in court. Anyhoo, once someone did it and got his* certificate, the info likely got shared and, boom, bad info gets out to the photo world.
Now, the rules are more equal. There is no more “unpublished collection” for photographs but rather Group Registration of Unpublished Photographs (GRUPH). That registration, like for published photos, is limited to 750. Like it or not. So, the incentive to misrepresent a work’s status is much less now.
The 90 days thing, though, in the photographer’s response above? Well, that is extra rules-bolluxing. Contrary to popular thought, there is no 90-day anything in copyright registration for photographs. There is, however, the 3-calendar-month safe harbor for registering published photographs. It is NOT 90 days, but many people have wrongly said/written it as such. Remember, three months does not equal 90 days (hello, February) and you can get bitten if you get that wrong. Anyway, I think that safe harbor got mixed into the mess and we end up with this strange idea that there is a way around the publication status-related registration rules.
You can fix bad registrations, but it is a process and it will cost you both USCO and your own attorney’s fees. Oh, and when the error is like what I’ve been talking about here, you’re almost surely going to get a new effective date, too (that can affect statutory damages for some cases).
This stuff can be complicated. Remember, while your creative friends may think they know the rules, if you have any questions regarding your registrations, your best bet is to hire a copyright attorney for legal advice.
Leslie – Do you have a go-to definition for “published” and/or “unpublished” that can be easily understood. I know there is language in the law as to the definition, but from my readings there is much debate about what the definitions really mean in practical terms. For instance, “Images I put up on my website as a sample portfolio of my work”, vs “Images I put up on my website that are offered for sale”. Many other examples exist. Would love to hear your input. (Apologies, if you have covered this before)
Sadly, no. This is one of the great frustrations for us lawyers in trying to teach our clients to register work.
The general idea is that if you offer a work for licensing or offer it for further use in some way (like providing the work to a client to use, or not use), it’s probably “published” for the purposes of registration. Just putting the work on your website, without any indication that it can be licensed? Probably not published. But there is a lot of mushy grey area in those interpretations.
I usually tell people that if they aren’t sure (and don’t want to hire an attorney to help), it’s probably better to err on the side of “it’s published” (i.e., the work you think is published is actually unpublished, but you register it in good faith as published). That’s because there is more case law saying that such a registration is flawed, but not voidably so, than the other way ’round. Make sense?
Also, the Copyright Alliance has some advice on its site.