There were a number of messages on this lately, and I apologize if posting
a response is beating the proverbial dead horse, but I will try to bunch
up what would have been multiple replies into this single message.
(Up front: I am a lawyer, and copyright is an important part of my
practice. I work in-house for a company, not in a law firm and not as a
solo practitioner, so I don't represent any clients other than my
employer. For credibility's sake, I should add that, in addition to my
Real Job, I teach Copyright Law at Santa Clara University School of Law on
the side.)
In the US, as in most countries, you get a copyright in the work as soon
as you create the work; technically the test is that it has to be "fixed
in a tangible medium of expression." Exposing the film is probably
enough, even if it's not yet developed, although I don't know any cases
on this in the real world, since you can't copy a photo from undeveloped
film.
Registration is not a requirement. However, if you have a reasonable
belief that you might be infringed, it's not a bad idea. Here's why.
Ordinarily, when a copyright is infringed, the copyright owner can either
get his economic loss due to the infringement (e.g., lost sales); the
infringer's profits due to the infringement; or both, to the extent that
they don't overlap (that is, you can't point to a particular sale made by
the infringer and count it both as a profit to the infringer and a lost
sale for you).
But, if you register your work on time, you can elect to get "statutory
damages" instead of (not in addition to) the above measure of damages.
Statutory damages are set in the copyright statute, ordinarily in a range
of $750 to $30,000, as the court deems just. The ceiling goes up to
$150,000 if the infringement is done willfully. It can also go down to
$200 for "innocent infringement."
This is a per-work limit, by the way; so if the infringer is taking, say,
four of your photos, the range is $3000 - $120,000, up to $600,000 if
willful (or down to $800 if innocent).
In addition, and perhaps as importantly as statutory damages, is attorney's
fees. You can't get them unless you register on time. You don't
necessarily get them if you do register on time, but at least you're
eligible. This is in contrast to statutory damages, which you can elect
as a matter of right at any time if you're registered on time.
So when is "on time"? Well, for infringement of an unpublished work, your
registration will entitle you to statutory damages and make you eligible
for attorneys fees if you register prior to when the infringement starts;
no fair waiting until you see that you're being infringed, and then filing
your registration. For published works, it's timely if you register prior
to the start of infringement or any time in the three months following
publication.
The other thing is that you are ordinarily required to register your
copyright prior to bringing suit. That's right; while it is true that you
get a copyright automatically by creating a work, you're not able to
enforce it until you register. The exception is for non-US works (which
essentially means either works that authored entirely by non-US nationals
and, if published, are first published outside of the US). Copyright
owners of those works can sue without getting a registration (although the
limits on statutory damages and attorneys fees still apply to them).
It's still worthwhile getting that registration, though, because a
registration will ordinarily serve as evidence of the facts stated on the
certificate: authorship, ownership, etc. The copyright owner would
ordinarily carry the burden of showing this, but if he has a certificate,
the burden shifts to the infringer to introduce evidence that rebuts the
facts on the certificate.
Now, will the Copyright Office accept registration deposits on CD-ROM?
Yes, it will. The Office just announced this last week. The new rule
goes into effect August 16. You can read the long and boring Federal
Register entry on it at
<>
(<> if you prefer
PDF format).
(A couple years ago, I had a conversation with the Register of Copyrights
and asked why they wouldn't accept deposits on disk (this was before
CD-ROM burners were in common home use). She explained that it wasn't
that the Copyright Office itself was in the dark ages. It was just that,
although the general public envisions a nice filing room with all the
deposits, the truth of the matter is all the stuff other than the
registration certificate information itself gets put in document boxes and
filed in warehouses that are neither heated in the winter nor air
conditioned in the summer: picture the last scene of "Raiders Of The Lost
Ark." They know from past experience that, after a couple years
oscillating between freezing in winter and baking in summer, there's a
good chance that any ordinary magnetic media will be unreadable, and
there's no point in having a deposit that can't be read.)
There's no limit to the number of photos that can be put on the CD-ROM for
registration purposes. You may hear 500, but that was a limit proposed in
an early draft of the rule. The final draft has no numeric limitation.
The acceptable image formats are JPEG, GIFF, TIFF or PCD.
As long as we're talking about registration, let me toss in a word on
copyright notice. A copyright notice (which consists of the C-in-a-Circle
symbol (or either "Copr." or "Copyright"), the year of first publication,
and the copyright holder's identity) is optional. It used to be a
requirement on published copies, but that went away in March 1989, when
the US joined the Berne Convention; the Berne Convention is the major
international treaty on copyright, and it forbids member nations from
conditioning copyright on formalities. (That's one reason why non-US
works don't need registration to sue; the US can slap around its own
nationals and require it, but it can't do the same to non-US nationals.)
Notice is no longer required, and there really isn't much of a benefit to
it, as a legal matter: if someone copies from a copy with a valid notice,
they are not allowed to plead the "innocent infringement" defense
mentioned earlier. Innocent infringement is a partial defense that could
mitigate damages. The notice's real benefit, I think, is that, as a
matter of fact rather than a matter of law, it puts the viewer on notice
that the copyright owner knows his rights, and may deter some
infringement.
As far as I know, the registration in the United States has no effect in
any other nation. Copyright is a system of national enforcement; each
nation enforces its own copyright laws within its borders. The basic
principle on international copyright law is not that of extending one
country's protection into another country (or, put another way, is not
that of one country honoring the copyright of another country); the basic
principle, as found in the Berne Convention and other treaties, is that of
non-discrimination: a country can't treat a work from another country
worse than it treats those of its own people. But by the same token, each
country's system is mostly independent of each other country's system.
So, for example, if you're an Australian trying to assert a copyright
against an infringer in the UK, you go by UK rules; a US registration will
probably not help you, unless the UK has some odd departure from the usual
system. (I should add that I am not an expert in UK copyright law. I
spent a couple of weeks one summer crashing a girlfriend's class in UK
Copyright Law at Queen's College, and have the textbook, but that's about
it.)
That's about it. I hope I didn't stir up more questions than I answered,
and I apologize to Tony if this was a little too far off-topic. But I'm
so used to seeing the rest of you give top-quality information on film
scanning, Vuescan, Photoshop, etc. (I'm on this list because I'm looking
to buy a film scanner, and am still deciding which one); it's unusual to
have an opportunity to provide some signal that I believed would be found
useful, even if a little off-topic.
--
Terry Carroll | "Denied."
Santa Clara, CA | Baltimore Ravens v. Bouchat, no. 00-1494,
carroll@tjc.com | (U.S. Supreme Court, May 21, 2001)
Modell delendus est |
