Sadly, I am often approached by photographers (and others) about infringement matters that look like good cases, until I review the registrations. There, I see legally challengeable issues that make taking the case on contingency impossible and which may even make a case a total loser. These creatives tell me “But I was told this was the rule by one of my colleagues!” or “I saw it on a professional org’s website” but, unless you talk to an attorney, you’re risking getting bad advice. There are a lot of copyright law myths out there. In this post, I’d like to bust some common registration-related myths, so you can register with confidence and in good (legal) time.
Completely wrong. Let me make this clear: one must never knowingly register a published work as unpublished.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. Accidentally registering under the wrong publication status can be bad; but registering published work as unpublished, knowing it was published, is a fast route to having the registration voided for that work. 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.
If you have registrations with such errors, they can be fixed, but it’ll cost you both in US Copyright Office fees and, probably, your own attorney’s fees. Also, you’re very likely going to get a new effective date which, as we’ll see below, can affect the value of your case. But it’s better to get those registrations fixed now than get caught in the lie later.
This is a misapplication of the section of copyright law regarding pre-registered works to all works. Pre-registration is a limited-use tool for very specific categories of works. Most creative works are not eligible for pre-registration and for many of you none of your work will ever be; but, under that specific bit of law, if work is pre-registered, then it can be timely registered up to a month after discovering an infringement. Again, this is for specific and very limited categories of works (see USCO) that you pre-registered properly in the first place. In other words, even if your work does fall into one of the categories where pre-registration is available, you can’t find an infringement and then pre-register the work and then register it within the one-month window (by the way, it is one calendar month, not 30 days).
Now, since most creative works will not qualify for pre-registration, this “month after” safe harbor simply does not apply to most works. If you haven’t pre-registered, then the usual timing rules apply (see Myth 3).
This myth is close to the truth except that it has one important error: it is NOT 90 days but rather 3 calendar months after the first publication of the work. The courts will draw a very sharp line—no wiggle room—and three months is rarely 90 days. This seems nit-picky, but the law is nit-picky.
Also, that safe harbor is only for published work—unpublished work must be registered before the infringer first infringes on the work.
Defendants love to try and argue this, but it’s wrong-wrong-wrong. Mostly, it’s a mix-up of the rule I just talked about in Myth 3 but, whether the defendant says “one month” or whatever, it’s wrong. In short, there is no cut-off on the time to register a work; but, if you wait more than three calendar months after you first publish work to register it, then you can’t get statutory damages unless the infringement started after the registration. You can register a work immediately after its creation or 10 years down the road and there is no difference in the remedies available for infringements that start after that registration.
Don’t let infringers try to convince you otherwise—it can make a big difference in the value of your case.
©2020 Leslie Burns
Leslie Burns became a lawyer (licensed in California) after a career as a commercial photographers’ rep and consultant. Not surprisingly, her San Diego-based legal practice is centered on artists, especially photographers, whom she helps with copyright, small business, and other legal issues arising in their lives. She believes strongly in preventive and mindful lawyering, understanding that the best (and cheapest!) kind of legal help is the kind that prevents harm later. Learn more at Burns the Attorney or follow her on Twitter @burnsthelawyer.
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