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.

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.

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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