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Where Does Registration Fit in the Photographer’s Workflow?

“Make registration part of your workflow” is probably the most fundamental and important message we at RightsClick have for independent creators. This is especially true for the highest-volume creators – photographers. The most common questions we receive revolve around when in the workflow registration should occur.  This is both a practical question about efficiency and a question about copyright protection of different versions of a photograph.

Although decisions vary depending on genre, the first version of a photograph edited for faithful reproduction is the version many photographers choose register with the Copyright Office. The most efficient and cost-effective group registration is one comprising 750 images totaling no more than 500mb as a group. 750 images are the maximum allowed on a single application, and the Copyright Office has a maximum .zip file size of 500mb per folder. It is allowable to separate the images into more than one folder, but we urge photographers to try to keep this to 1 or 2 folders to minimize potential errors. If you’re using RightsClick, we take care of folder management for you.

With those parameters, RAW and other large files are impractical. In fact, group photo applications may only include either JPEG, GIF, or TIFF files (we recommend JPEG), and a single group may only include one file type. So, after a shoot, and after you weed out images you are unlikely to deliver to clients or ever use, a batch of edited JPEGs (3mb or less each) is generally ready for registration.

Publication Status

A group of photographs submitted for registration must either be all published or all unpublished. The RightsClick app prevents mixing the two. For many photographers, submitting a copyright application before the photos leave the studio has the advantage that the images are still unpublished. This is more convenient because there is no need to identify the month of publication (as there is for published photos) and because published groups are required to have been published in the same year.

Certain photographers, for example real estate photographers, commonly send photos to clients within hours of editing, and this kind of client delivery can be considered publication. To get the maximum amount of photographs on a single application, it is permissible to group jobs together, as long as they were all published in the same year, and it is advisable to submit registrations within 3 months of first publication in order to have full protection and remedies under the Copyright Act.

Protecting New Versions

This does not come up very often with photographs, but we did write a blog answering some common questions about registering new versions of works that were previously registered. In the eyes of the law, changes to a work creates a “derivative work” IF the changes are enough to be new copyrightable expression in the work. Thus, subtle reediting of a photograph (e.g., because it will be printed or displayed in a certain way) does not necessarily produce new copyrightable expression. By contrast, dramatic changes to a photo that truly alter how it is expressing the subject can produce a work that is worth registering anew. This is a judgment call for you as a creator, or for an attorney if need be, but you should avoid registering what is reasonably the same photograph more than once.

We hope this helps you make copyright protection a regular part of your workflow. RightsClick makes the application process quick and easy, freeing you to spend more time creating or with friends and family or maybe catching up on a good book!

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Whose Work Is It?

Collaboration is great, but what are the copyright implications?

In the last two weeks, we’ve had conversations with creative friends about the concept of work made for hire (WMFH) — and whether you’re a contributor to a project or the presumptive owner of a project, understanding this concept in copyright law is important. In particular, friends and family and colleagues all start out happy with a handshake at the beginning of a collaboration, but when the job is done, and publishing or distribution deals are being considered, the unanswered questions become tricky and often lead to hard feelings. Everybody is friends until money and credit are involved.

As a matter of copyright law, a work made for hire is authored and owned by the party who hires the individuals who create the work. Thus, an employer is the author/owner of copyrightable works created by full-time employees. More common, however, are situations in which independent creative people collaborate on a project like a film or book or record album. It is in these situations where everyone involved should understand whether they are joint authors or working for an author/owner under a work made for hire agreement. Even if, and perhaps especially if, people work on spec, having this understanding at the outset avoids legal mess when it comes time to license, distribute, or publish the work—legal mess that can even kill the opportunity to bring the work to market.

A classic example is the independent film project. A writer/director gets his Andy Hardy enthusiasm going, says, “Let’s put on a show,” and friends, family, et al. agree to work on the project for beer and high-fives. Great! Just surviving through the edit is an accomplishment. But even though everyone agreed to work for free, certain creative contributions are legally the property of those contributors unless there is a written agreement that those contributions are WMFH.

With a film, this might include cinematography, actors’ performances, script writing or collaboration, and above all, MUSIC. If your composer friend is willing to create music for your film, nice! But is she licensing it for limited use in your film or agreeing to a WMFH agreement, which makes you the author/owner of her compositions? The latter would not be very wise or typical for the composer, but the point is to understand the deal and put it in writing, even if nobody is getting paid.

How about collaborating on or ghost-writing a book? These are not the same thing. If a book is jointly authored, then both writers are author/owners of the manuscript. By contrast, a ghost-writer is typically a classic WMFH job because he is hired to write in someone else’s name. This does not preclude the hiring author and ghost writer from negotiating a deal for some combination of payment up front and any share of royalties, but in order to negotiate those terms, copyright ownership in the work must first be explicitly stated in writing.

As mentioned, letting this stuff go until the finished work is being pitched for sale or submitted to festivals, etc. can get messy. In fact, the first hurdle occurs when the individual who believes himself to be the author/owner of the whole work goes to register the material with the Copyright Office. If the filmmaker didn’t get written WMFH agreements, his claim in the whole film would be untrue. Or if the book author didn’t sign a WMFH agreement with the ghost-writer, her claim in the whole book would be untrue.

Similarly, vague and verbal agreements among creators become problematic when the filmmaker submits the work to a festival, or the book author is presented with a publishing contract. In both cases, the parties will often be asked to affirm in writing that they have obtained proper permission for the use of any material in the work that they did not personally produce. The absence of agreements in these cases can lead to rejected submissions, cancelled opportunities, bad feelings, and lawsuits.

Although boilerplate agreements can be found online, seek the aid of qualified counsel when possible, and/or consider some of the free legal services offered to artists in various communities. On that note, even though your cousin might be a perfectly good sound guy on your film shoot, DO NOT ask your sister the real estate attorney to review your intellectual property agreements. You can review our list of copyright attorneys, seek guidance from Copyright Alliance, or find resources through an artist rights organization to which you might belong.

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Event Photography: Venues and Vendors as Copyright Vultures

RightsClick recently conncecte with photographer Vanessa Joy. In this video, she raises some important copyright issues related to event photography. Before discussing those issues, we strongly recommend that photographers retain all their copyright rights. Work made for hire (WMFH) agreements mean that the hiring party owns all the rights. These should be entered into with caution and, ideally, only for substantial compensation.

Venue Vultures

The first issue Vanessa mentioned running into is venues demanding that she transfer copyright rights to the property owner before allowing her to proceed with photographing, for instance, a wedding, Bar Mitvah, reunion, etc. We assume this would be a nonexclusive license so the venue can use the photos for promotional purposes, but still, that ain’t right.

The event host/wedding party hired you for photography, and the venue is paid (usually quite a lot!) for use by the same host. If the venue wants to prevent you from photographing the event, it can take that up with the host, and we imagine that will not go well for the venue. Separately, if the venue wishes to use any of your photographs for promotional purposes, it should make that request of you separately and expect to pay a licensing fee commensurate with the intended use. But don’t let the venue bully you into signing away your rights.

Vendor Vultures

Vanessa also raised a similar issue about event vendors like florists and make-up artists. Apparently, she has experience with those suppliers asking the event host to sign over the photographer’s copyright rights. As Vanessa rightly said in the video, “That’s not how the law works!” Unless the photos are made under a WMFH agreement, you are the creator and copyright owner. And just as no one else may sell your physical property, the client who does not own your copyrights may not grant permission to anyone else to use your work.

Artisans and craftspeople bring extraordinary talent to enhance events, and especially when so much marketing today depends on feeding social media, it is no surprise that the caterer, florist, make-up artist, wedding planner, et al. would love to use your photographs to show off their latest work. But they need your permission, not the permission of the event host. On related note, some vendors consider their work protected by copyright, and in most cases, it is not.

It is doubtful that floral arrangements, make-up, food display, or event design could ever qualify for copyright protection. Although tattoos or body paint may be protected, this would only be a consideration if you were to license a photograph with one of those elements for some purpose unrelated to capturing the event. All that said, it is possible that another vendor may have a valid copyright claim – ice sculptures may be the best example. Even if you don’t have explicit permission, there is a strong case to be made that anything provided for a wedding is with the implied understanding it will be photographed. If you want to use those photos for something beyond delivering to the client, that’s when you should think more seriously about getting permission.

Every time we hear from a professional like Vanessa Joy, we learn something new. And it seems that when the professional photographers arrive at events, the copyright vultures soon appear—even ones who don’t mean to cause harm. Your rights are an essential investment in your career, and you should never be pressured to sign them away. Even if you want to grant permission to use an image for free, we recommend formalizing that with a written license agreement.

To maximize the protection of your rights, we also urge you to build the small registration fee into your budget for an event and to register your photos before even proofs are delivered to your client. And that’s why we built RightsClick to make registration a process you can do in a matter of minutes.

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When to Register a New Version of a Work

Ernest Hemingway famously said that “The only kind of writing is rewriting.” Whether creators agree with that rule, one question we hear frequently is, “When should I register a new version of my work?” Here are some basics to help you with that decision:

You might know that copyright protection applies automatically the moment your work is created, but of course, revisions and alterations are common. If you never registered or published a work you’re revising, no worries. When you feel the work is done—and especially before you send it anywhere—that’s the time to file the first registration application.

But if an original version of a work is either published and/or registered with the Copyright Office and you make changes, should you register the new version? This is really a two-part question: 1) whether to submit a new registration application; and 2) how to correctly file the new registration application. Note: if you have published a version of the work but still haven’t registered that version, we recommend you register the published version ASAP to maximize your protection.

Deciding Whether to Register a New Version

Alterations to a work that has been published and/or registered creates what copyright law calls a “derivative work,” and anyone who creates a derivative work without your permission may be infringing one of your rights. But when it comes to registering your own derivative works, the judgment call you need to make is to ask how much new work you created by adding to or altering the original work? Because this question is subjective, it will apply differently depending on the type of work you do.

For instance, if you add a whole chapter to a novel, that’s easy to quantify, but if you make stylistic edits throughout the original manuscript, you need to ask yourself how different the new expression is from the original version. With alterations to a visual work, for instance, creating a series expressing variations on a theme might be a reason to protect each new derivative work in the series. By contrast, making subtle changes to the original image (e.g., burning or dodging) might not be a reason for a new registration.

How to Apply for Registration for New Versions

In practical terms, when you send a deposit copy to the Copyright Office, what the Registration Specialist wants to know in context to new versions is this: “What’s in this electronic file, and was any portion of it registered before?” If some portion of the deposit copy is already registered and/or already published, the Office simply asks that you disclaim the original material and claim the new material. And fortunately, the Copyright Office does not require a complicated description.

As discussed in our post about Limit of Claim, the Office simply asks what new material is being claimed separate from any material which is not being claimed. So, if you registered the first version of a novel and want to register the new version, your Limit of Claim response looks like this:

Simply disclaim the original Text, claim the new Text, and (ideally) provide the copyright registration number for the original version. That’s it! If you feel more explanation is necessary, you may also provide information to the Specialist (Examiner) in the notes at the end of the application form, but this is optional.

The Limit of Claim would look similar if, for example, you used one of your registered photographs to create a series of silkscreens based on the photograph.

You would disclaim the original Photograph and claim the new 2D Artwork.

Ultimately, registration of a new version is a judgment call, but we hope this post is helpful in making an informed decision. As always, we recommend registration before work leaves your control, and RightsClick helps make the process quick and easy.

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Foreign Authors Must Register in the U.S. for Full Protection

Are you a foreign author? Foreign to the United States, that is. We Americans can be like that sometimes. And unfortunately, our copyright law is the same.

Like almost every copyright law in the world, the U.S. Copyright Act promises that protection arises automatically at the moment a work is created. And in the formal sense, this is true. The moment you are done typing, click the shutter, or make that last brush stroke, the work is considered protected. But there’s a catch.

U.S. copyright law is unique in requiring registration with the U.S. Copyright Office as a condition for key enforcement tools. For American authors, they can’t even file an infringement lawsuit without having first registered. But for all authors, regardless of nationality, both statutory damages and attorney’s fees are conditioned on registration of the infringed work(s). Not only that, but the registration must have been PRIOR to the commencement of the infringement. This is often a point of confusion for some who believe that non-U.S. authors can register upon discovery of an infringement and still be eligible for all remedies. We get it. The statue reads a little fuzzy on this topic. But trust us.

What are statutory damages?

Just what they sound like. Instead of having to prove the actual monetary harm to you from the infringement, you can request the court pick from a range of damages in the statute. For ordinary infringements, that range is $750-$30,000 per infringed work. So, if you are dealing with infringement of multiple works, multiply that range by the number of works infringed. The range goes even higher – up to $150,000 per work – if the infringement was willful. That means the person who used your work without permission has to think long and hard about whether they want to risk going to court. Often willful infringers who see a work is registered will decide it’s a lot easier to settle than litigate.

This is why we at RightsClick urge creators to register before sending your work to anyone. We have worked hard to make it quick and easy for you and if you make it part of your regular routine, you will always maximize your protection. It doesn’t matter where you live – if you sell your work in the U.S. or even if you don’t but it is likely to be infringed here, timely registration can make all the difference. 

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Big Win for Creators in Internet Archive Case

This week, the Second Circuit issued its ruling in the copyright infringement case brought against the Internet Archive over the unlicensed copying and distribution of the major book publishers. The Second Circuit ruled in favor of the publishers.

Several years ago, the Internet Archive (IA), first known for its internet page preservation efforts, the Wayback Machine, began obtaining copyrighted works in hard copy, scanning them, and making them available for download by the general public. No distinction was made for works still in their term of copyright and no permission was sought or obtained.

Rather, IA concocted a theory of fair use that it dubbed “Controlled Digital Lending”  (“CDL”). Under that approach, the download of each work was time-limited by technological restrictions and only one user was allowed to possess a copy for each physical copy IA had in its possession. This was meant to approximate traditional/offline library practices and the copyright doctrine of “first sale,” which allows unlimited distribution of a particular authorized copy of work. 

Prior commercial models along these lines had previously lost various lawsuits, but , for years, book publishers tolerated this use by non-profit self-described online “libraries” such as IA. In 2020 during COVID quarantine restrictions, IA suspended its CDL limitations and made works available without user limits. The publishers filed suit.

From the start, the IA case was about fair use and the so-called CDL theory. Last Spring, the District Court for the Southern District of NY granted summary judgment for the publishers in a very strongly worded opinion that rejected the CDL theory entirely. The Second Circuit has now affirmed, likewise rejecting CDL and holding that IA’s use was in no way transformative. Indeed, the court found all four fair use factors favored the copyright owners. 

This is a big win, not only for authors but creators of every stripe who object to others posting their works online without permission or payment. As one longtime opponent of effective copyright protection admitted, “the death of copyright has been greatly exaggerated.”

The courts in this case understand that it just isn’t right to take others’ copyrighted works and give them away for free. It’s such a basic notion that one wonders who would ever think to argue with it. So, whether it is stealing from the authors and artists themselves, or from the publishers or other distributors who pay the authors and artists, when copyright rights aren’t respected, it hurts creators. And that makes our society poorer.

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Protecting Copyright Isn’t Always About Money

In 2013, The Beastie Boys filed suit against the girl-oriented, creative toy company GoldieBlox. Not for the money, but for the principle. GoldieBlox had created a derivative of the band’s song “Girls” and used the new version in a video promo. When the case settled months later, the agreement included an apology to the band and “a payment by GoldieBlox, based on a percentage of its revenues, to one or more charities selected by Beastie Boys that support science, technology, engineering and mathematics education for girls,” according to Rolling Stone.

The Beastie Boys didn’t want the money for themselves, and the band was supportive of GoldieBlox’s general objectives and messaging. But they filed suit for the simple reason that they have never allowed its music to be used for commercial advertising.

We know many creators think of copyright in terms of legal action they might never take. And so, they see no reason to register and protect their works. But quite often, even creators willing to allow a liberal amount of sharing of their work will discover uses they find objectionable for personal reasons. Your work might be used to advertise a product you don’t like or promote an organization or political agenda you don’t support. And unfortunately, this happens all day long on social media.

If your creative work is used without permission, it’s copyright infringement. The decision to take legal action is always up to you. But having the option to fully enforce your rights makes a difference when you discover that infringement you’re just not willing to let go.

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Copyright Registration for Screenwriters

Copyright registration of your screenplay, especially if you write it on spec, is a good idea. But there are some common questions and considerations that we often seen from screenwriters, and so we offer the following guidance:

Writers Guild + Copyright Registration

Registering your screenplay with the Writers Guild of America (WGA) is a good practice, but it does not provide the same protection as copyright registration. Think of WGA registration as an intra-industry venue for dispute resolution. But if you need to file a lawsuit for copyright violation, you need to register with the U.S. Copyright Office. Registration with the U.S. Copyright Office is not merely about proving what you wrote and when; it is a prerequisite for filing a claim and prima facie evidence of your authorship of the work.

Although copyright automatically protects screenwriters the moment their scripts are written, a “timely” registration is required to be eligible for statutory damages and attorney fees in a winning lawsuit. Without eligibility for these damage awards, proceeding with a claim is often impractical. “Timely” registration means before an infringement begins, and so, it is best to register before your script is shared with agents, festivals, prospective buyers, et al.

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Worth Knowing

Copyright protection lasts for your lifetime plus 70 years, and the rights are “descendible,” meaning they can be passed down to children or any heir(s) you name.

Copyright rights are separate from credit in the U.S.. Most screenplay rights are either owned by producers who hire writers or are obtained as part of the production process. But this has no bearing on your credit as the writer.

Although it is common to transfer all copyright rights for the purpose of producing a motion picture, you may try to negotiate retaining some or all the rights to publish the screenplay in book form at some point, adapt into a stage play, etc.

Some Things to Consider Before You Apply for Copyright Registration . . .

Derivative Works

Adaptations, remakes, spin-offs, and new series episodes are all examples of “derivative works.” Under the law, the copyright owners of the original works have the right to authorize (or not authorize) derivative works. So, if you have a written agreement from the copyright owner, for example, to adapt a novel as a screenplay, you may register that script. But if you write a script in order to pitch a project to the copyright owner, the Copyright Office may reject your application to register that screenplay until you obtain permission for creating that derivative work.

If your script is based on a prior work of your own (e.g., your novel)[1] or the prior work is in the public domain (copyright expired), naturally you do not need permission. But it is still a new, derivative work as a matter of copyright law. And when you register with the Copyright Office, only your authorship that is new to that work is being registered. Thus, in the copyright registration process, you would note the original work in the Limit of Claim section of the application. It isn’t necessary to go into any detail, you simply tell them that you are disclaiming some “text” while also claiming the new “text.” If there is ever a dispute, that’s when the details will be sorted out.

Work for Hire

If you were hired to write the screenplay, it may be a Work Made for Hire. That means that even though you did all the actual writing, the law considers the hiring party to be the “author” of the screenplay, and therefore also the initial copyright owner. The Copyright Office will only accept registration applications from the author, copyright owner, or the agent of one of those.

Jointly Written Screenplays

As an operation of law, you and any writing partners are automatically equal owners of the copyrights in a jointly authored screenplay. (Any different arrangement is a matter of written agreement among the joint authors). The Copyright Office allows registration applications from any of the joint authors and requires the application to list the other writers as additional authors/copyright claimants. Be sure to have their contact information handy when you file.

Material(s) in Your Deposit Copy

The file you upload for registration (usually a PDF) is called the “Deposit Copy” by the Copyright Office. To avoid complications, the Deposit Copy should not contain material other than the text of your script—e.g., no illustrations, even as cover art. Additionally, if there is an appreciable amount of work you did not write (e.g., a substantial quote from another writer), this should be disclaimed in the Limit of Claim part of the application.

About Screenplays and Copyright Infringement

Although writers are understandably anxious about one day seeing their work appear on screen without having been part of the project, it is important to remember what copyright law does not protect before you assume a theft has occurred. Copyright does not protect the following:

  • Ideas
  • Facts
  • Common themes
  • Stock characters
  • Short phrases
  • Titles

RightsClick cofounder David Newhoff wrote a more in-depth article on this topic for Pipeline Artists.

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[1] If you did not transfer those rights to anyone else by contract.

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World Photography Day: AI and the Photographic Copyright

Happy World Photography Day!

Napoleon Sarony was the most famous celebrity photographer of the late 19th century. His studios in New York City, especially his final location at Union Square, were visited by actors, politicians, artists, writers, military leaders, et al. whose portraits were made into cabinet cards—a popular collectible of the era. Not everyone knows Sarony’s name as a photographer, but every copyright expert knows his place in copyright history—one whose relevance endures into the many discussions now being had about generative artificial intelligence (GAI).

Every artist is thinking about GAI today. On one hand, many artists feel tremendous anxiety, even anger, about protected works used to train the models—especially if the products might be used to eliminate creative jobs. At the same time, artists are already experimenting with certain GAI tools that may expand rather than constrain creative possibilities. As that story unfolds, and the various copyright implications are worked out, we wanted to highlight why the history of photography and copyright is at the center of discussion on AI policy.

Historians may quarrel over whether Louis Daguerre or James Talbot deserves credit for inventing modern photography, but there is no doubt that the daguerreotype was rapidly popularized beginning in 1839, and that the world of visual arts was changed forever. It was not until 1865 that photographs were added to the protection of U.S. copyright law, and almost 20 years later, the constitutionality of that addition was challenged in a landmark case called Burrow-Giles Lithographic v. Sarony.

At issue was Napoleon Sarony’s photograph of Oscar Wilde (“Oscar Wilde No. 18”), which the lithographic company had copied and reproduced as tens of thousands of cabinet cards. Sarony filed suit in 1882, and the defendant argued that photographs were made by machine–not by human “authorship”–and that Congress had, therefore, exceeded its constitutional authority to protect the medium under the Copyright Act. In 1884, the Supreme Court unanimously decided that despite the machine (camera), which caused the image to be fixed on the plate, Sarony’s photograph of Wilde revealed clear evidence of human authorship.

“Oscar Wilde 18” by Napoleon Sarony. Gilman Collection, Purchase, Ann Tenenbaum and Thomas H. Lee Gift, 2005. Metropolitan Musesum

The reason this landmark case is relevant in context to GAI is that the nature of “authorship” is again being challenged. Some parties have argued that human authorship is not required for copyright rights to attach to a work, but we believe that argument will continue to be rejected by the Copyright Office and the courts. More complicated is the question of how to assess creative expression when AI tools are used by the human artist. This naturally reprises the question faced by the Court when it sought to understand Sarony’s means of expressing his “mental conception” through the mechanical medium of the photograph.

When Napoleon Sarony was a teenager, he worked as a lithographer, and the word “invent” was still used in copyright law to describe the illustration of a print. He could hardly have imagined that his name would still be invoked a century later in context to machines that can autonomously “invent” expressive elements in new works. Going forward, as copyright experts, Congress, and the courts seek to strike a new balance between protected creative works and unprotected GAI outputs, you will hear or read Sarony’s name often because the conversation we’re having today began with photography.

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RightsClick co-founder David Newhoff is the author of a book about the Sarony case, entitled Who Invented Oscar Wilde?:  The Photograph at the Center of Modern American Copyright.

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Court Strengthens Protection for Visual Artists

In November 2023, we discussed the “server test” (or server rule) as a controversial defense to copyright infringement used by website operators. To reiterate the basics, when a web platform “displays” a work (usually a photograph or illustration) by embedding a link that points to another party’s server, the Ninth Circuit has held that this does not infringe the rights of the copyright owner. That precedent was established in 2007 in the case Perfect 10 v. Google, but since then, several courts have taken issue with the “server test,” and now we can add the District Court for Utah to that list.

The problem many rightsholders, copyright experts, and we at RightsClick® have with the “server test” is that the law clearly states that “public display” of your work is your exclusive right. And it should not matter how a user of your work causes it to be displayed. Courts outside the Ninth Circuit, including the copyright-rich Second Circuit, have begun to express this general opinion as well. In fact, in a ruling this week in the Utah court, Judge David Barlow reversed his own prior decision in a case involving the display of photographs by Annie Leibovitz.

At issue, the site comicbookmovie.com (CBM) displayed Leibovitz’s photographs from a series she created in conjunction with the motion pictures Star Wars: The Last Jedi and Star Wars: The Rise of Skywalker. The plaintiff Trunk Archive, managing licensing rights for these photographs, sued CBM, and initially, Judge Barlow held that they presented no reason to set aside the “server test” precedent. Asked to reconsider, the same court has now stated the following:

The court now finds the “server” test to be unpersuasive. The Perfect 10 court reasoned that Google did not “display” the copyrighted works at issue through embedded links because it did not possess a copy of the works on its servers. But possession of a physical copy is not a prerequisite to displaying a copyrighted work. Instead, the plain text of the Act makes clear that “[t]o ‘display’ a work means to show a copy of it, either directly or by . . . any other device or process[.]”

As we said in our last post on this subject, the “server test” is a question that could go to the Supreme Court, especially if the circuit courts continue to be split on the rule. For now, we agree with Judge Barlow that the text of the copyright law is clear and that the “server test” may one day be a relic of the courts grappling with an internet it didn’t quite understand. When photographs and visual works are infringed rampantly online, it is especially important that at least commercial users like the one in this case are held responsible for obtaining permission to use those works. If the ill-conceived “server test” is finally dropped it means one less dodge for those who make excuses for using your work without permission or compensation.

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The Lucky Shot May Be Quite Valuable

Everyone owns copyrights. But not everyone has a need to enforce their rights. As an operation of law, copyright rights “attach” to a work the moment it is created—and the most common type of work that almost everybody creates is the photograph. Typically, we tend to think about copyright in context to professional photography, and this makes sense. But today, with high-quality cameras in every hand and social platforms that turn shared images into “memes,” sometimes the unexpected snapshot or short video will go viral and acquire market value.

As we reported recently, Laney Griner owns the rights to a photograph she took more than a decade ago of her toddler Sam, and that photo gained online popularity as the meme “Success Kid.” Griner both registered the photograph with the U.S. Copyright Office and, on occasion, licensed the image for commercial use. And recently, Griner proved that just because a work is online—even as a popular meme—that doesn’t make it free to use by anyone for any reason. When former Congressman Steve King used “Success Kid” as campaign material, Griner sued for copyright infringement and won. This would not have been possible without registering “Success Kid” with the Copyright Office.

Of course, “luck” doesn’t only apply to the amateur. Many professional photographers recognize that “luck” is often part of capturing that award-winning or iconic image. And it is no surprise that these works are widely shared online. But even if it isn’t practical or proper to take legal action against every use, there will inevitably be a use (like Rep. King’s use of “Success Kid”) that the creator does care about.  As such, professional creators should make registration part of their workflow—especially to protect the best and most popular works.

Meanwhile, millions of images and other protectable expressions are shared online every day by people who don’t think of themselves as professional creators. And occasionally, a creative work—usually a photograph—becomes popular for years. And if you should ever have this happen with one of your photos, you might want to consider registering that work with the Copyright Office. Because that lucky shot just might be worth more than you think!

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Federal Court Affirms: Memes are not a Copyright-Free Zone

We’ve all become accustomed to the never-ending parade of iconic images that get picked up as viral “memes.” From Grumpy Cat to Distracted Boyfriend and many more, people seize on images that starkly convey basic emotions and copy them, adding their own context, often to humorous ends. But somewhere there is a photographer who took those photos – what about their copyright rights?

Last week the 8th Circuit Court of Appeals issued its decision in Griner v. King, a copyright infringement suit arising from unauthorized use of a photo that had achieved “meme” status. Laney Griner is the mother of Sam Griner, the subject of the photo. During a family trip to the beach, Laney took a photo of Sam that would launch him to internet fame.

Ms. Griner’s photo of Sam was reproduced countless times on social media, often just for fun. She was able to secure licensing fees from several major corporations to use the photo in advertisements.. Seizing on the popularity of the meme, then-Congressman Steve King’s campaign used the photo in a fundraising advertisement. Griner demanded the campaign stop the use and compensate her. King refused. and she filed a copyright infringement lawsuit in district court in Iowa

There was no doubt that the entirety of the copyrighted photo was used without a license. So, the case turned on whether the King campaign could justify its use as fair use. There was little need for the court to discuss the second and third factors of the fair use test: the photograph is a creative work and the campaign used the entire image. The fourth factor – harm to the market or potential market for the work – seems to us to favor the copyright owner. After all, Griner had an ongoing licensing business for the work. But in this instance, the court wrote that the plaintiff’s licensing revenue had declined and that it could not, therefore, ascertain the actual market impact. Thus, it held the fourth factor favored neither party.

So, the outcome of the case turned on the court’s analysis of the first fair use factor: the purpose of the use. Commercial uses are disfavored, and nonprofit uses are favored, especially where the use is transformative. Transformative use has been the subject of numerous court cases, including two relatively recent Supreme Court decisions. To be transformative, the new use must comment on the original work and/or use it with a different character or purpose.

In Griner’s case, the court found there was no comment or new purpose; the campaign used the creative expression in the photograph for its popularity. The campaign tried to argue that it was doing nothing different than millions of others who reproduced the meme, but the court saw through that argument, noting that most of those uses are noncommercial while the campaign was trying to raise money with the photo. As a result, the court affirmed the lower court’s judgement of infringement.

Because Griner had registered her photo of Sam with the U.S. Copyright Office prior to the King campaign’s infringing use, she was able to elect statutory damages and request that the defendants pay her attorneys’ fees. As it turns out, the jury awarded only the minimum statutory damages and denied her request for payment of attorneys’ fees, apparently because the campaign convinced them that the infringement was genuinely an innocent error. This doesn’t seem quite right to us, but that’s the job of the jury.

Above all, this decision is an important re-affirmation of copyright rights online and we’re glad the court got it right. While the low damage award in this case is because the jury was satisfied the use was “innocent,” in ordinary infringement cases statutory damages are up to $30,000 per work infringed. In instances of “willful” infringement, the cap goes all the way to $150,000 per work.

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Registration: One Work, One Author, Lots of Rules

The Single Application Form

The least expensive registration avenue offered by the Copyright Office is the Single Application form. For $45 ($20less than the Standard Application), you can submit your registration. However, the Copyright Office views this as a special discount and limits the use of Single Application.

As the name suggests, you may only submit one work and that one work must be by one author who is also the sole owner of the copyright in the work. So, for example, you sat down and wrote a short story entirely on your own and not based on anyone else’s work. Or you made a graphic design that is 100% your work. Unpublished works can be registered in groups of up to ten, but the Single Application may be used for published or unpublished works. But be careful! The Copyright Office is strict about its rules and this form has a number of restrictions. For instance:

  • If you had a joint author or the  work was made for hire, you may not use this form.
  • If you are the sole author but sold or gave away some or all the copyright ownership, you may not use this form.
  • If the work incorporates someone else’s prior work or is adapted from another author’s work, such as a screenplay based on someone else’s novel, you may not use this form because some aspects of the work are not your authorship. In fact, the Limit of Claim restrictions with this form are so potentially confusing, that we recommend using the Standard Application in these circumstances.
  • Audiovisual works can rarely be registered using the Single Application because they are often works for hire but almost always involve creative contributions from more than one author. The only way you can likely use this form for an A/V work is to register a selfie video—no other actors or voices, no one else’s music or sets, and so on.
  • Likewise with music, if you record a performance of someone else’s composition, you may not use the Single Application because you must Limit the Claim to indicate that the composition belongs to another author/copyright owner

One Work Means One Work

Be sure the deposit copy you send in contains only the ONE WORK being registered. If the deposit contains extra material, even for promotional purposes, the Office may reject the application on the basis that you have submitted more than a single work. For instance…

If you have a group of short stories or poems that you consider a single book, the Copyright Office will not register that through the Single Application. Depending on the circumstances, these could be registered as a group of unpublished works with a group application, or through the Standard Application as either a single unit of publication or a collective work. Those all involve other requirements, but the point here is even if you consider it a single book, the Copyright Office won’t let you use the Single Application.

If you include illustrations or photos, or even long quotations, you shouldn’t use the Single Application. For instance, if the Copyright Office decides a quote is long enough to be considered someone else’s authorship, it may refuse registration and tell you to file again using the Standard Application.

The Single Application is a better deal on the fee if you qualify. Just be sure that you really do qualify. Remember the fees are non-refundable and the Copyright Office won’t credit fees paid toward a new application – you’ll have to start all over again.

If you qualify for a Single Application and want RightsClick to file that for you, click the button below.

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Creative Experience: Photographer Michole Forks

Michole Forks

Michole Forks, age 35, is a professional photographer in the Bay Area. He’s passionate about working with families to create meaningful portraits.

Micholino Photography

How long have you been a professional photographer, and how did you get your start?

I have been a professional photographer for 10 years. My journey in photography began as a kid in the 1990’s running around darkrooms at my mom’s job at Chroma Copy Imaging. Chroma Copy was a San Francisco based provider of comprehensive large and small format graphic solutions. My mom and dad worked together in the shipping and handling department where they would package and send out big print jobs for the advertising departments of Macy’s, Nordstrom’s and other high end retail companies. 

In college, I ran into my high school friend Rey who was doing street photography with a Canon AE1.  He took me under his wing and taught me the foundational skills of photography. We worked together on a few small projects, and I fell in love with portrait photography, capturing the essence of my subject in a single frame. Rey at the time was doing galleries, and he inspired me have my first solo gallery show in 2011. After my show, I decided that I wanted to peruse photography more seriously instead of as a hobby, and I took the leap of faith to dive into the professional field.  

I also work in education and taught PE in elementary schools here in the Bay Area. I blended my passion for working with youth with my passion for photography, and that’s how I’m able to keep my sessions playful and engaging with the families I work with.

What are your favorite subjects and why?

My favorite subject is taking portraits of families because each family has its own dynamics, stories, and shared experiences. Being able to document these sacred moments of togetherness and love is incredibly fulfilling.

Is your business driven by client work, sales, licensing, or some combination?

The bread and butter of my business is family sessions, but I also do engagement, maternity, graduation sessions, etc. In the future, I would like to expand my reach into licensing my work to local small businesses.

What’s the best thing about working in the current market?

The best thing about working in today’s market is seeing how fast technology has been improving within the photographer space and how AI has improved and enhanced workflows.

What’s the most challenging thing about working in the current market?

The most challenging issues that I’ve been facing are people not realizing the importance of documenting their most cherished moments of life and properly preserving them in a tangible format outside of the cloud infrastructure. I think people rely too much on social media to save and store their life’s milestones forever, thinking those images and videos will be accessible and readily available 20, 30 years down the line.

Do you retain all rights to your work?

Yes! And all my work to date has been registered with the U.S. Copyright Office through RightsClick

Have you had instances of unauthorized use (piracy) of your work? If so, how did you handle it?

I had a situation with a small business that wanted professional headshots for themselves and their employees last year it was a learning experience. I sent my client a preview gallery to review and to create a favorite’s list of their top photos to purchase. They selected a few but wanted some additional editing for a few photos. I sent the invoice and provided the revised versions but did not hear a response back from them, so I decided to try a different email provided on their website, and that’s when I saw one of my images from our session already on the company’s website!

I did some additional research and found that the client had already put them on his personal LinkedIn page and other websites without paying for the session yet. At the time of the infringement, I did not have insight or direction to know how to handle the situation, so I went to google and found DMCA. I emailed him a DMCA takedown notice, and he responded immediately but If I would have registered my work before sending him previews, I would have had more legal leverage in the situation.

When/why did you come to understand the importance of registering your work with the Copyright Office?

Being a member of ASMP I became aware of the importance of registering my work with the Copyright Office through webinar videos in the ASMP Academy.  I watched a video about the importance of registering your work and how you can turn copyright infringement into income, and I become hooked and realized how important it is for photographers to protect their work.

How did you find RightsClick, and has it been useful in your business?

RightsClick has been of the best and most important additions to my workflow in my business because it’s an investment in protecting and creating actual income from my work. I remember trying to register my work using the eCO system, but it was complicated. RightsClick is quick, and simple to use. Before sending out my work to clients, I make sure to register to the photos to ensure maximum protection before the images go out to the public and online.

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What is Original in Copyright Law?

In casual conversation or art criticism, we tend to use the word original to describe a new work that stands out for one reason or another. But in the world of copyright law, original is not that kind of judgment. Instead, it is a minimum standard for claiming authorship in a work. In fact, the legal standard states that a work must show a “modicum of creativity” for copyright rights to attach to the work.

Because of this low threshold for originality, the Copyright Office does not reject most works for registration on that basis. For instance, no registration specialist is going to read your screenplay and decide it’s a story that’s “been done too many times” and then reject it. By contrast, a visual artwork that consists of nothing more than a circle in the middle of a square (or a banana duct-taped to a wall!) can be expected not to reach the originality threshold.

What Type of Work?

If this sounds like originality considerations vary depending on the type of work, they do. For instance, with a graphic design that contains a word or two, the words’ meaning, no matter how clever, will not be considered; only the design elements in the visual work will matter in assessing its copyrightability. Another field that often entails the most difficult questions is applied art. When an object has both a functional purpose and creative elements, the Copyright Office will consider only the creative elements independent of the utilitarian function of the item.

Think of a glass-blown vase and whether it can legitimately be considered a sculpture separate from its function as a vase. The functional elements will be discounted by the Copyright Office. Similarly, designs intended to be used for fashion or wardrobe—e.g., textile patterns that can be registered as visual works—may be protected, but these elements are viewed separately from their assembly into useful clothing. Thus, a whole dress, with its necessary elements of neckline, waist, length, etc. forms a useful article, which will not be protected.  

Although there are very few hard rules about originality, one that comes up a lot is titles. The Copyright Office has a categorical rule that titles, individual words, and short phrases are not copyrightable. So yes, you could write a book and give it the title, Harry Potter and the Order of the Phoenix without infringing copyright. But you better make sure it’s about a cab driver in Arizona or some other subject matter very different from a boy wizard!

Overall, rejection of registration for lack of originality is not very common. At the same time, the Copyright Office does not often reverse these decisions, and requests for consideration cost additional fees. If you have doubts about whether a particular work would be considered original, seek the advice of an experienced copyright attorney, including the legal services offered by any organization to which you may belong.

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SCOTUS Decision a Win for Copyright Owners

This morning, in the case Warner Chappell Music, Inc. v. Nealy, the Supreme Court decided how far back a plaintiff can recover damages for copyright infringement. The decision is a win for copyright owners.

A Decade of Infringement

The Copyright Act has a statute of limitations of three years, and it is generally agreed that this time begins to run from the moment a plaintiff discovers, or should have discovered, the infringement. The issue in this case is how far back can the damages calculation go? Nealy discovered the infringement and filed suit within three years of that discovery, but the infringement had been ongoing for a decade.

The District Court ruled that damages could also only go back three years, but the 11th Circuit reversed and held that damages can be calculated from the beginning of the infringement. This is known as the “discovery rule.” Today the Supreme Court upheld the discovery rule, allowing creators to obtain damages for infringements of their work for as long as the infringement has been running–as long as they file their infringement suit within three years of discovering the infringement.

This matters to you even if you never go to court., When you are negotiating with someone who used your work without permission, they now face the prospect of a larger damages award if they call your bluff and end up in litigation..

And remember, registration with the Copyright Office is required before you can file an infringement suit. So, whether you plan to sue or just want the option, get those works registered!

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AI and Copyright Registration

If you’re feeling confused about copyright and artificial intelligence, you’re not alone. Many of the issues and conflicts related to this topic are going to work their way through lawsuits and policy changes over the next few years. Meanwhile, the Copyright Office has issued guidelines for registering a work that contains some element(s) produced with generative artificial intelligence (GAI). Although the guidelines themselves are a bit confusing, here are some key points:

Registration Requires Human Authorship

First, be aware that the Copyright Office position is that any material entirely produced by GAI (i.e., has no human authorship) is not protected under U.S. copyright law, and they will not register it. Material produced through a combination of human authorship and GAI may be protectable, if the human authorship is sufficient. So, the Copyright Office requests that an applicant disclose anything in their work that was produced by AI and to describe the human authorship that was added. 

Disclaiming AI in a Registration Application

The Copyright Office guidance on how to communicate this is based on the same principle as limiting your claim—i.e., a way of telling the Copyright Office that some element(s) of the work are not your authorship. A simple example might be a book you wrote with illustrations produced by GAI. Just like any other Limit of Claim, you can tell the Office that you are claiming copyright in the Text and are disclaiming copyright in the Artwork thus:

registration and ai

Additionally, you can further explain to the Office that what is being disclaimed is GAI material. So, for instance, in a note to the Examiner/Specialist, with the above example, you might write, “The illustrations in this book were created using artificial intelligence.” You need not be more detailed than that.

Alternatively, you might register a book containing your writing, some artwork you created, and some artwork that was produced with GAI. Here, you would state that, in addition to the Text, you both claim and disclaim Artwork thus:

registration and ai

And then, you would tell the Office something like, “Some of the artwork was created using artificial intelligence.”

A more nuanced example might be a single visual work that combines your authorship with the use of GAI. Here the limit of claim page might look like this:

registration and ai

But in your description to the Office, this is where it is important to emphasize your contributions to the work. Again, you may not need to go into elaborate detail. The goal is to make a good-faith declaration that at least some aspect of the work was generated by artificial intelligence and some by human authorship.

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5 Reasons Photographers Should Build Copyright Registration into the Budget

It’s affordable.

As an afterthought, any kind of fee might seem pricey. But when you’re planning a project, accommodating less than $100 is probably easy. And because that will cover the registration of up to 750 images on one application, you can protect the photos from a whole job, or possibly more than one job.

It’s a high-value practice.

For example, a group of 100 images costs less than $2 per image to register. But the value of a copyright infringement of just one of those images may be thousands, or tens of thousands, of dollars. Most claims settle out of court—and for a lot more than $2—but what motivates settlements is that registration number issued by the Copyright Office.

It makes contracts meaningful.

You know the old saying about a contract not being worth the paper it’s printed on. Well, this cliché just might apply to that paragraph about retaining your copyrights—if you don’t register the photos. Without registration, your remedies for infringement are so limited that you may not be able to enforce the rights reserved by contract.

It’s good for business.

When you register your photographs, you protect yourself and your clients. If you do commercial work, for example, and some other business uses a photo in a way your client doesn’t like, their best remedy may be helping you enforce your copyright rights. If so, they will truly appreciate your diligence in taking care of registration.

It’s easy with RightsClick.

In a matter of minutes, you can submit a group of several hundred photographs for registration from your RightsClick portfolio, and your application is usually filed with the Copyright Office within 24 hours. You will avoid the hassles of the registration system, and you will build and organize your portfolio according to copyright-relevant information you will need if enforcement becomes necessary.

Click here to learn how easy it is to make copyright registration part of your workflow!

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Taking Action:  DMCA Takedown & Responding to the Infringer of Your Work

When you discover an unauthorized use of your work on a website, there are often two separate but related steps you can take. RightsClick is designed to help you do both and to help you keep track of these actions in your already busy schedule. First, it is essential to understand the difference between the web platform hosting your work and the party who made improper use of your work—because they may not be the same.

For instance, when someone uploads infringing material to a site they don’t own or control (e.g., to YouTube) that person or business is the infringer, and the website is not generally not liable. One action we recommend against is taking your complaint straight to social media to shout at the infringing party. Instead, as the copyright owner, you may wish to take both of the following steps:

1) send a DMCA takedown notice to the hosting web platform to request removal of your material; and

2) consider legal action against the party who used and uploaded your material without permission.

Taking both actions in RightsClick begins with the Infringement Assessment in the Enforcement menu. The Infringement Assessment tool is a simple form you fill out in a few minutes that will guide you in evaluating the strength of your claim, as well as store important information you will need later. RightsClick will then generate an Assessment Summary and give you options to take immediate action, including sending a DMCA takedown notice; sending a preformatted Cease & Desist (C&D) notice to the infringer; or to initiate contact with an attorney—either one you already have, or one listed in RightsClick.

DMCA Takedown

A DMCA takedown notice only requests that the material be removed from the platform. The notice must contain certain information and truthful statements; it must come from a copyright owner or his/her lawful agent; it must be sent to the platform’s registered DMCA agent; and the platform provider is expected to comply with a valid notice. The enforcement tools in RightsClick include a preformatted DMCA notice and simple tools to help you quickly send a notice to the correct registered agent. The information entered into the Infringement Assessment tool will automatically fill out the DMCA notice for you to send to the registered agent. Plus, a calendar item will be added to your To Do list reminding you to follow up—for instance, to confirm whether the platform complied with your request.

taking action

Cease & Desist Notice

You may also choose to contact the individual or business that made unlicensed use of your work to resolve the matter. Once you identify this party, and obtain at least a valid email for them, you can take certain steps yourself to try to resolve the matter quickly (and for free!) before deciding whether to contact an attorney.

Again, the information captured in the Infringement Assessment tool can be used to generate a pre-formatted C&D email sent by you to the party who made infringing use of your work. You can choose to demand only that the use stop; demand that the use stop and that the party pay you a fee of your choosing; or state that you will allow the use for a period of time for a fee of your choosing. All three of these options are available in the built-in C&D tool.

The C&D notice is stored in your Portfolio, associated with the specific Title. The notice is sent via your email, and you keep 100% of any payment by the party who made the unauthorized use. It’s your work and your money. That’s the philosophy on which we built RightsClick!

In building these enforcement tools, our theory was that if you can respond to, say, 10 infringers in the minutes between your real working hours, and if even just a few of those parties resolve the matter by paying you, the time spent will have been more than worth the minimal effort. Also, if you wish to contact an attorney—either right away or after failing to resolve the matter through C&D—you can research and make contact with attorneys in the list we provide and then send them the Assessment Summary to get the conversation started. You can also print or download the Summary to send to any attorney of your choosing.

And, as we continue to preach from the rooftops, ALL your efforts to remedy infringements are made stronger when your work is registered with the U.S. Copyright Office.

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Understanding Limit of Claim in Copyright Registration

When you submit an application to register your work, the Copyright Office asks you to state what you authored and also to “limit” your claim by noting elements of the work that are either someone else’s authorship, or even your own prior authorship. While that can be confusing, it’s actually not too hard.

Claiming copyright in your work while excluding (or disclaiming) someone else’s authorship is pretty straightforward. For example, if you wrote a book that includes photos or illustrations that are other people’s works, you don’t need to tell the Copyright Office who made those works, when they were made, or how many of those works there are. In this example, you would simply disclaim the visual works to inform the Copyright Office that you are not claiming those as part of the book being registered.

This same principle applies when you have created a derivative work,* such as an authorized screenplay based on someone else’s novel or a book sequel in a series you did not originate.. In these examples, you have written new material based on the characters, and perhaps the plot elements, from someone else’s work. Here, you would simply check the “Limit of Claim” boxes to indicate that you are disclaiming literary elements (the prior author’s work) and also claiming your new authorship. If you want to explain any specifics, you can do so in the note to the examiner so they understand more fully.

limit of claim
“Literary Work” example shown.

You are also asked to disclaim your own prior authorship of any elements in a new work being registered. This is because copyright law considers each work to be distinct, and in each work, only the new authorship is protected. For instance, The Cat in the Hat Comes Back has its own registration, but only for the new creative work that was not already registered in the original The Cat in the Hat.

A related question we hear often is whether any changes to a prior-registered work always requires a new registration. You might make edits to an unpublished manuscript or change the color work on a photograph or add a key change to a musical work that was previously registered with the Copyright Office. In many instances (e.g. minor stylistic edits), a new registration is not necessary. The question depends on the extent to which you have created new material that is potentially vulnerable, on its own, to infringement and should, therefore, be registered. On this subject, it’s a good idea to seek the advice of an attorney. In fact, because different expressive media imply different considerations, this is an excellent question for the legal services provided by your advocacy organization, if you are a member.

Finally, the Copyright Office also asks whether the disclaimed work has a registration number. This is something you are more likely to know about your own work than someone else’s work, but you can search the registration records. The registration number of the disclaimed work is not required, but if supplied, it can help maintain a more accurate record.

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Tepp to Speak on NY Times v. OpenAI

On Tuesday, March 12 at Noon EDT, RightsClick co-founder Steve Tepp will join a panel discussing the copyright case NY Times v. OpenAI. The Times alleges copyright infringement by parent company Microsoft and its OpenAI subsidiary, which operates the ChatGPT generative AI platform. 

Like many authors and other creators, the Times is suing for the unauthorized scraping of their protected works for the purpose of building a generative AI system, which, some cases, provides outputs that are substantially similar to the works ingested.

Tepp will discuss the two main legal issues in the case: whether OpenAI’s scraping of works involved “reproduction” under the Copyright Act and, if so, whether OpenAI has a viable fair use defense. On the first point, it seems clear that Open AI must have copied the works, and the only reason there can be any question about this is the lack of transparency as to how developer operates. We’ve seen this tactic before — hiding the details of the technology in ways that frustrate law enforcement. But it isn’t credible and Tepp doesn’t believe it will work.

The fair use question is the bigger one. Others on the panel are expected to argue that generative AI systems are so useful in general that the manner in which they were built should be overlooked. Tepp disagrees. In fact, the Supreme Court’s most recent copyright decision, Warhol Foundation v. Goldsmith, makes it clear that doing cool stuff isn’t enough to justify trampling creators’ rights. And just as RightsClick is a tool to help creators protect their rights, Tepp will be a voice for protecting creators in the courts.

You can register here to register for the webinar. There will be a Q&A session following the discussion.

Bipartisan Report on AI Recognizes Creators’ Rights

Just before finishing work for the year, the U.S. House of Representative’s bipartisan Task Force on Artificial Intelligence released its report. That document is over two hundred fifty pages long and covers everything from agriculture to national security. About twenty-five of those pages are dedicated to intellectual property, including copyright, which includes clear recognition of the importance of protecting American creators.

One of the biggest issues with AI is the fact that most of the biggest generative AI systems have been built by scraping millions, if not billions, of copyrighted works without permission, payment, or even notice to the copyright owner. The AI companies saved up money to litigate against copyright owners and about two dozen copyright infringement cases are pending around the country. The House report awaits the outcome of those cases, but notes that creators’ livelihoods are at stake, writing “While continued progress in AI is welcome, those advancements must not stifle the continued flourishing of human creativity…a legislative environment that fails to ensure creators’ IP rights are protected may harm America’s creative community.”

Another question is whether and when AI outputs can be copyrightable. The Copyright Office has published a “guidance” document, but many have criticized it. At 28 pages in length, it is hardly written to be accessible to independent creators. The House report likewise notes that the Copyright Office has left “questions unanswered” and “need further clarification.” The Copyright Office has stated its intent to revise that guidance in 2025 and also has committed to issue Parts 2 and 3 of its report on copyright and AI in 2025. We certainly hope these documents will provide clarity and strong support for the need to respect and enforce creators’ copyright rights.

The House report also mentions one other aspect of U.S. copyright law that we at RightsClick remind creators as often as we can, “Copyright protection is also limited unless the copyright is registered with the U.S. Copyright Office…registration enables the copyright owner to file an infringement lawsuit and to access the full scope of available remedies.”

Whether you want to protect your business and your work from AI-based theft or just ordinary unauthorized uses, the first step is registration with the Copyright Office. That’s why RightsClick makes it quick and easy to register and take control of your rights!

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