The Valancourt Books Decision and Deposit Copies

You may have seen some headlines recently announcing that the “deposit requirement” at the U.S. Copyright Office was held to be unconstitutional by the DC Circuit Court of Appeals. Because this announcement could be misunderstood by creators looking to register their work(s) with the Office, we wanted to clarify the nature of this decision, but if you read no further, know this:  the outcome in the case Valancourt v. Perlmutter has no bearing on the requirement to provide deposit copies with a registration application. If you intend to register your work—and we strongly urge every creator to do so—this case does not affect that process in any way.

If you want a little more detail, here is an adapted excerpt from RightsClick co-founder David Newhoff’s blog The Illusion of More:

What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408 of the Copyright Act. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States.

Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration, and it is the basis for the court’s finding that the demand amounts to a taking in violation of the Fifth Amendment.

The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.

We know this stuff gets complicated and sounds needlessly confusing—and that’s because it often is needlessly confusing! But that’s why we developed RightsClick to make copyright registration and management way easier.

If you’re not already a RightsClick customer, sign up today and get one month free* with code REGISTERMYWORK.

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Why Retain the Copyright Rights if You’re Not Going to Register?

Many, if not most, creators who work for clients typically retain the copyright rights in their work. Commercial photographers and illustrators, for instance, use standard written agreements affirming that they retain the rights to the images and then lay out the terms by which the client(s) may use the works. Naturally, some clients will insist, or try to insist, upon Work Made For Hire (WMFH) agreements, but many creators resist or even refuse these arrangements.

Yet, despite the fact that most creators make an effort to retain their copyright rights, they then effectively nullify that effort by failing to register the work with the U.S. Copyright Office. Because if a work is not timely registered (i.e., before an infringement is discovered), key remedies under the law are not available. A registration may be filed at any time during the copyright term of the work (i.e., the author’s life + 70 years), but often, creators don’t think about registration until after they’ve had a work misused at least once. By then, it’s too late to do much about that infringement. That’s why attorneys tell their clients “register early.”

Making Registration Part of the Process is Easy

Having talked to many creators—some with decades of experience, and others just starting out—it seems that when registration is treated as an afterthought, it looks costly and like a chore. For instance, after spending the time and energy to plan, execute, and deliver a photo project, copyright registration is then set aside while attention turns to the next gig. But many experienced professionals who incorporate registration into the workflow, and even build the fees into their budgets, find the process is not only easier, but invaluable because they have settled infringement claims for thousands of dollars.

Photographer/filmmaker Jenna Close writes:

I have had one instance where we settled for $4,000. It happened immediately after the infringer knew the photo they were using was registered. In another instance, a client of mine discovered a competitor using an image I had photographed. The client came to me asking for help, and because I had registered the image with the Copyright Office, they took it upon themselves to pursue the case through their attorney. In the end, we split the proceeds from the settlement, but what was even more valuable to me was how grateful the client was for my knowledge and professionalism in obtaining legal protection for the images they had hired me to create. They are still my client to this day.

RightsClick Makes Registration Even Easier

In addition to putting off registration, many creators find copyright law and the Copyright Office website confusing. We know! That’s one reason we built RightsClick. In the time it takes for an average coffee break, you can submit a registration application through RightsClick. You don’t need to know anything about copyright law, and if you make registration part of your production workflow, you don’t even have to wonder whether the work is “published” because it hasn’t left the studio yet!

Not only is registration through RightsClick fast and easy, but the system is also your copyright database—a searchable portfolio that enables you quickly locate the relevant legal information associated with any single work in the system.

Not a subscriber yet? Sign up today for one month free* with code:

REGISTERMYWORK.

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DIY Copyright Registration is a Good Idea

Any attorney will tell creative professionals to register their work the U.S. Copyright Office because without timely registration, taking enforcement action against an infringement is either hindered or impossible. Some creators register on their own, and others have attorneys do it for them. But the truth is that it’s better (and cheaper!) to do it yourself, which is one reason we streamlined the registration process in RightsClick.

In November 2021, in a case involving potential invalidation of a copyright registration (Unicolors, Inc. v. H&M Hennes & Mauriz), the Supreme Court made a decision that was very helpful to creators—deciding that honest mistakes on a registration application are not a reason to invalidate the registration. And who’s more likely to make an honest mistake? You or a copyright attorney? Because of this decision, many copyright attorneys would rather creators take care of registration themselves.

In fact, counsel for Unicolors in that case, Scott Alan Burroughs says, “I tell my clients to register early and often, and it is in many cases preferable, for a number of reasons, if they do it themselves. In fact, I’ve referred clients to RightsClick to make the process more efficient.”

Of course, RightsClick software is designed to prevent common mistakes like mixing published works with unpublished works or selecting the wrong application form or the wrong administrative class. Plus, a registration application with RightsClick takes just minutes; it becomes part of your organized creative portfolio; and it’s a lot cheaper than having an attorney file the application for you.

Check out the demo videos and/or write us with your questions below. We’d love to hear how we can help you start protecting your work today.

Use Multiple Photos to Register a Single Work

When you want to register a visual work like a sculpture, painting, or jewelry, you may — and often should — send several photographs of the work to the U.S. Copyright Office as your registration deposit copy. You can combine the images on a single PDF document to submit, or if you want to simply upload multiple photographs to a RightsClick Project and tell the system to treat the images as a single work, we’ve made that easy to do. Watch this simple slide show, which you can download as a PDF here.

What is the ARTS Act?

In mid-October the Artistic Recognition for Talented Students Act – or “ARTS Act” – was signed into law. You may be wondering what this new law does and whether it helps you? Odds are, the ARTS Act does not apply to you. But it’s still a nice idea and we want to let people know about it.

Congress has supported art in many ways over the years, including annual competitions for high school artists. The winners’ works are displayed in the Capitol complex, most prominently, in one of the hallways connecting the House of Representatives’ office buildings to the Capitol itself. RightsClick co-founder Steve Tepp worked on Capitol Hill at the beginning of his career and fondly remembers walking from meeting to meeting past the talented and thought-provoking works contributed by high school students from around the country.

What the ARTS Act does is to waive the Copyright Office’s registration application fee for works selected as winners of the Congressional art competition. So, if you’re no longer a high school student and/or your work did not win that competition, the ARTS Act doesn’t apply to you. Although the law applies only to a very small group of people, we still like it. Even a $45 registration fee for a single work is a nice savings for a high school student, and we applaud any incentive for young creators to engage with the copyright system and to learn about their rights early in their careers.

We at RightsClick cannot say often enough how important it is for independent creators to register their works. The full strength of the copyright law hinges on copyright registration, and the sooner you register, the more options you have when dealing with infringement. This is true even if you never go to court – because a request for compensation for unauthorized use of your work carries a lot more weight if you show that you know your rights and have taken steps to protect them.

So, we thank Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC), the co-sponsors of the ARTS Act, as well as Representative Hakeem Jeffries (D-NY-8) who sponsored the companion bill in the House. All of three Members have a consistent record for supporting creators and an effective copyright system.

RightsClick and Qti.ai – A Winning Combination to Combat Counterfeiting

At RightsClick one of our core beliefs is that professional creators can take control of their copyright rights and take action against many unauthorized uses without the time and expense of consulting a lawyer and filing a federal lawsuit. Copyright registration is the lynchpin to successful DIY enforcement, which is why we built a tool to make it quick and easy to submit works for registration with the U.S. Copyright Office.

One area where registration makes a difference is compliance with DMCA takedown notices. Many creators have experience with some of the major platforms—Meta, YouTube, et al—avoiding compliance with takedown requests, whether the work is registered or not. We could spend pages discussing why these companies behave like this, but one area where DMCA compliance still works fairly well—and where that registration number appears to make a difference—is in conjunction with counterfeit and fraudulent merchandise sold on platforms like Etsy, Ebay, and Amazon. And this is one area where our partner Qti.ai may be able to help protect your business.

Counterfeiters infringe intellectual property in a number of ways, but a common practice is to make and sell copies of visual works, or products featuring visual works, that are already being sold by the legitimate copyright owner. But just because you aren’t selling your works doesn’t protect you. Sometimes they make unauthorized copies of visual works that the artist never intended to sell as merchandise – and sell it anyway. Counterfeiters also often copy product shots from a legitimate seller’s page to display on an illegitimate seller’s page. So, if you are selling merchandise, for example, you may want to register both your underlying work (e.g., designs) and the product shot photographs.

Unfortunately, counterfeiters frequently operate outside the U.S., making it difficult, if not impossible, to reach them directly through enforcement action. A silver lining is that many of the ecommerce platforms do comply with properly filed takedown requests in a timely manner, and when they are provided the registration numbers, this seems to aid in that compliance. This makes sense because registration with the U.S. Copyright Office is legal evidence of your ownership of the work.

Still, the enforcement process in the world of counterfeiting can be cumbersome, which is why we are very excited about the work being done by our partners at Qti.ai. “We love to help protect the brands of small artists and designers, so they can concentrate on their craft,” says co-founder Cheryl Darrup.

A U.S. company based in western New York, Qti.ai has developed some impressive enforcement methods to help small-business creators and to protect consumers. Their “Scam Intelligence Algorithm” is offered free to consumers to help determine whether a product offer is legit before an order is placed. But for copyright owners like entrepreneurial creators, their service can be used to monitor the major platforms for infringements and to initiate takedowns on behalf of the copyright owner. And Qti.ai has had success dealing with some of the largest platforms, both in the U.S. and abroad. “Our industry-leading Scam Intelligence Algorithm boosts efficiency in detecting infringements and keeps our monthly costs reasonable for our clients. As we fortify our database with deeper threat indicators, our strong success rate of takedowns will continue to improve across ecommerce platforms,” Darrup says.

We’ve had some great discussions with Cheryl and co-founder Will Boychuck, including ways we can work together to help small-business creators. It’s a natural collaboration. RightsClick is all about getting your portfolio organized, getting your work registered, and taking the most affordable actions possible to protect your business. And Qti.ai may be exactly the enforcement tool you need to stop counterfeiters from reaping the rewards from your intellectual property.

Visit Qti.ai to learn more.

Graphic Artists Guild Hosts RightsClick

Get organized. Register your work. Take action.

Thanks to the wonderful folks at Graphic Artists Guild for hosting last week’s webinar talking about reasons to protect copyright–and how to do it using RightsClick! Watch the video below to learn why we think you can do a lot more about infringements of your work other than giving up or calling a lawyer.

Join the Guild!
Webinar Hosted by Graphic Artists Guild – 9/21/22

NFTs, Copyright, and Your Rights

As long as there have been creators, there have been others who try to free-ride or exploit creators’ successes without permission. NFTs are one of the more recent developments (excuses) for more of the same. But creators don’t have to be confused and they certainly don’t have to take NFT-based infringement lying down.

NFT stands for non-fungible token. It is computer code that uses blockchain technology to certify that an electronic file connected to that “token” is uniquely identified. But let’s not get lost in the techno-jargon, because that’s not what matters to you.

The principle of the NFT that the technology allegedly guarantees that a computer file, usually of an image, is authentic and unique. In this way it’s a little bit like the painter who signs and numbers his paintings – a guarantee of authenticity and rarity, if not uniqueness. And if you – the artist and copyright owner – decide to “mint” one of your images into an NFT and sell that copy, that’s just fine

Other scenarios are not so clean-cut. Unfortunately, anyone could take a digital copy of your work, mint it as an NFT, and try to sell it, and this has already happened at scale with both visual works and music.  In other instances, people who buy an image that has been minted into an NFT may try to prevent others from making copies of that image.

This is perhaps the greatest misunderstanding about NFTs – just because a person buys a copy of an image, regardless of whether it’s been made into an NFT, that purchase has nothing to do with who owns the copyright. Nor does minting an NFT stop someone else from right-clicking on an image, making a copy, and saving it as a NEW file they are able post anywhere they please–even though this action might well be copyright infringement.

This brings us to a central point creators should be clear about – NFTS AND COPYRIGHT ARE COMPLETELY DIFFERENT AND SERVE DIFFERENT FUNCTIONS. So, if/when someone makes an NFT of your image without your permission, they might very well be infringing your copyright and you may have a legal claim against them. The moment you create an image or any other copyrightable work (literary works, music, movies, sculpture, etc.) it is automatically protected by copyright. That copyright is a property right and just because you sell or display copies of your work does NOT mean you gave away your copyright.

If a person buys a book, does anyone really believe that gives them the right to make more copies of that book and sell them? So, why would anyone think that simply buying a digital file of an image and “minting” it as an NFT would give them the right to stop others from making copies of that image? They just bought a copy, not the legal rights protected by copyright law. NFTs may be the hottest new topic, but they are for sure one of the newest ways for people to violate copyright law.

So, what are the steps you need to take to be able to defend and enforce your rights? First, get organized. Second, register your work with the U.S. Copyright Office. Third, take action where you can. These are the principles on which we developed RightsClick.

First, use the Portfolio database in RightsClick to organize your works according to legally relevant information like the creation date and the type of work it is. Next, you’re ready to register those works with the Copyright Office. Remember that automatic protection we mentioned? Well, there’s a catch.  

Under U.S. copyright law, if you don’t register your work with the U.S. Copyright Office before the infringement begins[*] the law takes away some of the most important enforcement tools against copyright infringement. And if the infringer knows what they’re doing, you are much more likely to get a stiff-arm response to a request for compensation, if your work wasn’t registered in a timely manner. But, looking at it from the glass-half-full side, if you registered on time, you are more likely to get paid. Sooooooo, Register your work!

The RightsClick registration tool walks through a few, plain-English questions to enter the info needed to apply for copyright registration. A few clicks and you’re done. We submit the application for you – you don’t have to deal with the Copyright Office website.

Once you’re organized and registered, you’re in a much stronger position to quickly take action against an infringement of your work (NFT or otherwise), and RightsClick provides tools to help you do that. You can watch how these work in our video demos.

To repeat, if we can make one thing clear, NFTs and copyright rights are two very different things. If you see an opportunity to mint your work and make money, go for it. But don’t be confused about your rights to control your work or about anyone else’s claim to that they are allowed to exploit it. Because it’s your work.

[*] It’s actually more complicated than that, but we’re trying to keep this short.