jole_t

<p>"I wanted to cover all of my bases"</p>

<p>Then cutting through all the talk, register with the Copyright Office any work you are interested in protecting.<br>

Do it promptly after creating the work and in any event within three months.<br>

*** Not legal advice ****</p>

<blockquote>

<p>"Why do you need registration to sue? It's still an infringement if not registered."</p>

</blockquote>

<p>Because Section 411(a) of the Copyright Act requires it.<br>

<br /> A related question is why do you not have to register to sue if the work is of non-US origin ?<br>

<br /> This two-tier set up: US origin requires registration, non-US origin does not is a result of amendements made to the Copyright Act in 1988 to satisfy US treaty obligations under the Berne Convention.<br>

<br /> Even though works of non-US origin don't have to be registered to sue, the same incentives exist to register as US works. If you don't register promptly you will not be entitled to certain extra remedies without which it may not be economic to sue.<br>

<br /> A second related question is, do you need the registration certificate or just need to have applied for it in order to sue. Here the circuit courts are split. Most take the view that you need the certificate. So again, the incentive is to register promptly.</p>

<p> </p>

<p>The following is not legal advice. It is for informational purposes only.<br>

"as soon as the shutter release is pressed, the work is officially copyrighted by the photographer because of its exclusive originality."<br>

Not exactly. Originality under copyright law means independent creation (and not mere copying). It does not have to be "exclusive." In other words, unlike patent law, your original independent creation does not preclude others from independently creating the same thing after you. A subsequent independent creation ("original") can secure a copyright for a new work and enforce the copyright against all others except you, the first copyright owner (or against later independent creations.)<br>

In addition to "originality" you need "creativity." The threshold for creativity is very low; it requires only a minimal amount of creative effort. <br>

So setting aside (1) joint work (in some cases other people contributing to the photograph can have rights in the copyright if this is what the parties intend) or (2) work-for-hire (where someone employing a photographer will own the copyright or in some limited cases and where you agree in writing a person commissioning work from a photographer will own the copyright), in almost all cases when you depress the shutter you will own the copyright exclusively.<br>

"Does there have to be any formal "registration process" associated with a copyright...?"<br>

Formally you don't need to register your copyright. As a real world matter if you don't register promptly after creating a copyrightable work you may have no practical recourse because certain remedies will be unavailable making it uneconomic to enforce your rights. And apart from available remedies, until you register you can't sue for copyright infringement if the origin of the work is the United States.<br>

"Do the works have to be individually registered in some fashion...? Something akin to a patent registration process...?"<br>

Learn all about the mechanics of copyright registration at the link provided by John Henneberger above. You can register unpublished work as a group and, in some cases, published work. </p>

<p> </p>

<p>Kevin Delson: "While true you can register many images for one fee, the images must have been created in the same year."<br /><br />100% wrong.<br /><br />The OP: "I have no published photos,"<br /><br />For unpublished works registered online, you can include multiple works (as many as you want) so long as they are from the same author and owned by the same copyright claimant (which will be you unless you trasnferred the copyright). It doesn't matter when they were "created". ( It also doesn't matter when they were "created" for registration of published works.)<br /><br />Online registration is not available for groups of published photographs unless they form a single "unit of publication" meaning only images from a single publication on a single date owned by the same copyright claimant (e.g., a magazine). The online form does not allow for including multiple dates of publication.<br /><br />If you have multiple dated published works the paper form is the way to go; it will be much cheaper because, unlike the online, you can use one registration offline, if (1) all the photographs are by the same photographer (if an employer for hire is named as author, only one photographer’s work can be included); (2) all the photographs are published in the same calendar year; and © all the photographs have the same copyright claimant.<br /><br />You may want to review the folliwng Copyright Office Circulars :<br /><br />#66, Copyright Registration for Online Works, http://docs.google.com/viewer?url=http://www.copyright.gov/circs/circ66.pdf<br /><br />#107 "Photographs", http://www.copyright.gov/fls/fl107.html, and<br /><br />#124 "Group Registration of Published Photographs", http://www.copyright.gov/fls/fl124.html<br /><br /><br />Kevin Delson: "I suggest [registration] [by postal mail.] if you have more than 50 images. "<br /><br />Bad suggestion. (And have no idea where you got the 50 from except perhaps the eco system timed out on you at 50. I believe the eco uploader will time out at 30 minutes so the suggestion from the eco is to zip up your files and do multiple uploads if needed).<br /><br />So long as you can satisfy the deposit requirements online, which you can do with unpublished photos, it's easier to do it online. You can also track the status of your submission online. You will get your registration certificate back in much less time. The CO is presently estimating time to process a registration application as within 9 months for an e-filing and within 22 months for a paper form. In my recent experience, I have waited just over a year for my paper submissions and around 4 months for e-filings. <br /><br />The Copyright Office is also discouraging offline registration by charging $50-$65 for a paper filing instead of $35 per online registration.</p>

<p>Just to clarify, the language from the US Copyright Office ends before the words "bottom line" which begin my words and which are not legal advice. Just something you need to think about or discuss with whomever gives you legal advice.</p>

<p>If you are asking about protection from infringement in the US:<br>

From the US Copyright Office website:<br>

"<a name="register"><strong>Do I have to register with your office to be protected?</strong></a><br /> No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, <em>Copyright Basics</em>, section “<a href="http://docs.google.com/viewer?url=http://www.copyright.gov/circs/circ1.pdf">Copyright Registration</a>.” <br /> <a name="automatic"><br /> <strong>Why should I register my work if copyright protection is automatic?</strong></a><br /> Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered <em>prima facie</em> evidence in a court of law. See Circular 1, <em>Copyright Basics</em>, section “<a href="http://docs.google.com/viewer?url=http://www.copyright.gov/circs/circ1.pdf">Copyright Registration</a>” and <a href="http://docs.google.com/viewer?url=http://www.copyright.gov/circs/circ38b.pdf">Circular 38b</a>, <em>Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA)</em>, on non-U.S. works."<br>

Bottom line. Register any work you are serious about protecting.<br>

It is the ability to request statutory damages (which range from $750 - $150,000 per infringement) instead of actual damages as well as get the other side to pay your attorney fees that really focuses the mind of potential defendants. These are powerful weapons. You want them available and, as a practical matter, if you don't have them available it will be hard to interest an attorney in your case.<br /><br>

If you register online, it's $35 per registration. You can register all of your unpublished photos at once as one group registration for one $35 fee. Find the details on online registration here:<br /><br>

http://www.copyright.gov/eco/</p>

<p> </p>

<p>"All of this to make sure that you're not going to take the loan and bail on them. "<br /><br />That would be more to help decide if the business makes sense and whether they want to loan.<br /><br />To help ensure they get their money back I think you will find they go way further then that.<br /><br />They'll want the intital loan funds to be held at the bank and likely want you to use them as your businesses bank so that all your business receivables come into the bank (the easier to foreclose on them). They will take a security interest in all your existing and future business assets (we already mentioned the personal guarantee). And they'll write a long list of loan covenants about what you can and can not do (including, of course, any money or other assets you may want to take out of the business whether as salary, dividends or otherwise) and what financial ratios you must maintain and what reports you must provide (think yearly tax return of the guarantor for starters). They'll require consent for any major decisions either directly or via the loan covenants. And if they get the slightest whiff of the business going bad they will call the loan and freeze your accounts. So what does that leave you that you can do without them looking over your shoulder ? They'll let you run the day to day operations assuming things go well...<br /><br />Not to beat a dead horse but banks usually don't give out loans after receiving some information and then they let you go on your merry way while they sit back and hope the plan goes well and one day the money is returned.<br>

<br />"As far as I know the only type of "default insurance" on a loan is paid via an additional payment to the lender"<br /><br />We all wish. http://en.wikipedia.org/wiki/Synthetic_CDO<br /><br />More seriously, not for what the OP is thinking.</p>

<p>Yes you're home free !<br>

Assuming the LLC is respected as such and the business loan is made to the LLC and you don't guarantee it. The debts of the LLC are the LLCs.<br>

But that is not how it will work in practice. As Joel pointed out, no lender is going to loan into a thinly capitalized entity without getting a guarantee from a person or entity that can stand behind the loan if things go south. That person will start with you the owner.<br>

If you don't like it raise some form of equity and not debt.</p>

<p>", I was not nor am I inclined to give a complete discourse on Copyright Registration/rules concerning subject matter"<br>

I'm well aware there is a sliding scale around here as to what people want/need in terms of accuracy. However, characterizing the time deadline as a mere "particular" when stating that a benefit of registration is statutory damages/fees is ridiculous. It's omission makes your statement, at best, misleading for the reasons already stated.</p>

<p> </p>

<p>"This may 'seem' to be so to you Jole but it isn't how it works in actual practice."<br>

I haven't done a poll but yes it "seems" that way. Obviously there will be variances among attorneys. I guess I should believe you and not my lying eyes. ;-)<br>

By the way, this statement of yours is also at odds with actual practice: "Contracts are either expertly drafted or they are not." I think you meant to say contracts are either drafted by a lawyer or not. As for lawyer drafted they can range from sublime to WTF, and everything in between.</p>

 

<p>Kevin,<br /><br />>>Hmm?..Thought I said that. :)<br /><br />If "such as" was illustrative and not exhaustive then you did suggest other benefits exist. I spelled out the benefit as far as the proof of ownership issue. You pointed out that registration doesn't by itself prove ownership but has other benefits so it seemed useful to note explicitly that there is a registration benefit having to do with proving ownership. <br /><br />>>What precisely did you find (incorrect) about my posting?<br /><br />"It DOES however provide further legal remedies and rewards if one chooses to pursue a infringement case such as receiving statutory awards, attorneys fees as well as being heard in federal court."<br /><br />I think it incorrect to state that "it" [registration] provides for statutory damages and attorney fees. You can register whenever you want and thereafter be entitled to bring a court action. However, only if you register in a timely fashion (before the infringement occurs or a three month grace period for published work) do you get the enhanced remedies you listed. That a time deadline for registration exists for such remedies is not a minor omission. Someone unfamiliar with the rule reading your sentence might reasonably conclude that if they register at any time they are entitled to request statutory damages and attorney fees. </p>

<p>Concur with John except for this:<br>

"It will cost much less for a review than it will be to draft it from scratch."<br>

Really ?<br>

When you review you have to start with a document you're unfamiliar with. Figure out what it is trying to say. Figure out if it "works". Figure out how to fix it if it doesn't without the other side thinking you're making a substantive change. Identify the various issues. Talk to the client and explain what it says and where you might need to push back. Mark it up. Etc. etc. <br>

When you draft "from scratch" you start with something you are comfortable with and mark it up to adjust for the present deal.<br>

Which one do you think the average attorney can do faster ?<br>

I'd say the more complex the agreement the quicker it is to "draft from scratch." But even a relatively short and simple agreement like a "2nd shooter agreement" would probably be, for a lot of attorneys, quicker to draft from scratch.</p>

<p> </p>

<p>Ethical ? It's how they make their money so I guess I'm not personally troubled by it. But I understand your reaction. I had a similar experience (not the White House and not Getty). I thought the publisher might give me a copy as a courtesy but it was not to be. I wasn't able to track down the photographer which I think was a good suggestion by Colin. The photographer might retain rights in the photo and may be more amenable to giving you a copy for personal use or for what you consider a more reasonable fee. Good luck. Sounds like a good time in any event. Did you meet The President ?</p>

<p>Yes, if by "right" you mean not legally obligated. :-)</p>

<p>Sorry. The correct reference is 410© not 408(d). (Note to self. Always whip out Copyright Act before talking copyright).</p>

<p>"Slight correction: Anyone can register images with the U.S Copyright office. Doing so does <strong>not </strong>establish ownership. It <strong>DOES </strong>however provide further legal remedies and rewards if one chooses to pursue a infringement case such as receiving statutory awards, attorneys fees as well as being heard in federal court."</p>

<p>Correction to the slight correction: You can register anytime you want during the term of the copyright. If you register you can bring infringement actions in court. But only if you register within certain time frames (generally within 3 months of first publication) may you request statutory damages and attorney fees. <br>

You are, of course, correct that registration does not establish ownership. What establishes ownership are the facts surrounding creation of the work. Which makes sense. I can register your work; that doesn't make me the owner. However, if you register the work within 5 years of first publication the facts stated in the certificate of registration will be presumed accurate by a court (e.g., that the owner listed in the certificate is the owner) and the burden will be shifted to the other party to prove you are not the owner. So while it doesn't prove ownership it gives you a substantial procedural advantage toward that end. (See section 408(d) of the Copyright Act)</p>

<p>Is it legal for them to sell and distribute the image without a release? Is it right that we would not at least receive a copy of the image when requested?<br>

Yes.<br>

Yes, if by "right" you mean not surprising.</p>

<p>"Having clients draft the contracts is begging for trouble."<br>

I wasn't commenting on clients drafting.<br>

I was commenting on a lawyer suggesting you should let the other side's lawyer draft because ambiguities are, under certain circumstances, construed against the drafting party.</p>

<p>" If you can get your client to provide the initial contract, or at least the initial draft (which you can suggest changes to) that would be ideal. I am not a lawyer, but a lawyer told me that if there is ever a legal case the "contract is always more strongly construed against the person who initially drafted the contract.""<br>

That may be the most asinine reason I've ever heard not to want to control the drafting of a contract.</p>

<p>" he isn't basing his comments on Wikipedia entries."<br>

And some of us are not making comments "based on wikipedia entries". We're linking to wikipedia entries because we realize we're generally addressing photographers, not lawyers and so we target the audience.<br>

----------<br>

And my posts are not legal advice. They are for informational purposes. To aid the discussion. Maybe correct some of the occasional misinformation put forth by "experienced commercial photographers"</p>

<p> </p>

<p>"Just to elaborate, the Nussenzweig case seemed to hinge on the fact that Nussenzweig was not aware the image was taken."<br>

No, it didn't. <br>

http://www.ncac.org/art-law/op-dicorcia.cfm<br>

Read the part "<em>Failure to State a Cause of Action". </em><br>

There is no discussion as to whether or not the subject was aware the photo was taken or that that would be a determinative fact. They analyze whether it is "art" or "commercial."<br>

Note that that photographer had good facts that you may not:<br>

"In their moving papers defendants have prima facie shown that the photograph is "art". This is not a subjective determination, and cannot be based upon the personal preferences of either party or the court. Defendant DiCorcia has demonstrated his general reputation as a photographic artist in the international artistic community. With respect to the HEADS project, DiCorcia has described the creative process he used to shoot, edit and finally select the photographs, ultimately used. The photographs were not simply held for sale in the Pace gallery, but they were exhibited and reviewed by the relevant artistic community."<br>

And, again, that this case is in Manhattan. <br>

You have to speak to an attorney in any jurisdiction you intend to sell. It's not exactly a bright line even in Manhattan. Very fact specific.</p>

<p> </p>

<p>"So, just to be clear, I can sell copies of my photo, with no legal problem?"<br>

No, that's not what it means. It means you should probably be OK if you get sued. Depending on where you sell and what law is applicable.<br>

You might find this Manhattan, NY case of interest.<br>

http://en.wikipedia.org/wiki/Nussenzweig_v._DiCorcia<br>

Note NYs highest court didn't bless the rationale of the trial court; they ruled on the statute of limitations question only. If the people in the picture don't sue within 1 year of your publication you'd be home free even if they otherwise would have had a good case.<br>

"holding for the first time that claims under New York privacy law must be brought within one year after first publication, whether or not the plaintiff learns of the publication during that period."</p>

 

<p>I don't know what your asking.<br>

But this doesn't work, unless you're trying to create mistrust:<br>

"The Client hereby releases the Photographer and its legal representatives and assigns from all claims and liability relating to said images."<br>

Putting aside whether you have the appropriate parties releasing, the release is too broad given the uses you requested. You shouldn't be asking for a release relating to "said images" But from "said uses." <br>

Pass on the rest of the issues in your agreement. <br>

This makes sense: "It's a lot cheaper to have an attorney review your contract up front than to have one straighten out a dispute later."<br>

And I'll add that it's generally no time saver to give a lawyer an agreement you cobbled together to review and rewrite as opposed to drafting herself from the get go.<br>

PS, what's up with the "initial" after every paragraph.</p>

<p> </p>

<p>John, don't look a gift horse in the mouth.</p>

<p>"This was one of the first issues my accountant asked about when I claimed contractor status."<br>

Your accountant is coming from a different perspective. Tax status. The tax authorities may be inclined to find an employer-employee relationship.<br>

And in any event, the inquiry for purposes of work-for-hire under the Copyright Act is, as Henneberger notes, the common law of agency.<br /><br />Read the copyright office bulletin.<br /><br />And this<br /><br />http://www.njvla.org/docs/Work%20Made%20for%20Hire.pdf</p>